Summary
In Fabrizio v. Youhas, 148 Conn. 426, 172 A.2d 69 (1961), the plaintiff's decedent, a licensee, died after falling down cellar stairs owned by the defendant.
Summary of this case from Flint v. ShrakeOpinion
The plaintiff's decedent was a social guest of the defendant B in the latter's house. The status of the decedent was, therefore, that of a licensee, and the defendant's duty to her was limited to the exercise of reasonable care (a) to refrain from actively subjecting her to danger and (b) under certain circumstances to warn her of certain types of dangerous conditions on the premises. Since the complaint failed to allege a breach of the duty thus owing, recovery was impossible and the verdict for the plaintiff could not stand. There was no persistent failure by the plaintiff to correct a defect in the pleadings after it was pointed out, and no lack of any evidence which would warrant a recovery under proper pleadings. Under all the circumstances, it could not be said that if the trial court had set aside the verdict for the plaintiff, as it should have, it would have been an abuse of discretion for the court to have denied the defendant's motion for judgment notwithstanding the verdict and to have ordered a new trial. The remand on the appeal from the judgment on the verdict must, therefore, be for a new trial rather than for entry of judgment notwithstanding the verdict.
Argued May 3, 1961
Decided May 29, 1961
Action to recover damages for the death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Fairfield County and tried to the jury before Devlin, J.; verdict for the plaintiff, which the court set aside as to the named defendant, and judgment for the plaintiff against the defendant Bertha Youhas, and for the named defendant notwithstanding the verdict; from the judgment the defendant Bertha Youhas appealed. Error and new trial as to the defendant Bertha Youhas.
William P. Aspell, with whom was George Muir, for the appellant (defendant Bertha Youhas).
Albert L. Coles, with whom was Thomas J. Dolan, for the appellee (plaintiff).
The plaintiff, as administrator of the estate of Rose Fabrizio, instituted this action against the defendants, Anthony and Bertha Youhas, husband and wife, for the recovery of damages for the death of Mrs. Fabrizio resulting from her fall down the cellar stairs in a house owned by the defendants and occupied by them as their home. The jury returned a verdict for the plaintiff against both defendants.
The plaintiff's specifications of negligence, as set forth in his complaint, were (1) that the cellar door opened inward; (2) that the cellar stairway had no railing; (3) that there was no landing at the top of the cellar stairway; and (4) that although all of these defective conditions "were known to the defendants, or in the exercise of reasonable care should have been known to them," they failed to provide proper safeguards for the opening of the cellar door and stairway.
The complaint alleged that the decedent "was visiting" at the defendants' home. All parties agree that on the evidence she was a social guest and consequently her status was that of a licensee. Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693; Lubenow v. Cook, 137 Conn. 611, 613, 79 A.2d 826; Torre v. DeRenzo, 143 Conn. 302, 308, 122 A.2d 25; Hennessey v. Hennessey, 145 Conn. 211, 213, 140 A.2d 473. The duty of one in the position of the defendant Bertha, the appellant, to a licensee like the decedent was recently restated in Hennessey v. Hennessey, supra. It need not be repeated except to note that it is limited to the exercise of reasonable care (a) to refrain from actively subjecting the licensee to danger and (b) under certain circumstances to warn the licensee of certain types of dangerous conditions on the premises. The present complaint contained no allegation even suggestive of a violation of either duty. Once the status of the decedent as a social guest was established, recovery was impossible under the allegations of the complaint. Buol Machine Co. v. Buckens, 146 Conn. 639, 642, 153 A.2d 826, and cases cited therein; Epstein v. M. Blumenthal Co., 114 Conn. 195, 199, 158 A. 234.
Both defendants moved for a directed verdict in their favor under Practice Book 234. After the jury had returned a verdict in favor of the plaintiff, the defendants moved that it be set aside and judgment rendered for them. The court granted the motion as to the defendant Anthony and rendered judgment in his favor notwithstanding the verdict, apparently on the theory that he was not at home during the visit of the decedent and had no knowledge that she would be on the premises. Laube v. Stevenson, supra, 475. The plaintiff took no appeal. As to the defendant Bertha, the court refused to disturb the verdict, and judgment was rendered against her. She claims that this was error and that the case should be remanded with a direction that judgment be rendered in her favor notwithstanding the verdict, as was done, for instance, in Stavnezer v. Sage-Allen Co., 146 Conn. 460, 462, 152 A.2d 312, and Senderoff v. Housatonic Public Service Co., 147 Conn. 18, 21, 156 A.2d 517.
The plaintiff's claims of proof indicate that, contrary to the situation in Senderoff v. Housatonic Public Service Co., supra, under a proper complaint the jury might have been justified in returning a plaintiff's verdict against the defendant Bertha. She, as was her right, chose not to attempt to have the complaint make more specific the decedent's status in "visiting" in her home, nor, by demurrer or otherwise, to raise any question as to the adequacy of the allegations in setting forth a breach of duty to a social guest, that is, a licensee. There is nothing to indicate a persistent failure on the part of the plaintiff, during the trial, to clarify the complaint, as was the case in Stavnezer v. Sage-Allen Co., supra, 461. Apparently neither the plaintiff nor the court appreciated the inadequacy of the complaint even after Bertha had clearly pointed it out in her exceptions to the charge. Under all the circumstances, we cannot say that if the court had, as it should have, set aside the verdict against the defendant Bertha, it would have been an abuse of discretion for the court to have denied the motion for judgment notwithstanding the verdict and to have ordered a new trial. See Attardo v. Ambriscoe, 147 Conn. 708, 712, 166 A.2d 458; Senderoff v. Housatonic Public Service Co., supra; Antonofsky v. Goldberg, 144 Conn. 594, 599, 136 A.2d 338; Parowski v. Bridgeport Hospital, 144 Conn. 531, 534, 134 A.2d 834; Fisher v. Jackson, 142 Conn. 734, 738, 118 A.2d 316; Robinson v. Southern New England Telephone Co., 140 Conn. 414, 420, 101 A.2d 491; Gesualdi v. Connecticut Co., 131 Conn. 622, 631, 41 A.2d 771. It follows that we cannot, in this court, order that judgment be rendered for the defendant Bertha. Robinson v. Southern New England Telephone Co., supra.
As pointed out above, the verdict should have been set aside, since the plaintiff failed to prove a cause of action within the purview of the allegations of his complaint.