Slovin v. Gauger

Four causes of actions are asserted in the complaint. The first is grounded on negligence that Goudy, as an agent of defendants, supplied alleged faulty wooden steps which were unsafe and led to plaintiff receiving his- injuries; the second on res ipso loquitur; the third on negligence in that defendants were obligated to provide a safe place and failed to do so; and the fourth recites elements of both res ipso loquitur and negligence.

Defendants filed an answer denying negligence and setting up certain affirmative defenses. The affirmative defenses with which we are concerned are:

“FIRST AFFIRMATIVE DEFENSE

“The Complaint fails to state a claim upon which relief can be granted.”

“FOURTH AFFIRMATIVE DEFENSE

“All or part of the claim is barred under the doctrine of sovereign immunity.”

“FIFTH AFFIRMATIVE DEFENSE

“The relationship between the plaintiff, Abraham M. Slovin, and defendants was that of landlord and tenant and the plaintiff took the premises as he found them.”

After defendants had asserted the Fourth Affirmative Defense, the Attorney General entered the case on behalf of the members of the Special School District and moved to dismiss the complaint, basing his. motion on the doctrine of sovereign immunity, which was the basis of defendant School Board members in asserting their Fourth Affirmative Defense.

I must and do regard this as a motion for judgment on the pleadings or a motion to dismiss. Since some discovery has been taken and an affidavit filed “Matters outside the pleadings were thereby injected into the case”. Under the provisions of Rule 12(b), Rules of the Superior Court, Del. C., plaintiff’s motion can and must now be “treated as one for summary judgment” and disposed of as provided in Rule 56, Rules of the Superior Court, rather than as a motion to dismiss, or as a motion for judgment on the pleadings, which seemed to be its original purpose. See Vol. 6, Moore’s Federal Practice, 2d Ed., ¶ 56.11(1) at page 2058. In passing, I observe it was for plaintiff to disclose all evidence which would have disclosed the existence of a genuine issue of fact, Sparks Co. v. Huber Baking Co., 9 Terry 9 , 96 A.2d 456 (Super.Ct.1953), and I assume this has been done.

The defendants have moved for summary judgment. The Court proposes now to dispose of all pending motions.

It appears that by their First and Fifth Affirmative Defenses defendants sought to establish that plaintiff Abraham Slovin on the night he alleges he received his injuries occupied a position of lessee, licensee or even trespasser while using the particular facilities of the Ogle-town Junior High School and that since he was injured while occupying one or perhaps another of such status the Board could not be held responsible. The defendants aslo challenge the applicability of the doctrine of res ipsa loquitur.

It seems desirable to first determine plaintiff’s status with respect to the Ogletown Junior High School and the other defendants before proceeding to consider if plaintiff has shown sufficient facts on which he can premise the res ipso loquitur doctrine, or if the doctrine of sovereign immunity is applicable.

The important facts are that some time prior to October 24, 1960, an unincorporated group, known as the “Brookside Players”, arranged to rent or lease the auditorium and adjacent dressing rooms at the Ogletown Junior High School in Newark, Delaware, so they could present a play. These arrangements were made with the representatives of the Board of Education of the Newark Special School District. No written lease or rental agreement has been shown, so that it is assumed the lease was oral. The arrangement was made subject to and in conformity with the Rules and Regulations of the Board, established long prior to the rental date.

The General Assembly has provided by statute, 14 Del. C. § 714, that school facilities, such as auditoriums and the like, are to be made available for certain purposes and under certain conditions. The statute is cited in its entirety so that all can understand the several questions presented by and in the pending motions.

Ҥ 714. Use of schools for meetings of certain organizations

“(a) The Board shall allow, on written request, the free use of the school house or school houses under its jurisdiction for farmers’ meetings, Grange meetings, public

“(b) The person making application for the use of a school house for a public meeting shall be responsible for all damage to the property occurring at such meeting, ordinary wear and tear excluded, and upon f allure of the person to respond in damages for any such injury to- the property, the Board in charge of the school house may refuse all future applications until such injury is repaired without expense to the Board in charge of the property.”

Pursuant to this statute the Board promulgated certain Rules and Regulations. These were made part of the record when plaintiffs took the deposition of Mr. Shue, one of the defendants. The pertinent provisions of these Rules and Regulations are set forth — again in order that the several questions presented by and in the pending motions may be better understood:

“RULES AND REGULATIONS APPLYING TO THE USE OF SCHOOL FACILITIES BY COMMUNITY ORGANIZATIONS

“The use of school facilities shall be limited to community organizations which have as their chief aim the instruction of children or the well being of the community. Such organizations shall be essentially civic in nature and shall be required to pay the minimum charges as approved by the Board of Education. Such charges shall defray the caste to the school district for light, heat, and custodial services.

“The following rules and regulations shall generally apply to all use of school facilities by community organizations :

“2. Organizations requesting the use of school facilities shall, through the use of the school facility, be in some way contributing to the general well being of the community or the instructional program of the public schools. Sectarian religious services are not permitted on public school property. Permissive use of school facilities shall be limited to non-exclusive group meetings.

“3. * * *.

“4 * * *

“5 * * *

“6. It shall be the responsibility of the officers of the organization requesting the use of the school facility to enforce all rules and regulations.

“7. The use of school facilities shall be limited to specific areas for Which permissive use has been granted.

"8 * * *

"9 * * *

“10. A regular employee of the school district shall be in attendance in the building at all times when such building is being used by community organizations.

“11. The community organization using a school facility shall be completely responsible for any damage caused through use by the organization, any of its members, or guests.

“Rules and Regulations Applying to Certain Areas

“The investment of public funds in highly mechanized equipment requires the adherence to certain policies by

“GYMNASIUMS — * * *.

“AUDITORIUMS — Senior High School, Ogletown and Central Junior High Schools

“1. The operation of projection equipment, public address equipment, and specialized stage lighting equipment shall be carried on by trained school personnel under the direction of a faculty member.

“2. Stage sets shall be erected only after prior approval of, and under the supervision of, a faculty member designated as ‘Stage Manager’ for the particular school.

“3. The operation of ventilating and heating equipment shall be limited to the custodian or other school employees on duty.

“4. All rules and regulations shall apply to practice sessions.

“5. Permission to use auditorium facilities shall limit such use to the auditorium, to dressing rooms, or two rooms for dressing room use, and to public lavatories.”

It is clear from the Shue deposition that the Brook-side Players paid the requisite fees for “Use of Auditorium and Dressing Rooms” on certain nights, including three rehearsal nights; we must assume, from what is before the Court that the lease was in accordance with the statute and the Regulations of the School District; to

Defendant Goudy was examined on deposition and consideration must be given to what he deposed in the Court’s consideration of plaintiff’s status at the time he alleges he was injured.

Coming to the particular act which plaintiff says caused his injuries. He makes it clear he was aware that there was a four foot drop from the so called “sliding doors” to the floor of the hallway, immediately outside of such “sliding doors”. Plaintiff points to the fact that the School District did not “rope off” this entrance way as it had other portions of the school facilities. On the either hand, I find nothing in the record which would have required such roping off. I consider it was the obligation, under the lease agreement, for the lessees to have respected the lease restrictions and to have acted in this respect. Supra, p. 456.

Plaintiff points to Mr. Goudy’s testimony (Pl.B. p. 9) as tending to show a basis for liability on the part of the School District.

I quote from Mr. Evans’ brief the particular portion stressed by plaintiff:

“As to defendants’ position that plaintiff might perhaps have been a trespasser * * *, it is probably unnecessary to go beyond the testimony of Mr. Go-udy. He testified that the door at the rear of the stage was intended to be used to bring scenery from the shop onto

If there is the slightest doubt as to the landlord-tenant relationship, as found and determined above, it is eminently clear that plaintiff was no more than a licensee.

I could find no reported Delaware cases and none were cited in which our Courts have undertaken to define and note the distinction between invitees and licensees.

Resorting to the Restatement of Torts — Negligence— Chapter 13, § 332, we find an invitee defined there as—

“* * * 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.”

In contrast, the Restatement of Torts — Negligence—Chapter 13, § 330, defines a licensee to be—

“* * * a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.”

If Mr. Slovin is a licensee the School Board’s only duty is not to trap him or wilfully injure him, 32 Am. Jur. — Landlord and Tenant, § 691, p. 570.

Plaintiff has wholly failed to show he was on the School District’s premises “for a purpose directly or indirectly connected with business dealings between” him and the School; hence, he was not an “invitee” at the time he claims to have been injured.

What benefit flowed to the School District from the use of the school auditorium by the “Brookside Play

This leaves for consideration what, if any, claim Mr. Slovin can make against Mr. Goudy, and on what basis?

There is an obvious factual dispute as to who supplied the steps. Mr. Slovin has filed an affidavit made by a Mrs. Bart in which she says Mr. Goudy supplied the steps, which plaintiff says was the cause of his being injured.

Mrs. Bart’s affidavit, made August 14, 1962, was in this language:

“That she is Elizabeth Ann Marie Bart, usually referred to as ‘Betty’; that prior to and during October 1960 she was a member of the Brookside Players; that she was the director of the production ‘Good News’ which the Brookside Players were producing during October 1960; that Abraham M. Slovin was a member of the cast; that on Monday, October 24, 1960, Charles R. Goudy brought out from the men’s dressing room a set of wooden steps to be used by the cast and production staff in entering and leaving the stage at stage left; that the said Charles R. Goudy placed the steps in the hallway beneath the sliding door at stage left and explained that the boys

The affidavit can mean only that the steps were made available to the “Brookside Players”, the tenant of the school facilities, and no more. Mr. Slovin, supra, p. 456, concedes this. In making the steps available as claimed, Mr. Goudy was not acting for or in behalf of the School Board. Mrs. Bart was aware the steps were not made secure; she was in charge for the tenant; she identifies herself as “the director” of the play. It was for the tenant to have acted to protect its guests, by securing the steps. I find it difficult to understand why Mrs. Bart was not intelligent enough to see to it that the steps were made secure; had she done so no accident would have resulted and Mr. Slovin would not have been injured.

Mr. Goudy, in his deposition, denies all this. His des-position, given two months before the Bart affidavit was executed, was as follows:

“Q Mr. Goudy, you are familiar with the steps which Mr. Slovin was descending when he was injured, are you not?

“A Yes, sir.

“Q Who built those steps? i “A I did.

“Q When did you build them?

“A Approximately a year before the accident occurred.

‘“Q Had those steps been used in other productions in the school?

‘“A Yes, on numerous occasions.

“Q By the students?

“A Yes, sir.

“Q And by community organizations as well?

“A No, sir.

“Q Had these steps been used in the preceding year by the Brookside Players in some other production?

“Q Who supplied those steps to the Brookside Players in October, 1960?

“A I don’t know who supplied them. I did not.

“Q You say you did not?

“A I did not supply them.

“Q I was just about to suggest to you that you had brought the steps out and handed them to one of the members of the Brookside Players, suggesting that they could use them.

“ No sir, I did not.

“Q You did not?

“Q Where were the steps stored?

“A They were stored in the boys’ dressing room, under the counter, the make-up counter that they have in the room.

“Q Were you aware that the steps were being used by the Brookside Players that night?

“A Yes, I was.

“Q Were you there both nights ?

“A Yes, sir.

“Q Were they in fact being used the preceding night?

“A. I couldn’t tell you.”

Assuming Mr. Goudy supplied the steps, does, this dispute create a material issue of fact? It is not shown the steps were defective in any sense; nothing more was shown than that they were not somehow secured to' the floor so that they would not move “out from under” Mr. Slovin.

What duty was. there on Mr. Goudy to have secured the steps? Mr. Goudy — in the position he occupied under the School Board — had no authority to permit the Brook-side Players to change the physical characteristics of the auditorium-hallway, thereby enabling the Players to utilize a door — WHICH WAS NOT designed to be used as. Mrs. Bart would have liked and did “direct” its use. Mr. Goudy deposed that he was present at the school on the1 night Mr. Slovin was injured “to render technical assistance on the stage”; he was there as the “faculty member” (see p. 456, supra, regarding paragraph 10 of the Regulations) “designated as the stage manager of the school”— “operating stage lighting equipment”. Assuming he did supply the steps, I fail to see that he created or was under a duty to secure them to the hallway floor; they could have been made secure by “Brookside Players”. The tenant had no right — without approval of the School Board— to use premises and facilities in a manner not included in the lease arrangement and without Board approval, so Mr. Goudy’s relationship to Mr. Slovin, such as it might be,.

Mr. Goudy’s act must have had some casual relationship to Mr. Slovin’s fall, see Wilms v. Klein, 49 N.E.2d 76 , 82 (Ohio Ct. of App., 1942). It has not been shown it did.

In the absence of more than appears in the record, including the Bart affidavit, I hold that the dispute as to who furnished the “steps” creates no material issue of fact such as will not preclude the Court from ordering judgment on defendants’ motion for summary judgment as to Mr. Goudy, if I determine it otherwise should be granted.

Plaintiff has pleaded and argued in his brief the doctrine of res ipso loquitur is applicable and that this precludes any judgment being ordered in favor of defendants.

Generally speaking the doctrine is applicable in any negligence case; but whether it is to be applied can only be determined by a consideration of and in light of all of the facts of the case. In McGuire v. McCollum, 10 Terry 359 , 116 A.2d 897 (Super.Ct.1955) now Mr. Justice Carey of our Supreme Court indicated when the doctrine is or is not applicable, 10 Terry 366 , 116 A.2d 901 , in any case.

So far as the doctrine may be applicable in- actions of negligence by a tenant or a guest of a tenant as against a landlord' necessitates careful consideration of many factors — particularly the “control” element that may be reserved by or to a landlord of the area and/or instrumentality or appliance that has a relationship to the accident exercisable by the landlord, both as to the premises land the offending instrumentalities. This is so because of the

A study of the principles stated in the text of and many of the cases cited in Vol. 2, Harper and James, The Law of Torts, Chap. XIX, §§ 19.5-19.12 and of § 56, Vol. 1, Shearman and Redfield on Negligence (Rev. Ed.) threw very little light on the particular issue as it is presented here. Reading these cited treatises revealed very little aid, particularly in light of the Board’s statutory obligation to rent its facilities in the instances stated and the use by the Brookside Players pursuant to a lease arrangement, which did not include the area in which the accident happened, and in light of the Board’s Regulartions; the lease arrangement was clear — particularly of what areas had been included in the lease arrangement and the extent, if any, of the right reserved in the Board to have supervised tenant’s use of all other areas relating to the auditorium.

For what it may be worth, I point out that an examination of the Chapter Arrangement, the Indices and the subject matter of and in Powell on Real Estate (6 Volumes and Index Volume) and Thompson on Real Property (10 Volumes and Index Volume), each of which consider a landlord’s responsibility to tenants and their guests, does not reveal any reference to or any clue to the application of the doctrine of res ipso loquitur in any case generally pertaining to a liability of landlord to tenants for personal injuries of any kind sustained on the landlord’s premises by tenants, customers or guests and particularly of the nature here under consideration. The same may be said of Tiffany, Landlord and Tenant and Volume 32 of American Jurisprudence, in which the subject of landlord and tenant, including personal injury suits, appears.

However in 52 C.J.S. Landlord and Tenant § 443, at pages 130-131, reference is made to the doctrine, when it has been applied and when it is not.

I have examined the greater number of cases cited in the footnotes, both in the Volume itself and the pocket supplement, 11 to 18, on pages 130-131 of 52 C-J-S. Landlord and Tenant and could find no instance where, as here, someone having a relationship to a landlord gra

Wright & Taylor, Inc. v. Smith, 315 S.W.2d 624 , 627-628 (Ky.Ct. of App.1958) is distinguishable, since the landlord there had reserved to himself the use of the basement where the plaintiff, an employee of a tenant, was injured by catching her foot in a grease trap located in part of the. floor of the basement.

Plaintiff cites Freund v. Oakland Board of Education, 28 Cal.App.2d 246 , 82 P.2d 197 (Calif.Dist.Ct. of App., 1938), where a California Court upheld the lower Court’s application of the doctrine of res ipso loquitur in sustaining an award where a 15 year old school child had been injured when a locker in a room in a public school building fell on the child while she was in school.

The Court said (82 P.2d at page 199) :

"* * * she was not a tenant. She was a child fifteen years of age. Under the law of this state she was compelled to go to school. Under the law of this state she was compelled to go to the identical school she was attending. Under the law of this state she was compelled to go into the particular room where the accident occurred. She went in there and was seated on a bench. White so seated á part of the fixtures of the building tumbled onto' her causing the injury for which she asks damages.

Contrast such holding with Wilson v. Ray, 100 Cal. App.2d 299 , 223 P.2d 313 , 316 (California Dist.Gt. of App., 1950), cited supra at p. 463 where a California District Court of Appeals refused to apply the doctrine in a suit by guests of a tenant against a landlord for injuries resulting from an explosion of a gas stove furnished the tenant by the landlord.

I conclude that the doctrine of res ipsa loquitur is not to be applied here in view of the lease agreement and other factual matters heretofore discussed. See Miller v. Weinberg, Del.Super., 190 A.2d 27 , 31 (Super.Ct.1962). “Control”, and the extent thereof, of the offending area or instrumentality is an important factor in considering if and when res ipso loquitur applies. I, therefore, conclude to grant the motion for summary judgment, filed by all defendants on the ground plaintiff has shown no facts that relate to the accident that show any liability on the part of the defendants. An order to this effect may be presented.

I entertain much doubt if it is desirable or necessary I consider the question of the right of “Sovereignty” as raised by defendants’ Fifth Defense and the motion to dismiss filed by the Attorney General — especially since the plaintiff has not shown a case which entitles him to recover.

In 21 C.J.S. Courts § 182, page 292, the statement is made that a Court will decide only the questions necessary

“While courts should not decide more than is necessary to the case in litigation, once they acquire jurisdiction, all material questions are open for their decision. They may properly decide all questions which are so involved, even though it is not absolutely essential to the result that all should be decided. Thus, a court may determine the question of the constitutionality of a statute, although it is not absolutely necessary to the disposition of the cause, if it is involved in the suit and the settlement of the question is one of public importance.”

I consider then it is appropriate for me to express my views' on this factor of Sovereignty, but since plaintiff has not shown a case where I must decide the question I will refrain from deciding the questions raised.

The right to sue the state — and I assume-this includes all state agencies — was recently considered by our "Supreme Court in Shellhorn & Hill, Inc. v. State, 5 Storey 298 , 187 A.2d 71 (1952). It was there held that the “doctrine of sovereign immunity” is a part of the -basic law of this- state which may be waived solely by law enacted by the General' Assembly, 187 A.2d at 74 . The Court noted, 187 A.2d 73 , the doctrine had been applied to certain sub-divisions of the state; see also Flait v. Mayor & Council of Wilmington, 9 Terry 89 , 97 A.2d 545 , (1953) referred to at 187. A.2d 72, where it was stated that the doctrine is applicable to. municipalities “on the theory that they were creatures of the State”. No cases involving “school districts” seemingly have been decided in this state, — at least none reported —but it must be recognized that they too “are creatures

Since there is no particular reason now to examine and determine if the doctrine is applicable to school districts, I have given only passing thought to the problem raised by defendants’ Fifth Affirmative Defense and the Attorney General’s motion to dismiss.

Plaintiff places reliance on 18 Del. C. § 516, enacted as Vol. 50 Del.Laws, Ch. 481, and argues this as a waiver of the defense of sovereign immunity. He cites Dorsey v. Coastal Tank Lines, Inc., et al., 11 Terry 437 , 442, 133 A.2d 914 , 917. I call attention to Judge Christie’s ruling, made February 16, 1959, an unreported decision, in the case of Jamison v. Blagg, Civil Action No. 743, 1958, in which this Court ruled:

“I conclude that the plain purpose of 50 Delaware Laws, Ch. 481 [now 18 Del. C., § 516] was to make the defense of sovereign immunity unavailable where liability insurance exists. Although the intent of the statute' is not as clearly expressed therein as it might be, there .is no doubt in my mind that it must be interpreted so as to-deny the motion of the School Board.

“I am further of the opinion that the State’s point as to the limit on such liability is well taken. Since the waiver of the defense of sovereign immunity depends on the existence of liability insurance, such defense is waived only to the extent that the insurer may be called upon to make payments under the policy. On the other hand, the insurer may not benefit from the failure of the policy to contain a provision as required by 50 Delaware Laws, Ch. 481.”

At first blush Judge Christie’s ruling seems most sound.

Order on notice.