Austin v. Buettner

Brune, C. J., delivered the opinion of the Court. The appellant, Austin, then a solicitor of new accounts for The Equitable Trust Company, of Baltimore, visited a tavern at Riviera Beach, in Anne Arundel County, leased and operated by one of the appellees, Vance’s Tavern, Inc., and owned by ⁶⁵ the other appellees, the Buettners. The purpose of Austin’s visit was to solicit business for his employer. He had had no previous contact with Vance’s Tavern, and his call was made in the course of canvassing the Riviera Beach area for customers for a branch of the Trust Company.

He arrived at about eleven o’clock in the morning on September 16, 1952. The weather was bright and sunny. He opened a screen door, took a step and fell down a flight of steps just inside the door, which led to the tavern or rathskeller in the basement of the building. He brought this suit, on his own behalf and to the use of his employer’s compensation insurance carrier, to recover for injuries sustained in the fall against the appellees and against Edwin S. Vance, Olla Vance and William L. Gable individually and trading as Vance’s Tavern, Inc. The trial court directed a verdict in favor of these individual defendants, who were the officers of the corporate defendant; and the appellant concedes the correctness of that action.

Motions for directed verdicts offered by the other defendants, the present appellees, were overruled. The appeal is from judgments in favor of Vance’s Tavern, Inc. (referred to below as “Vance’s”) and the Buettners, entered on their motions for judgment N. O. V., which were made and were granted by the trial court after the case had been submitted to the jury and the jury had failed to agree. (General Rules of Practice and Procedure, Part Three, III, Rule 8.) The issues presented are: first, was Austin an invitee or licensee; second, were either (a) Vance’s, (b) the Buettners, or (c) both, guilty of any negligence or breach of duty resulting in injury to Austin; and third, was Austin guilty of contributory negligence. In addition to the arguments presented in his brief, which dealt with those issues, the appellant added a contention at the argument that the construction of the stairway was such as to amount to a trap set by the owners of the property, the Buettners.

This contention, we think, was not raised at the proper time and in the proper manner under Rule 39, Section 1 of our Rules and Regulations Respecting Appeals, and it will therefore not be further considered in this opinion. Comptroller of the Treasury v. Aerial Products, Inc., 210 Md. 627 , 124 A. 2d 805 . ⁶⁶ 1. Was the Plaintiff an Invitee or Licensee? Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973 , states the more or less traditional classification of those who go upon the premises of others by consent or invitation as (1) bare licensees or volunteers, (2) those who are expressly invited or induced by the active conduct of the defendant to go upon the premises, and (3) customers and others who go there on business with the occupier.

Somewhat different terms are used in §§ 330-332 of the Restatement, Torts, which give these definitions : § 330. “A licensee is a person who is privileged to enter or 'remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.” § 331. “A gratuitous licensee is any licensee other than a business visitor as defined in § 332.” § 332. “A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.” Comment c under § 332 states that “It is not necessary that the visitor’s purpose be to enter into immediate business dealings with the possessor. The benefit to the possessor may be indirect and in the future.” In Peregoy v. Western Maryland R. Co., 202 Md. 203 , 95 A. 2d 867 , the plaintiff, a truck driver, was injured while working in a railway yard by being thrown from a truck when a freight car was shoved against the truck in the course of a switching operation. The plaintiff’s employer had used a part of the railway yard for twenty-five years or so, rent free, for the storage of building materials shipped to it over this railway. The plaintiff was engaged in loading some of such material on his employer’s truck when the accident happened.

The trial court held that the plaintiff was a bare licensee, but this Court reversed that holding. Chief Judge Sobeloff’s opinion defined an invitee or business visitor in much the same terms as are used in § 332 of the Restatement, Torts, saying (at 202 Md. ⁶⁷ 207, 95 A. 2d 869 ) : “An invitee or business visitor is one invited or permitted to enter or remain upon land for a purpose connected with or related to the business of the occupant.” The Railway Company contended that the work in which the plaintiff was engaged was of no benefit to it; but this Court held that view too narrow, and in speaking of the relationship between the plaintiff’s employer and the Railway Company, said: “The mutuality of the benefits is palpable from the undisputed facts.” Judge Sobeloff also quoted from III Elliott on Railroads, 828, the following: “To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor’s business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant.” In Gordon Sleeprite Corporation v. Waters, 165 Md. 354 , 168 A. 846 , a bill collector had gone to the premises of the defendant to collect a bill due to his employer. Finding no one in the office, he crossed a yard and entered the defendant’s factory, where he fell down an unprotected elevator shaft.

This Court said that when he entered the office of the defendant, he was within his rights and was entitled to all the protections and safeguards of an invitee, but held that he lost that status when he entered a different part of the defendant’s premises. See also 65 C. J. S., Negligence, Section 43(1), and 38 Am. Jur., “Salesmen and Soliciting Agents,” Section 121, page 783, each of which speaks of mutual advantage or interest as a requisite element in establishing that one who goes upon the premises of another is an invitee or business visitor. The appellant entered Vance’s business premises for a business purpose.

There is no conflict about that fact, but the appellees contend that the business purpose was that of the appellant and his employer and not that of any of the appellees. The mutuality of interest of the Trust Company on the one hand and of the tavern operator on the other is not so “palpable” as was that of the building materials dealer and ⁶⁸ the railroad in Peregoy v. Western Maryland R. Co., supra; yet we think that banking connections and services are of evident actual or potential business advantage or benefit to one engaged in the business of operating a tavern, just as they would be to one operating, say, a general merchandise store or a hardware store. Accordingly, we hold that the evidence would be sufficient to sustain a finding that Austin, the appellant, was a business visitor, and not a mere licensee of Vance’s when he undertook to enter the premises leased by Vance’s. His position as regards the owners of the premises, the Buettners, will be considered later. 2.

Negligence or Breach of Duty Resulting in Injury to Plaintiff. This case is before us on appeal from judgments N. O. V. in favor of the defendant appellees. Accordingly, “we must assume the truth of all the evidence tending to sustain the suit[s] and of all inferences of fact fairly deducible therefrom, even though such evidence may be contradicted in every particular by opposing evidence.” Rea Construction Co. v. Robey, 204 Md. 94, 97, 102 A. 2d 745, 746 ; Balites v. Bryant, 207 Md. 332, 337-8 , 114 A. 2d 601, 603 , and cases therein cited. At the time of the appellant’s visit to the building in which Vance’s was located, there was a restaurant on the first floor which was operated by persons having no connection with Vance’s.

Austin first attempted to enter the restaurant, but found the door locked. There was another door separated from that leading into the restaurant by a space of perhaps three or four feet, most of which was taken up by a long, narrow window. Both of these doors opened on a public highway. Austin had had no prior engagement or plan to visit Vance’s or the restaurant or any other specific place of business.

He was simply going from door to door of business establishments in the Riviera Beach area to solicit customers for his bank. The outer door leading to Vance’s tavern was open and was fastened back across the narrow window. There was also a screen door at the entrance to Vance’s, which was closed. Austin opened the screen door, stepped inside and fell down the stairs leading to the tavern. ⁶⁹ These stairs came right up to the doorsill.

The top of the sill was five inches above the outside sidewalk, and the tread of the topmost step was eight inches below the top of the sill. The sill itself was fourteen inches from the outside to the inside. The stairs were four and a half feet in width. Most of the risers were eight inches in height from one tread to the next, but one was seven and a half inches, another was seven and three quarters inches, and the bottom one was eight and a half inches in height.

The average was eight inches. The treads were nine and a half inches deep, of which about an inch to an inch and a quarter projected over the top of the riser just below. There was a handrail on each side of the steps and there was a wall light inside the door at a height described by an architect as being at eye level as one entered the door. He expressed the opinion that, largely because of the position of this light, the lighting was inadequate.

The premises involved in this case are the same as those which were involved in Burkert v. Smith, 201 Md. 452 , 94 A. 2d 460 , but the stairs here involved were built after the accident which gave rise to that case. At the time when these stairs were built, the Anne Arundel County Building Code contained two provisions which appear to have been violated by the manner in which the stairs were constructed. The stairs were more precipitous than was permitted by the Building Code, and there was no landing inside the doorway. With regard to the latter point, Section 610, Paragraph 61, Clause (d) of that Code provided: “No exit door shall open immediately on a flight of stairs but a landing the length and width of which is not less than the width of such door, shall be provided between such door and such stairs.

No riser shall be located within one foot of an exit door.” It is suggested that the second sentence of this Clause is in conflict with the first and that it renders the first clause nugatory. A more reasonable construction would be that the second sentence is mere surplusage. Of course, all parts of a statute or ordinance are to be given effect where possible; and we do not find it necessary to adopt either of the above ⁷⁰ constructions in this case. As the appellant suggests, the second sentence can be given a meaning which would avoid conflict with the first.

Such a meaning would prohibit a riser within one foot of the door if one stepped from a landing inside the door onto stairs running parallel with the outside wall and so approaching the door from either side, rather than from directly in front of it. We accordingly hold that the construction of these stairs without a landing in front of the outside door constituted a violation of the above-quoted clause of the Anne Arundel County Building Code. The appellees next urge that even if there was a violation of the Building Code, that alone is not enough to entitle the plaintiff to recover — it must be shown that the violation was the proximate cause of the plaintiff's injury. They then say that since no one knows — not even the appellant — -how he fell, there is no way of establishing any causal connection between the violation of the Building Code and the injuries which he sustained.

It is the rule in this State that the mere violation of a statute or ordinance will not support an action for damages, even though it may be evidence of negligence, unless there is legally sufficient evidence to show that the violation was the proximate cause of the injury. See Gosnell v. B. & O. R. R. Co., 189 Md. 677 , 57 A. 2d 322 ; Maggitti v. Cloverland Farms Dairy, Inc., 201 Md. 528 , 95 A. 2d 81 ; State, Use of Parr v. Board of County Com’rs of Prince George’s County, 207 Md. 91 , 113 A. 2d 397 , and cases therein cited. Even if there had been no Building Code provision in this case, we think that the evidence was sufficient for a jury to find that there was negligence in having a flight of steps leading downward from inside a door opening onto a public highway. A person coming from the sunlight of outdoors, as the appellant did, into an inadequately lighted interior, without warning that immediately inside the door there were steps going down to the basement, would be very likely to fall.

There was testimony of the architect as to the inadequacy of the lighting, and there was a conflict between the testimony of the plaintiff and that of the defendants with regard to ⁷¹ whether or not there were warning signs. The plaintiff testified that he saw none; two of the defendants testified that there were signs reading “Step Down”. Even if the signs were there, there is a serious doubt as to whether they gave an adequate warning of the danger ahead. “Step Down” would seem more likely to suggest that there was one step down to a somewhat lower level of the floor inside than the level of the pavement outside, rather than immediate entry upon a stairway leading to a lower floor. In Skidd v. Quattrochi, 304 Mass. 438 , 23 N. E. 2d 1009 , the plaintiff went to the defendant’s premises to examine an automobile which had been demonstrated to him.

After looking at the car, he went into the defendant’s building to go into the office. He opened a door, stepped inside and fell down a flight of steps just inside. To get in he had to step up on a sill about six inches high and six or seven inches in width. There was no landing on the inside.

A judgment for the plaintiff was affirmed. The Supreme Judicial Court of Massachusetts said: “The plaintiff was entitled to rely to a reasonable extent upon appearances, even though he misjudged the actual situation. * * * There was sufficient evidence to warrant the finding of the judge that the defendant’s negligence was the cause of the plaintiff’s injuries * * *. The stairway was steep and made dangerous by the absence of any landing at its top.” The presence of steep steps and the absence of a landing at the top were the two facts which the Massachusetts Court pointed out as evidence of negligence. These same facts are present in the instant case, and both the steepness of the stairs and the absence of the landing were in contravention of the Building Code.

We think it plain that these facts would be sufficient in and of themselves to support a finding of negligence. The fact that they also constituted violations of an applicable ordinance does not deprive them of probative value in establishing negligence. See State, Use of Parr v. Board of County Com’rs of Prince George’s County, supra, in which the breach of a statutory duty to protect the latch of an emergency door in a school bus against accidental or unwarranted release was held a sufficient basis for imposing liability upon ⁷² the Board of Education, where the bus struck a hole in the road and the door flew open and a child was thrown out. In Burkert v. Smith, above referred to, which arose in these same premises, the danger inherent in the steps there involved was much less than the danger inherent in the steps involved in the present case.

In that case, a woman waiting for her husband to finish drinking a beer on the premises stood just inside the door, with her back to the steps which then led to-the basement. As someone else was about to enter the premises and opened the door, she stepped backwards to get out of the way and fell down the steps. A judgment for the defendant entered on a directed verdict was reversed, and both the negligence of the defendants (two of whom were the Buettners) and the contributory negligence of the plaintiff were held to be questions for the jury. The basis for a possible jury finding of negligence in that case consisted of having an unguarded stairway so close to the entrance.

Judge Henderson dissented on both primary and contributory negligence. His views on the question of primary negligence point up several factors not present in that case which are present in this. He said ( 201 Md. 461 -2, 94 A. 2d 464 ) : “There are few buildings anywhere that do not contain stairways, and it is not suggested that the existence of a stairway is negligence per se. But it is now held that the mere location of a stairway adjacent to a door is sufficient to charge a landlord with negligence.

There must be thousands of buildings, erected in full compliance with the building codes, where such a condition exists. Apartments with doors opening on stair landings are a familiar example. There is no evidence that the stairway in question was improperly constructed, defective or badly lighted. To correct the defect found it will apparently be necessary to remodel the whole structure and move the staircase to an undetermined distance from any door,” Here we have a stairway immediately adjacent to a door, with no landing at all, constructed in contravention of the Building Code and said to be badly lighted.

The problem of moving “the staircase to an undetermined distance from any door” was solved by bringing it right up to a doorsill, which hardly seems likely to reduce the risk of injury. ⁷³ In Recreation Centre Corporation v. Zimmerman, 172 Md. 309 , 191 A. 233 , the proprietor of a bowling alley was held liable to a non-paying spectator, who was considered as only a gratuitous licensee, for injuries sustained by falling down steps leading from seats for spectators. The fall was due to one step being twice as deep as the others. The decision of this Court was not unanimous, but a majority concluded that a visitor, though exercising care, could have been misled by the condition and that the proprietor might be found lacking in ordinary care in not foreseeing the danger and acting accordingly. Chief Judge Bond, in writing the opinion, pointed out that “The tendency to assume that a stairway descends regularly from the top to the bottom is a natural one, of which any occupier of premises might be required to take notice.” The tendency not to expect stairs to plunge down from immediately inside a public door also seems a natural one, which could also have been foreseen by the defendants.

We have not, up to this point, made any differentiation in responsibility as between the lessee, Vance’s, and the owners of the building, the Buettners. Vance’s was in possession, and we think that even though the lessee may not be chargeable with violation of the Building Code, yet there was sufficient evidence of negligence on its part towards Austin, a business visitor, to warrant the submission of the case to the jury, and that it makes no difference so far as the possible liability of Vance’s is concerned whether Austin is regarded as a “patron” under the Restatement’s definition (Torts, § 332, Comment a) or as some other kind of business visitor. Restatement, Torts, § 343. Insofar as possible liability on the part of the Buettners on grounds of unsafe construction of the stairway and violation of the Building Code is concerned, we think that the evidence was sufficient to warrant the submission of these questions to the jury.

There remain for consideration other defenses based upon rules of the law of landlord and tenant relating to a lessor’s liability or non-liability for the defective condition of leased premises. Specifically, questions are presented with regard to public use of the premises and the extent thereof, and with regard to whether the appellant was within the class ⁷⁴ of visitors to whom the lessors might be liable for the alleged unsafe construction of the stairway and violation of the ordinance. The exact status of the visitor who was injured was not discussed in Burkert