Ridley v. Spence

456 S.W.2d 846, 61 Tenn. App. 571, 1970 Tenn. App. LEXIS 304

• Court: Court of Appeals of Tennessee
• Decided: March 26, 1970
• Status: Published

Opinions

PURYEAR, J.

The plaintiff, Mrs. Janice G. Bidley, was injured while she was a social guest on the premises of defendant, Miss Juanita Spence, in Nashville, Tennessee, and this suit was filed by plaintiff' against defendant to recover damages for such injury.

The declaration alleges that on or about April 3, 1967, the plaintiff was a. visitor and guest on premises owned by the defendant, upon which, premises there was a frame residence and a brick garage apartment, the latter of which had been recently constructed.

Said declaration further alleges that, while being escorted around the apartment and the garage by the defendant, the plaintiff came to the front of the garage area, where an overhead door was opened by the defendant in order that the plaintiff and other guests might see the garage; that as the plaintiff stood just outside the garage entrance, the defendant suddenly unexpectedly and negligently pulled the overhead garage door down, causing it to strike plaintiff’s head a violent blow, as a result of which plaintiff was injured.

To this declaration, the defendant filed a general issue plea of not guilty and the case was tried before the Circuit Judge and a jury on the 3rd and 4th days of June, 1969.

After all the evidence presented by both the plaintiff and defendant had been introduced and. both parties announced that they had concluded introduction of evidence, defendant moved the trial Court to grant a directed verdict in favor of defendant upon the ground that since the uncontroverted evidence showed the plaintiff was a social guest and there being no evidence that the defendant was guilty of gross, wilful, or wanton negligence, there was no legal basis for a recovery of damages by the plaintiff.

This motion was sustained and the trial Court directed a verdict in favor of defendant. Thereafter, within the proper time, plaintiff filed a motion for new trial, which was overruled and this appeal resulted.

Two assignments of error have been filed, which are as follows:

“1. The Trial Court erred in granting the defendant’s motion for a directed verdict at the conclusion of all the proof.

2. The Trial Court erred in holding that the defendant would be liable to the plaintiff under the circumstances shown by the proof only if guilty of gross negligence or Avilful or wanton misconduct. ”

While there is considerable controversy as to the extent of plaintiff’s injury, there is little, if any, controversy about the way and manner in which the accident occurred.

The night the accident occurred, which was April 3, 1967, the plaintiff and defendant, together with several other persons had attended a birthday supper being given for a mutual friend of theirs at the B. & W. Cafeteria in Nashville.

After supper, plaintiff went to the telephone to call her daughter and request her daughter to come to the B. & W. Cafeteria and take her home. However, the defendant and two of her friends offered to take the plaintiff home, which offer was accepted by plaintiff, but it was first decided that all four of these people would stop at the home of defendant at 2200' Natchez Trace, where the defendant had recently completed building a garage apartment on her premises and which apartment the defendant wanted them to see.

After looking at the apartment, they decided to also see the garage, which garage Avas equipped with a door that was opened by raising it up into the ceiling and closed by pulling it down, which opening and closing was accomplished manually.

After the parties had looked at the garage and while the defendant was talking to her other two guests, she started closing the garage door by pulling it downward, at which time the door struck plaintiff upon, the head. Although the plaintiff was not knocked down by the blow, she was injured, but there is no insistence made by plaintiff and no evidence in the case to show that the accident ivas caused by any wilful, wanton or grossly negligent conduct on the part of defendant.

It is the plaintiff’s theory that the defendant did not exercise ordinary care in closing the garage door, as a result of which failure to exercise ordinary care, the plaintiff was injured.

As we have heretofore stated, the trial Judge held that, in the absence of evidence of wilful or wanton misconduct or gross negligence, the plaintiff could not recover and he, therefore, directed a verdict in favor of the defendant.

As has been held in numerous cases in this State, the rule for determining a motion for a directed verdict requires the trial Judge and the reviewing Court on appeal to look to all of the evidence, to take the strongest ligitimate view of it in favor of the opponent of the motion, and to allow all reasonable inferences from it in his favor ; to discard all countervailing evidence, and if then, there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the Avhole evidence, the motion must be denied. General Motors Corp. v. Dodson (1960), 47 Tenn.App. 438, 338 S.W.2d 655; Poole v. First Nat. Bank (1946), 28 Tenn.App. 327, 196 S.W.2d 563; Phillips v. Newport (1945), 28 Tenn.App. 187, 187 S.W.2d 965 and many other cases.

Likewise, and in reverse order, it is true that where there is no material and determinative evidence to support a verdict for the opponent of the motion it must be sustained. Cude v. Culberson (1947), 30 Tenn.App. 628, 209 S.W.2d 605; Camurati v. Sutton (1960), 48 Tenn.App. 54, 342 S.W.2d 732.

After considering the authorities which have been cited and those we have been able to find by independent research, we have concluded that the trial Judge correctly directed a verdict in this case.

The case upon which the defendant relies most strongly is Walker v. Williams (1964), 215 Tenn. 195, 384 S.W.2d 447, in which case the plaintiff was a social guest of the defendants when she received a fall that resulted from the fact that a screen door, she was in the act of opening when she fell, had a broken spring, by reason of which she was not required to push the door as hard as she had been accustomed to pushing it when the spring was functioning in the usual manner.

In that case the trial Court directed a verdict for defendants, this Court affirmed the trial Court and certiorari was granted by the Supreme Court. After the Supreme Court had heard arguments and carefully considered briefs filed by both parties, the Court adopted the opinion of this Court, written by Judge Cooper, and quoted Judge Cooper’s opinion verbatim, which opinion contains the following:

“ ‘Plaintiff urges that the benefits to a host from social intercourse are just as real as monetary benefits derived from business visitors, and that we should not follow the universal rule classing social guests as licensees, but should give them the same status as business visitors. We have given serious consideration to plaintiff’s argument, and in doing so have examined a number of cases from other jurisdictions wherein a similar argument was made and rejected. See cases set out above. As a result we are convinced that we should join the great current of authority and hold that a social guest is not in law an invitee but is a licensee to whom the owner owes no duty except to refrain from willfully injuring him or from committing negligence so gross as to amount to willfulness, or from leading him into a trap. Jack M. Bass & Co. v. Parker, 208 Tenn. 38, 343 S.W.2d 879; Birdsong v. City of Chattanooga, 204 Tenn. 264, 319 S.W.2d 233; Smith v. Burks, 43 Tenn.App. 32, 305 S.W.2d 748; Westborne Coal Co. v. Willoughby, 133 Tenn. 257, 180 S.W. 322.

‘In the instant case no claim is made, nor is there any evidence whatever to show that defendants were guilty of any wilful or wanton misconduct nor that the defendants led the plaintiff into a trap. Consequently, we are of the opinion that the trial court’s action in directing a verdict for the defendants; was correct. ’ ’ ’ Supra, pp. 201, 202, 384 S.W.2d p. 450.

In the later case of Anthony v. Anthony (1969), 60 Tenn.App. 143, 444 S.W.2d 714, this Court cited Walker v. Williams, supra, and applied the rule:

“ * * that a social guest is not in law an invitee but is a licensee to whom the owner owes no duty except to refrain from willfully injuring him or from committing negligence so gross as to amount to willfulness, or from leading him into a trap.’ ” Supra, p. 715.

In the instant case, however, plaintiff insists that the holding in Walker v. Williams, supra, and Anthony v. Anthony, supra, are not applicable because those two qases dealt only with factual situations in which liability was sought to be predicated upon negligence consisting of allowing the existence of defects in the premises upon which the guest was injured, whereas, in the instant case liability is sought to be predicated upon negligence of the defendant arising out of an activity carried on by defendant upon her premises.

Plaintiff further insists that we should follow the rule adopted by the Supreme Court of Washington in Potts v. Amis (1963), 62 Wash.2d 777, 384 P.2d 825, in which case the plaintiff, a social guest upon premises of the defendant, was injured as a result of the defendant negligently striking plaintiff with a golf club while demonstrating its proper use.

In that case, the Washington Court partially overruled several cases previously decided by that Court, holding that the mere fortuitous circumstance that the injury occurred while plaintiff stood upon land belonging to the defendant should not relieve the defendant of liability and held that regardless of plaintiff’s status as a licensee, the defendant, in carrying on the activity in demonstrating the proper use of a golf club, owed plaintiff the duty to use reasonable care not to injure him.

However, some rather strong dictum in the case of Westborne Coal Co. v. Willoughby, 133 Tenn. 257, 180 S.W. 322, decided by our Supreme Court in 1915, prevents us from adopting the rule laid down by the Supreme Court of Washington in Potts v. Amis, supra, although it seems that the Washington Court has adopted the majority rule.

In the Willoughby case, the defendant was operator of a mine which employed one James Willoughby, but on the day the accident occurred, which resulted in the death of Willoughby, he was not at work but was merely on the premises of the defendant in the capacity of a licensee. His death occurred as- result of the accidental explosion of some blasting powder which was, at the time, being transported on an electrically driven car.

