McCurry v. Young Men's Christian Ass'n

313 N.W.2d 689, 210 Neb. 278, 1981 Neb. LEXIS 1049

• Court: Nebraska Supreme Court
• Decided: December 28, 1981
• Docket: 43830
• Status: Published

Opinions

Per Curiam.

The plaintiff, Edward L. McCurry, was injured on March 27, 1977, when he fell while playing basketball on an outdoor asphalt playground owned by the defendant, Young Men’s Christian Association. He brought this action to recover for the damages he sustained by reason of his injuries in the accident.

The second amended petition alleged the defendant was negligent in failing to properly maintain the surface of the playground and in failing to warn the plaintiff of the dangerous condition of the surface of the playground. The answer alleged the plaintiff was contributorily negligent and had assumed the risk of injury.

At the close of the plaintiffs evidence, the trial court sustained the defendant’s motion for a directed verdict and dismissed the plaintiff’s petition. The plaintiff has appealed.

The claimed defect in the surface of the playground was a depression in the surface of the asphalt, described by the plaintiff as 2 to 3 feet long, 2 to 3 inches wide, and l/2 to 2 inches deep. There was no evidence as to how long the defect had existed or when the defendant may have known about it.

The playground itself was fenced. There were two gates in the fence, one of which was padlocked. The other gate was open.

The plaintiff was 33 years of age. Although the plaintiff had played on the playground approximately once a week during the summer of 1976, he was not a member of the YMCA and had not obtained any express permission to use the playground.

The day of the accident was a “nice, warm day.” After the plaintiff had entered the playground, he took a couple of practice “shots” before the game began. There were five other players participating in the game. According to the plaintiff, he had received the ball, had faked another player out of position, and was going toward the basket when he fell. Upon direct examination the plaintiff testified as follows: “Q. You indicated that you were going towards the basket and you fell; is that correct? A. Yes. Q. Now, after you fell did you determine what you had fell on? A. It was a — Q. Did you determine that, did you determine after you fell what you fell on, yes or no? A. I didn’t know what it was that 1 fell on. After I got up I started to pain, I couldn’t walk.” It is quite clear from the record that the plaintiff did not know what caused him to fall, but noticed the depression after the accident and concluded that it must have been the cause of the accident.

William John Pilcher, a former brother-in-law of the plaintiff, was playing in the game at the time the plaintiff was injured. According to Pilcher the accident happened when the plaintiff was “going for a layup.” Pilcher testified, “He just went up and he just -- he just went, just went down.”

The second amended petition alleged that the plaintiff was a “patron and invitee” on the playground at the time of the accident. The evidence is undisputed, however, that the plaintiff was not a member of the YMCA and had not obtained express permission to use the playground. Although the defendant did not prevent the plaintiff and others from using the playground, there is no evidence of an invitation to the public to use the playground.

One who, solely for his own personal pleasure, convenience, or benefit, enters the premises of another with the consent of the latter but without an invitation, express or implied, is a bare licensee. Kruntorad v. Chicago, R. I. & P. R. Co., 111 Neb. 753, 197 N.W. 611 (1924). Under the circumstances in this case, the plaintiff had the status of a licensee and was not an invitee.

The owner or occupant of property owes to a licensee the duty only to refrain from injuring him by willful or wanton negligence or a designed injury, or by failure to warn of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee in the exercise of ordinary care. Hackney v. Klintworth, 182 Neb. 219, 153 N.W.2d 852 (1967); Presho v. J. M. McDonald Co., 181 Neb. 840, 151 N.W.2d 451 (1967).

If we assume for the purpose of discussion that the depression in the surface of the playground was a defect, the evidence is clear that it was open and obvious. It was not a hidden danger or peril, but was something the plaintiff could have readily discovered by the exercise of even slight care. There was no evidence of willful or wanton negligence or a designed injury.

The evidence failed to show a breach of any duty owed to the plaintiff by the defendant for which the plaintiff could recover for his damages. The order dismissing the petition at the close of the plaintiffs evidence was not erroneous.

The judgment of the District Court is affirmed.

Affirmed.