Summary
ruling that a retaining wall "was a known dangerous condition not likely to be appreciated by young children" where "from the side from which [the child] approached it had the appearance of a low curb"
Summary of this case from Reed v. National Council of Boy Scouts of AmericaOpinion
No. 4913.
Argued April 4, 1961.
Decided May 31, 1961.
1. Hospitals and charitable institutions enjoy no immunity from liability and owe the same duty to trespassers, licensees and invitees as any other corporation or individual.
2. Where the defendant hospital permitted children to visit relatives in the hospital from the outside and through the room window and the plaintiff six-year-old child after so visiting and while her parents were visiting inside the hospital fell from an unguarded retaining wall on the hospital premises where she was playing, her status was that of a gratuitous licensee and not a trespasser.
3. Where the defendant hospital permitted such visiting and its officials had knowledge that children played in the area and that a portion of the retaining wall was unguarded and presented a known dangerous condition not likely to be appreciated by young children and gave no warning to the plaintiff, its conduct could properly be found to constitute negligence.
4. The charge to the jury in a negligence action for injuries sustained by a six-year-old child, in falling from an unguarded retaining wall on the defendant's premises where she was visiting as a gratuitous licensee, that the child was "chargeable with a duty, at least, of conducting herself as a child of that age would be expected to" was not prejudicial to the defendant on the issue of contributory negligence, nor was the jury misled thereby.
ACTIONS OF CASE, to recover for injuries suffered on September 4, 1953, at Peterboro, by Sharon Wheeler, a child of six years and ten months, brought by her mother and next friend, Margaret E. Wheeler and a companion case by the mother for medical expenses incurred as a result of the injuries to the child against the defendant hospital, a charitable institution. The child was injured on the defendant hospital's premises, while visiting a patient, with her parents. While walking on top of a retaining wall, she lost her balance and fell to the level below. Trial by jury, with a view, resulted in verdicts for the plaintiffs. The defendant's motions for nonsuit, directed verdict and judgment notwithstanding the verdict and for new trials on various grounds were denied by Leahy, C.J., who reserved and transferred the defendant's exceptions thereto. Additional facts are stated in the opinion.
Walter Gentsch and McLane, Carleton, Graf, Greene Brown (Mr. Brown orally), for the plaintiffs.
Devine, Millimet McDonough and John S. Holland (Mr. Holland orally), for the defendant.
In this jurisdiction it is established doctrine that hospitals and charitable institutions enjoy no immunity from liability for negligence. Welch v. Hospital, 90 N.H. 337; anno. 25 A.L.R. 2d 29. Their duty to trespassers, licensees, and invitees is the same as any other individual or corporation. One of the accepted facts of modern living is that hospitals expect visitors for their patients and that in the normal course of events they may bring their children with them to the hospital subject to such regulations as the hospital may prescribe.
A sick aunt who occupied a room on the first floor of the hospital had asked for the six-year-old plaintiff and her eight-year-old brother and the parents took them to visit her. By regulation and custom children were not allowed in the rooms of patients but were allowed to "visit through the window." The children did visit the aunt in this manner and played on the lawn outside the window where they were told to stay while their parents were inside the hospital. Near a parking lot was a retaining wall seven to nine feet high, a portion of which was unguarded and unprotected by a fence. Children had in the past played in the area and the hospital officials frequently "warned the children to stay away from the area." The plaintiff child, who was following her brother in walking on the retaining wall, took two or three steps and fell to the level below.
The evidence justified a finding by the jury that the defendant created and maintained a hazard which was a known dangerous condition not likely to be appreciated by young children in the absence of adequate warning by the hospital. McCaffrey v. Company, 80 N.H. 45, 49; James, Tort Liability, 63 Yale L.J. 144, 176; Labore v. Company, 101 N.H. 123, 125. There was no warning to this injured child and the retaining wall from the side from which she approached it had the appearance of a low curb. See Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U. of Pa. L. Rev. 629. No good reason appeared why a part of the retaining wall was unguarded and unprotected particularly in view of the fact that the hospital officials were aware that this area was not safe for children. The defendant's conduct could be found to constitute negligence. Restatement, Torts, s. 342, comment b; Nickerson v. Association, 96 N.H. 482.
The Trial Court correctly instructed the jury that the plaintiff was a gratuitous licensee and not a trespasser. Sandwell v. Elliott Hospital, 92 N.H. 41; Nickerson v. Association, supra. See Restatement, Torts, Second (Tent. Draft No. 5, 1960) s. 343B. The phrase "gratuitous licensee" may not be a happy one (Restatement, Torts, s. 331) and it may be eliminated in the future (see Restatement, Torts, Second, s. 331 (Tent. Draft No. 5, 1960)), but the instructions given were an accurate application of the law as it has developed in this state. See Maxfield v. Maxfield, 102 N.H. 101, 103; Davis v. Company, 100 N.H. 12, 14.
The defendant contends that the Court's charge to the jury on the contributory negligence of the plaintiff child was erroneous in that the Court "in effect, took away from the jury that question." The charge in this instance could have been stated differently but the jury were informed that the child "is chargeable with a duty, at least, of conducting herself as a child of that age would be expected to . . . ." We cannot say that the instructions stated the issue in a way that could mislead the jury or that in the circumstances they were prejudicial to the defendant. Charbonneau v. MacRury, 84 N.H. 501; Dorr v. Railway, 76 N.H. 160. Restatement, Torts, s. 464. Prosser, Torts (2d ed.) p. 128; 2 Harper James, Torts, s. 16.8 (1956).
The denial of the defendant's motions for nonsuit, directed verdict, judgment notwithstanding the verdict and a new trial present no error and the verdicts are substantiated by the record. Anno. 71 A.L.R. 2d 427.
The plaintiff asks us to overrule Sandwell v. Elliott Hospital, 92 N.H. 41, even though that is not necessary to sustain this verdict. We think a more appropriate time to consider the matter would be a case where both parties have an opportunity to argue the question in the light of the changes and developments that are being considered in chapter 13, Liability for Condition and Use of Land in Restatement, Torts, Second (Tent. Draft No. 5, 1960) and (Tent. Draft No. 6, April 7, 1961).
Judgment on the verdicts.
All concurred.