Although, the evidence did not show what caused the explosion to occur, it was the theory of plaintiff’s intestate that the negligent operation of the car by defendant’s employees caused an electrical spark to ignite the powder. In commenting upon plaintiff’s theory of the ease, the Supreme Court said:

“It does not appear that such a phenomenon had ever before occurred at the mines, or that any of defendant’s servants had any reason to suspect that such a result might occur from running the motor over said waste left upon the track at the sandhouse. Let it be assumed, though not decided that the plaintiff in error would be liable to one of its invitees as for negligence on account of an occurrence such as is alleged to have happened, through the direction of its foreman Boone, in ordering the car to be loaded, knowing that it would be transported in the manner stated, and in not having the track inspected at the point, where it passed by the sandhouse for the purpose of ascertaining whether it was incumbered with sand; still, this negligence would not be such as would make the plaintiff in error liable to a licensee, because it would be only an inadvertence, a want of care. It would not be. an absence of care in a matter so obvious as to indicate the certainty or great probability of danger. White v. [Nashville C. & St. L.] Railroad, 108 Tenn. 739, 70 S.W. 1030; Railroad v. Meacham, 91 Tenn. 428, 19 S.W. 232.” Supra, pp. 262, 263, 180 S.W. p. 324.

In that case, the plaintiff also insisted that the defendant was guilty of what is called “active” negligence as distinguished from “passive” negligence and that in such a case there is liability to a licensee.

In commenting upon this insistence, the Supreme Court further said:

“The term ‘active negligence’ (to recur for a moment to that specific subject), is one of extensive meaning, obviously embracing many occurrences that would fall short of willful wrongdoing, or of crass negligence; for example, all inadvertent acts causing injury to others, resulting from the failure to exercise ordinary care; likewise all acts the effects of which are misjudged; or unforeseen, through want of proper attention, or reflection. So the term, as a. general one, is too broad. It covers acts of willful wrongdoing, also those which are not of that character. Therefore it is not reliable as a measure of right or duty for the purpose of determining liability in cases of the kind before us. Under such a rule, there would be no distinction between the duty owing to licensees and trespassers on the one hand, and invitees or others to whom the exercise of ordinary care is due.” Supra, p. 268, 180 S.W. p. 325.

Thus, it will be seen that the doctrine of distinguishing between liability predicated upon “active” negligence and liability predicated upon “passive” negligence has not been accepted by the Appellate Courts of this State, but on the other hand, the doctrine was expressly rejected in Westborne Coal Co. v. Willoughby, supra.

In other jurisdictions, there is a lack of uniformity on the question of a distinction being made between liability predicated upon “active” negligence and liability predicated upon “passive” negligence.

In view of what our Supreme Court said in Westborne Coal Co. v. Willoughby, supra, we feel constrained to adopt the reasoning of the Second District Court of Appeals of Florida in Cochran v. Abercrombie (1960), 118 So.2d 636, 79 A.L.R.2d 986, wherein it was held that a host was not liable to a licensee where the host’s negligence consisted of conducting an activity upon his own premises without exercising ordinary care.

In this latter mentioned case, the plaintiff went to defendant’s residence for the purpose of discussing a proposed fishing trip, and while there the defendant requested plaintiff to step over to the carport for the purpose of looking over the motor of defendant’s automobile. The defendant raised the hood and, while leaving plaintiff in front of the car observing the motor, which was not then running, the defendant opened the door of the car and engaged the starter while the car was in forward gear, as a result of which the car lurched toward the plaintiff and injured him.

The trial Court directed a verdict in favor of the defendant upon the ground that the plaintiff was a licensee and that under the case law of Florida, the standard of care owed to a licensee was to refrain from wilfully or wantonly injuring him.

In rejecting the doctrine of active and passive negligence and affirming the directed verdict of the trial Court, the Appellate Court said:

“While no Florida cases have been cited in the briefs of either plaintiff or defendant where the facts are similar to those in the instant case, we feel that the case of Pensacola, St. Andrews & Gulf S. S. Co. v. Austin, 1912, 63 Fla. 241, 58 So. 611, 613, precludes our adopting the ‘active’ and ‘passive’ negligence theory which is urged by the plaintiff. In that case the negligence of the defendant can be classified as ‘active’, although the words ‘active’ and ‘passive’ were not used to distinguish the types of negligence. The negligence involved in the instant case would undoubtedly be held in the jurisdictions which have adopted the ‘active’ and ‘passive’ negligence theory to be ‘active’ negligence. Following the reasoning in the Pensacola, St. Andrews & Gulf S. S. Co. v. Austin case, supra, then, we must decline to adopt from other jurisdictions the ‘active’ and ‘passive’ negligence theory.” Supra, pp. 638, 639, 79 A.L.R.2d pp. 989, 990.

The assignments of error are respectfully overruled and the judgment of the trial Court is affirmed. The plaintiff-appellant will pay all of the costs of this appeal.

Shriver, P. J. (M.S.), concurs. Todd, J., dissents.