No. 92-134
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
DORIS BARROWS,
Plaintiff and Appellant,
-vs-
BRIAN BARROWS,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph C. Engel, 111, Attorney at Law, Great Falls,
Montana
For Respondent:
Jeffrey T McAllister; Conklin, Nybo, LeVeque
. &
Murphy, Great Falls, Montana
Submitted on Briefs: November 12, 1992
Decided: December 22, 1992
Piled:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order in the Eighth Judicial
District, Cascade County, granting a directed verdict in favor of
responaent Brian Barrows (Brian). Appellant Doris Barrows (Doris)
sued Brian, her son, for damages incurred when she slipped and fell
on the floor of his home. At the close of Doris' evidence, Brian
requested a ruling on his pretrial motion for summary judgment and
moved for a directed verdict. After oral argument on the summary
judgment issue, the court dismissed the jury and directed entry of
final judgment in favor of Brian. We affirm.
Doris, a 62 year-old widow, resides in Shelby, Montana. On
December 21, 1989, she went to Texas to visit Brian, who was then
an assistant elementary school principal in Clyde, Texas. She
testified that the purpose of her visit was to spend the holidays
with Brian and his family. She had visited them earlier that year,
spending three weeks there in June shortly after her husband died.
For her Christmas visit, she expected to stay until January 24,
3.990.
On January 15, 1990, Doris was alone in the house. Brian and
his wife, a school teacher, were at work. They were attempting to
sell. their house themselves, and they had asked Doris to show it
that day to two sets of prospective buyers. Doris showed the house
to the first set of buyers in the morning. Then, having several
hours to wait for the other buyers, she decided to scrub and wax
the linoleum floor in the kitchen. Brian and his wife had not
asked her to do this, but she felt it would improve the appearance
of the house for prospective buyers.
After washing the floor with soap and water, using a string
mop, Doris searched for and found a bottle of floor wax and a wax
applicator. She dried the floor by going over it with the wrung-
out mop and then applied the wax in the manner prescribed by the
manufacturer's instructions, squeezing a small puddle onto the
floor and spreading it evenly with an applicator. She completed
the task by waxing her way across the kitchen to an adjoining
carpeted area where she waited half to three-quarters of an hour
for the wax to dry. After touching the floor and finding that the
wax seemed dry enough to walk on, she walked across the kitchen
toward the area she had waxed first. Near the edge of the linoleum
she slipped and fell, breaking her right hip.
Doris required extensive surgery, for which she was
hospitalized two weeks. She spent the next several months
recuperating at Brian's house before returning to Montana in May
1990. Only then did she have an opportunity to examine the pants
she was wearing at the time of her accident. She found a stain on
the right leg, which she believed to be floor wax.
In her complaint, filed in November 1990, Doris alleged that
she had fallen on Brian" floor because it was n*uneven'*
and wax had
accumulated in low spots, and that Brian's negligence, in failing
either to correct the unevenness of the floor or to warn her about
it, was the cause of her injury. Brian's answer denied these
allegations and stated that Doris* contributory negligence either
barred or diminished any recovery she might obtain. In an earlier
deposition he acknowledged that the floor was uneven but stated
3
that he had not believed it to be unsafe and that he had not
foreseen any hazard due to wax puddling on the floor.
Brian moved for summary judgment four days before the
scheduled trial date. In his brief supporting that motion he
argued that because the injury and the alleged tortious conduct
occurred in Texas, Texas law should apply. Accordingly, he relied
on Texas case law for the proposition that because Doris was a
licensee, not an invitee, in his home at the time of the accident,
he owed her only a duty of reasonable care to correct or to warn
her about a dangerous condition of which he had actual knowledge.
The District Court, applying Texas law, found that as a matter
of law Brian did not have actual notice of a dangerous condition
and therefore had neither an opportunity to warn Doris nor an
opportunity to remedy the condition. Therefore, the court
concluded, the evidence was insufficient to take the case to the
jury.
A motion for a directed verdict is properly granted only in
the absence of any evidence to warrant submission to the jury, and
all inferences of fact must be considered in a light most favorable
to the opposing party. Britton v. Farmers Insurance Group (1986),
221 Mont, 67, 88, 721 P.2d 303, 317. The issue on appeal is
whether the court failed to consider, or failed to consider in a
light most favorable to Doris, evidence that warranted submission
of the case to the jury. Questions of fact that Doris contends
should have been given to the jury include:
1. Whether Doris was a licensee or an invitee at the time she
was injured.
4
2. Whether the condition of Brian's floor was inherently
dangerous or posed an unreasonable risk of harm to Doris.
I
Doris argues that she was an invitee, not a licensee, because
her activity in showing the house conferred an economic benefit on
Brian. Since she was an invitee, she argues, Brian's duty under
Texas law was to exercise reasonable care to eliminate a condition
that posed an unreasonable risk of harm to her, of which he had
either actual or constructive knowledge.
Brian argues that Doris was only a licensee, because the
primary purpose of her visit was to spend time with him and his
family during the Christmas holiday, and that incidental chores
undertaken by a licensee do not convert her status to that of
invitee. We agree.
Under Texas law, an invitee is "a person who is invited to
enter or remain on land for a purpose directly or indirectly
connected with business dealings with the possessor of the land. .
. . Without this element of invitation, . . . the potentiality of
benefit to the occupier is not enough to make the visitor an
invitee." Prestwood v. Taylor (Tex. Ct. App. 1987), 728 S.W.2d
455, 462. A social guest, "who comes on the premises for his own
purposes with the occupier's permission or consent, rather than as
a business invitee whose presence serves the occupieris economic
interests,"is a licensee. Buchholz v. Steitz (Tex. Ct. App.
