DOWD v. PORTSMOUTH HOSPITAL

1. In an action against a charitable hospital to recover for injuries sustained in a fall upon a stairway while entering to attend a Well Baby Clinic sponsored by the District Nursing Association, evidence that the stairway had been used for this purpose for a quarter of a century with the knowledge and approval of the hospital and that such use by the plaintiffs was in accordance with what they were led to believe was the intention and design of the hospital warranted submission to the jury of the question whether the plaintiffs were invitees or licensees under the "invitation test."

2. The fact that the hospital derived no economic benefit from the transaction did not relieve it from a duty to discover and remedy any unreasonable risks of injury arising out of the invited use.

3. In such case, the jury was warranted in finding that the stairs were unsafe, due to faulty construction and maintenance, for the use to which the hospital knew they were subjected.

4. Hospitals and other charitable institutions are not immune from liability for negligence.

BLANDIN, J.

The defendant claims that the Court erred in failing to instruct the jury as a matter of law that the plaintiffs, Helen M. and Oliver Dowd, Jr., were licensees and also in denying motions for nonsuits and directed verdicts.

The defendant is a charitable institution, the hospital building having been constructed in 1930, for the purpose of caring for the ill and injured and generally to promote the health and welfare of citizens in the community area. It makes no profit and is supported by income from patient services and by gifts. Since about 1933 the hospital has permitted the District Nursing Association to use certain facilities free of charge for a "Well Baby Clinic" wherein babies are brought to a room in the hospital for checkups and examinations by staff physicians of the hospital who are paid by the District Nursing Association. The time of the clinics is advertised in the newspaper by the association.

On the day in question Helen, a resident of Portsmouth who had visited the clinic several times before for the same purpose of having her child examined, appeared with Oliver, Jr. and entered the hospital. As she was descending a flight of stairs carrying the child over her left shoulder, on her way to the clinic facilities, she slipped and fell, injuring both herself and Oliver, Jr. She claims that the cause of her fall was that the stairs were slippery and that they were improperly maintained and constructed.

The crux of the issue of whether the Court erred in permitting the jury to decide whether the plaintiffs were invitees or licensees depends on what we hold to be the proper test for a determination of the plaintiffs' status. Presently there are two tests to determine what is an invitee. One is the so-called "economic benefit" test and the other the "invitation" test. 2 Harper James, The Law of Torts, s. 27.12, pp. 1478-1479. The former is that there must be an economic advantage — actual or potential — to the occupier of the premises, in the plaintiffs' visit, before the latter may become invitees. In the present case, the Court submitted to the jury only the invitation test, so that it is unnecessary to consider whether it could be found that there was any economic benefit, actual or potential, to the defendant from the plaintiffs' visit.

The invitation test does not deny that there may be an economic benefit to the defendant in the plaintiffs' visit or that such benefit alone is sufficient to permit the plaintiff to become an invitee. 2 Harper James, The Law of Torts, supra. However, it would go further and hold that a visitor may become an invitee if the occupier, "by his arrangement of the premises or other conduct has led the entrant to believe [they] `were intended to be used by visitors' for the purpose which this entrant was pursuing, `and that such use was not only acquiesced in by the owner or possessor but that it was in accordance with the intention and design with which the way or place was adapted and prepared . . . .'" 2 Harper James, The Law of Torts, s. 27.12, p. 1479. This authority goes on to point out that the present trend is toward the more inclusive invitation test. Id., 1479, 1480.

In the situation before us, we believe that long established and easily understood — though not always easily applied — principles of fundamental justice and reasonableness in our law, which are in accord with the invitation test, furnish a sound guide. In the case of Hobbs v. Company, 75 N.H. 73, the court held that "if there be evidence tending to show inducement or invitation [to enter the premises] it becomes a question of fact for the jury" to determine whether the plaintiff is an invitee. P. 81. "The gist of the liability consists in the fact that the person injured . . . entered the premises because he was led to believe that . . . such use was . . . in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used . . . ." Menard v. Cashman, 94 N.H. 428, 431.

Applying these principles to the facts here, the jury could find that the stairs had been used for some twenty-five years prior to the accident by members of the community visiting the Well Baby Clinic for the same purpose as by the plaintiffs — to maintain the health and welfare of their children — and that this had been done with the knowledge and approval of the defendant. They could also find that this use was in accordance with what the plaintiffs had been led to believe was the intention and design of the defendant. Also, they could conclude that the hospital, as a place open to the public for the general purpose of promoting the health and welfare of the community, as well as treating the sick and injured, could not ignore the customary actions of the public with reference to the use of its stairs generally, and in particular to its use of them for the purpose of visiting the Well Baby Clinic. Pickford v. Abramson, 84 N.H. 446, 450.

In all the circumstances, the question of whether the plaintiffs were invitees or licensees was properly submitted to the jury, and the defendant's exceptions thereto are overruled. Insofar as Sandwell v. Hospital, 92 N.H. 41, might be thought to express a different view it is not to be followed. In this state, the law is that hospitals and other charitable institutions enjoy no immunity from liability for negligence. Wheeler v. Monadnock Hospital, 103 N.H. 306, 307.

The remaining issue is whether we should sustain the finding of the jury, which took a view, that the hospital failed in its duty to the plaintiffs to construct and maintain reasonably safe stairs. The transcript discloses that a qualified expert testified unequivocally that the stairs were unsafe due to faulty construction and maintenance, that certain treads were too narrow and that the substance covering them was "too slippery" when installed and had become even more so with "use." The defendant argues that ordinarily a flight of stairs is not unreasonably dangerous when traversed in daylight. 2 Harper James, The Law of Torts, s. 27.13, pp. 1489, 1490. However, considering the nature of the use to which the defendant knew these stairs were subjected, we believe it could be found that it failed to exercise reasonable care for the plaintiffs' safety in accordance with its duty. Jacobson v. Yoken's, Inc., 104 N.H. 331.

The motions for nonsuits and directed verdicts were properly denied, and the defendant's exception to the Court's ruling is overruled. A further examination of the record discloses no error in the trial, and the order is

Judgment on the verdicts.

All concurred.

ON REHEARING. After the foregoing opinion was filed, the defendant's motion for rehearing was granted.