Henryetta Construction Co. v. Harris

SUPPLEMENTAL OPINION ON REHEARING

IRWIN, Justice.

On Rehearing, defendant argues that plaintiff was at most a hare licensee. Under the facts herein presented, we can not sustain this argument. When plaintiff was upon the bridge in a general area where his presence was necessarily required, presumptively desired, his presence should have been reasonably anticipated because of its connection with defendant’s business.

A building inspector’s presence upon the premises in discharge of his duty is for a purpose connected with the owner’s or occupant’s business, and there is a mutuality of interest in the subject to which the inspector’s presence relates. An invitation is inferred in cases of common interest or mutual advantage. Julian v. Sinclair Oil and Gas Co., 168 Okl. 192, 32 P.2d 31; Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472, 128 A.L.R. 1013. By all respectable authority a building inspector is accorded the status of persons entering by invitation and stands on an equal footing with a business visitor or invitee. 20 R.C.L., Negligence, Sec. 54, p. 62; 38 Am.Jur., Negligence, Sec. 126, p. 786; Annotations in 128 A.L.R. 1021.

True it is, the law does not require the possessor of land to protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered. The possessor’s duty applies to conditions or in-strumentalities which “are in the nature of hidden dangers, traps, snares and the like.” Safeway Stores, Incorporated v. Sanders, Okl., 372 P.2d 1021; Hull v. Newman Memorial Hospital, Inc., Okl., 379 P.2d 701. A hidden danger within this rule of liability need not be totally or partially obscured from vision or withdrawn from sight; most generally, the phrase is used to denote a condition presenting a deceptively innocent appearance of safety “which cloaks a reality of danger”. Deception, camouflage, deceit and fraud in concealment are the very concepts to which the hidden peril theory of liability traces its historical origin. Initially the principle was applied in favor of licensees. Almost from the very inception the rule did embrace within its ambit “an act of making a hole in a path and leaving it insufficiently covered.” W. H. Griffith, “Licensors and ‘Traps’,” 41 The Law Quarterly Review, pp. 255, 258; Mull v. Roosevelt Irr. Dist., 77 Ariz. 344, 272 P.2d 342.

Familiarity with the physical condition which causes plaintiff’s injury does not serve to bar conclusively his right of recovery. Nor does it alone make him guilty of contributory negligence in what he does or fails to do. “Want of ordinary care, and not knowledge of the danger, is the test of contributory negligence.” Grantham v. Watson Bros. Transportation Co., 142 Neb. 362, 367, 6 N.W.2d 372, 9 N.W.2d 157,158; see also, Surface v. Safeway Stores, Inc., 8th Cir., 169 F.2d 937, 940. The attention which one must give to his surroundings in governing his actions is not a legal absolute. It will vary in accordance with circumstances.

Familiarity with the existing physical conditions at most operated to discharge defendant’s obligation to warn him of the existence of such conditions. But the question of whether defendant did, under the facts, fail in his duty to provide plaintiff adequate protection, by means of guards, barriers or other devices or measures, from harm occasioned by the dangerous condition of its own creation, remained one for the jury. Prosser, Handbook of the Law of Torts, Sec. Ed., pp. 459, 460. To a bare licensee the possessor of land owes merely the duty to exercise reasonable care to dis*532close to him dangerous defects which are known to him and are unlikely to be discovered by the licensee. Toward the business visitor, such as plaintiff, the possessor owes the additional duty to exercise reasonable care to make the premises reasonably safe for the reception of such visitor. See, Restatement of Torts, Secs. 342, 343, Comment.

As we view the evidence, it cannot be said as a matter of law that want of protective covering in the offending instrumentality was apparent and readily observable. The condition so created may have presented an appearance of safety to one who was unaware of the defect. The question was properly one for the jury. Magnolia Petroleum Co. v. Barnes, 198 Okl. 406, 179 P.2d 132, 135.

Rehearing is accordingly denied.

JACKSON, V. C. J., and WILLIAMS, BLACKBIRD, HODGES and LAVENDER, JJ., concur.

HALLEY, C. J., and DAVISON and BERRY, JJ., dissent.