1971), 463 S.W.2d 451, 453.
Doris claims that her floor-waxing activity at the time she
was injured was "exclusively related to her real estate agency of
5
showing the house to prospective customer^.^ She testified,
however, that during this visit and her earlier visit to the same
house she took it upon herself to help with cooking and general
housekeeping, though she had never washed or waxed the kitchen
floor.
The District Court properly found that the primary purpose of
Doris' presence in Brian's house was social. She was not invited
to help sell the house. Her continuing presence was a result of a
planned month-long visit and was not conditioned on her showing the
house to prospective buyers. Further, her floor-waxing activity
reflected her customary willingness to help out, not a new status
as Brian" agent or employee.
There is no evidence of business dealings between Doris and
Brian, and no evidence that Doris' activities provided the direct
pecuniary benefit to Brian that is required, under Texas law, to
convert a social guest to a business invitee. Prestwood, 728
S.W.2d at 464. The District Court properly held that as a matter
of law, Doris was a licensee.
Doris' status is important under Texas law because it
determines the duty Brian owed her as landowner or possessor.
Texas has adopted Restatement (Second) of Torts, 5 342, which makes
a possessor liable for physical harm to a licensee caused by a
condition on the possessor's property only if the possessor has
actual knowleds that the condition exists and
-- that it is
dangerous. State v. Tennison (Tex. 1974)' 509 S.W.2d 5 6 0 (a duty
to warn a licensee of a dangerous condition arises only when the
licensor knows of the condition likely to cause harm; actual
6
knowledge rather than constructive knowledge is required).
If Brian knew that the floor presented an unreasonable risk of
harm to Doris, he had a duty either to remedy the defect in the
floor or to warn Doris that it was dangerous. Brian testified,
however, that he was not aware that wax would pool on the floor,
and that he did not know Doris was going to wax the floor. The
District Court properly ruled that as a matter of law Brian did not
have actual knowledge of a dangerous condition.
I1
Doris argues that it was error for the District Court to
concentrate on the waxing of the floor when expert testimony showed
that the floor was "inherently dangerous." She relies on McKethan
v. McKethan (Tex. Ct. App. 1972), 477 S.W.2d 357, 361, in which the
court held that a licensee who slips and falls on a freshly washed
floor cannot recover unless there is proof that the washing of the
floor created a dangerous condition or that the floor was
inherently dangerous and this fact was unknown to the licensee.
The court in McKethan implied that the plaintiff would have
recovered if the floor had been shown to be inherently dangerous.
Doris contends that the unevenness of the floor created an
inherently dangerous condition that was known to Brian but not to
Doris, and that Brian had a duty to warn Doris or remedy the
defect. She cites a letter from Brian to Dorisv lawyer, admitted
in evidence and dated July 31, 1990, in which Brian acknowledged
that the kitchen floor is "defective in places, as a result of the
unevenness of the underlying concrete slab," and stated that he
should have corrected the defect.
Brian did not write this letter, however, and he testified
that he had signed it without consulting an attorney and without
knowing that it might make him legally responsible for Dorisv
injuries. He also testified that the sentence in the letter
stating that Doris had slipped on wet wax in an uneven part of the
floor represented assumptions he had made after the accident, not
knowledge that he had had before the accident.
The expert testimony to which Doris referred was given by
Dennis Parr, a civil and structural engineer. Dr. Parr testified
that based on an investigator's measurements and photographs, the
floor in Brian's kitchen sloped one-quarter inch in three feet and
that %'generally accepted standardsn require no more than one-eighth
lnch deviation in ten feet. He also testified that a homeowner who
knew that the floor was "out of level this much" should re-level it
because it was not safe. Doris contends that this testimony
created a genuine issue of material fact regarding the inherent
dangerousness of the floor, making summary judgment improper.
While we agree that Dr. Parr's testimony does raise factual
issues--e.g., whether the floor sloped in such a way as to create
a pool of wet wax on the spot where Doris fell--it does not address
the critical issue of Brian's knowledge. It was not the slope
alone that caused the accident, but the combination of the slope
and the wax. Brian had no knowledge of either the slope or the
wax.
If Brian did not have actual knowledge that the floor sloped
and that the slope created an unreasonable risk for a guest in his
home, he owed no duty to Doris to warn her or repair the defect.
8
Thus, a factual issue concerning the condition of the floor is
immaterial, and the District Court did not err in concluding that
Brian owed no duty to warn or repair.
It is an elementary principle of law that before a claim
for relief can be made against a defendant for
negligence, the existence of a duty by the defendant to
the plaintiff must be shown, along with the breach of the
duty and a resulting injury.
Rollins v. Blair (1989), 235 Mont. 343, 346, 767 P.2d 328, 330.
A motion for a directed verdict or for a judgment
notwithstanding the verdict "rests on a finding that the case of
the party against whom it is directed is unsupported in some
necessary particular. Nicholson v. United Pacific Ins. Co.
(19851, 219 Mont. 32, 37, 710 P.2d 1342, 1345. Here, a directed
verdict was proper because Doris failed to make a prima facie case
of negliqence. The judgment of the District Court is affirmed.
/i"
We concur: /
December 22. 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
G a y L. Spaeth
Spaeth Law Firm
P.O. Box 1361
Red Lodge, MT 59068
Won. Marc Racicot, Attorney General
Michael S. Wellenstein, Assistant
Justice Bldg.
Helena, M?' 59620
Damon L. Gannett
Gannett CL Ventrell
175 No. 27th St., No. 1306
Billings, h4T 59103
A. W. "Tony" Kendall
Carbon Cormty Attorney
P.O. Drawer U
Red Lodge, MT 59068
E D SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA