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FELIX v. O'BRIEN (03/17/64)

March 17, 1964

FELIX
v.
O'BRIEN, APPELLANT.



Appeal, No. 5, Jan. T., 1964, from judgment of Court of Common Pleas of Schuylkill County, Nov. T., 1961, No. 127, in case of Sylvia A. Felix and Robert G. Felix, her husband, v. Ellen Nark O'Brien. Judgment reversed; reargument refused April 17, 1964.

COUNSEL

E. Mac Troutman, with him Robert M. Zimmerman, for appellant.

Joseph A. Zane, for appellees.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 413 Pa. Page 614]

OPINION BY MR. JUSTICE ROBERTS

This appeal arises from a trespass action in the Court of Common Pleas of Schuylkill County which resulted in a jury verdict of $16,500 for Sylvia A. Felix, the injured plaintiff, and her husband. The court below denied defendant-appellant's motions for

[ 413 Pa. Page 615]

    compulsory non-suit during trial and for judgment n.o.v. and a new trial.

On May 29, 1961, plaintiff dined with her family at a local country club. After dinner, they visited the defendant who had previously invited them to her home. They arrived at the O'Brien home at approximately 8:00 p.m. It was the first time plaintiff had ever been there. While the group was in the kitchen, Mrs. Felix asked for the location of the powder room. Mrs. O'Brien replied, "Right around the corner." Mrs. Felix then proceeded through a door into a hall and opened an unmarked door to the immediate right of the kitchen door. This door in fact led to a cellar stairway, but Mrs. Felix had no knowledge of this.

When Mrs. Felix opened the door, she proceeded as though she were walking into a room. The area beyond the door was dark, but she did not reach for the light switch. Immediately inside the doorway was a step down to a landing approximately two feet by three feet and a flight of stairs down from the landing. Plaintiff fell down the steps and was injured.

We have reviewed the evidence, as we must, in the light most favorable to the plaintiff. In doing so, we conclude that the court below erred in refusing defendant's motion for a compulsory non-suit. In passing upon defendant's negligence, the court below failed to apply the prevailing law on the duty of an owner of land to a gratuitous licensee, the status occupied by Mrs. Felix. Under the applicable law, we are satisfied that plaintiff failed to prove negligence.

This Court has adopted the view of the Restatement in determining the duty owned by an owner or possessor of land to a gratuitous licensee. See Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923 (1960). Restatement, ...


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