Adams v. R. S. Bacon Veneer Co.

• Decision Date: 12 November 1968
• Docket Number: No. 53050,53050
• Citation: 162 N.W.2d 470
• Parties: Jimmie Dale ADAMS and Tonna G. Adams, Appellants, v. R. S. BACON VENEER COMPANY, a corporation, and Hubbard Walnut Company, a corporation, Appellees.
• Court: Iowa Supreme Court

Page 470

162 N.W.2d 470

Jimmie Dale ADAMS and Tonna G. Adams, Appellants, v. R. S. BACON VENEER COMPANY, a corporation, and Hubbard Walnut Company, a corporation, Appellees.

No. 53050.

Supreme Court of Iowa.

Nov. 12, 1968.

Rehearing Denied Jan. 13, 1969.

William T. Connery, Dubuque, for appellants.

Kenline, Reynolds, Roedell & Breitbach, Dubuque, for appellees.

MOORE, Justice.

Plaintiffs, husband and wife, seek damages resulting from a fall by Jimmie Dale Adams on defendants' premises alleged to have been in a dangerous and hazardous condition. The trial court held plaintiffs failed to prove actionable negligence and directed a verdict for defendants. Plaintiffs have appealed. We reverse.

The wife's claim is derivative and therefore we will refer to Jimmie Dale Adams as plaintiff. At all times material, defendant companies jointly owned and operated the log and lumber yard where plaintiff was injured. We will hereafter refer to them as defendant.

The question presented is whether plaintiff's evidence was sufficient to generate a jury question on plaintiff's contention defendant failed to exercise reasonable care to make its log unloading lot reasonably safe within the scope of plaintiff's invitation.

I. In considering the propriety of a motion for directed verdict the court views the evidence in the light most favorable to the party against whom the motion is made. Citation of authorities for this is unnecessary. Rule 344(f) 2, Rules of Civil Procedure. With this rule in mind we summarize plaintiff's evidence. The court directed the verdict at the close of plaintiff's case in chief.

On December 29, 1963 John Adams, plaintiff's father, and Willard Whitsel near Freeport, Illinois, loaded 18 or 19 walnut logs, owned by them, on Whitsel's 1959 G.M.C. truck for transportation to Dubuque, Iowa, for eventual sale. They intended to sell them to defendant or some other buyer dependent upon the best available price.

Whitsel's truck was equipped with a flat bed 13 feet long, 7 1/2 feet wide and had four support trip stakes. These trip stakes operated by bolt on the bottom of the stake supported by a short chain fastened to the bed of the truck. When released a stake swings down so the logs can be unloaded.

About 8:30 a.m. December 30, Whitsel accompanied by plaintiff as a helper drove to defendant's business premises in Dubuque for the purpose of having the logs scaled and getting defendant's bid for them. Scaling means measuring and grading the walnut logs. This was the customary method followed by sellers and buyers of walnut logs. The logs were to be unloaded by the owner on defendant's lot and if not purchased after scaling defendant reloaded them.

Whitsel was aware of this practice and after stopping his truck near defendant's office was directed by Mr. Huff, defendant's agent, to unload in defendant's log yard, about 150 feet from the office. Whitsel, accompanied by plaintiff, then drove into the log yard and unloading was started at the place pointed out by Huff.

As plaintiff alighted from the right side of the truck cab he observed the surface of the lot was slippery and covered with snow and ice. He then walked around the front to the left side of the truck where he, with Whitsel's help loosened and removed a binder chain which was used to help secure the logs. As Whitsel was removing the left front trip stake, plaintiff got a cant-hook from the truck. A cant-hook is a device 3 to 5 feet long equipped with a beveled hoop. It is used to roll or skid logs.

Plaintiff then went to the area of the left rear stake and, after removing a pin, struck it with the cant-hook. This released the stake and some of the logs started to roll down. Plaintiff knew of this method of unloading and that it would be necessary for him to jump to one side to avoid being struck by the falling logs.

As plaintiff attempted to jump back and to one side his left foot slipped forward and was hit and crushed by a falling log. Amputation was required. When plaintiff's left foot slipped forward he went down on his right knee and was in that position when injured.

While on the ground after his injury plaintiff observed the surrounding surface. He testified: 'I don't believe I ever worked in a place where there was ice like that. It was slippery and I knew it was slippery. I don't believe I ever worked in a place where it was that slippery with ice.'

Whitsel's testimony in narrative form in the record includes: 'The area where my truck was parked, (for unloading) we looked at the ground there. There was approximately four inches of packed snow and ice on the ground, and wood chips and bark scattered around there. There were some ruts there where they had been driving lifts around there that was cutting the packed snow, they were uneven. There were places here where it was slick. There were chunks that had been knocked out of the ice from the equipment being used there and logs hitting the ground and ice where they had been unloaded. * * * There was bark and chips in the immediate area where this accident happened. This surface was hard. Regarding bark and chips frozen into the surface there, there was lots of them frozen into the ground.' Plaintiff's father came to the scene soon after the accident. He described the surface substantially the same as Whitsel.

It had not snowed the day of the accident. No sand, salt or chemicals had been used on the log unloading area.

II. In explaining to the jury the reasons for the directed verdict the trial court's remarks include: 'With regard to the claim of negligence arising out of the condition of the surface of the unloading area, you are instructed that, at the time of his injury, Jimmie Dale Adams was an invitee on defendants' property, and that it is only when the slippery or hazardous condition of the surface is known to the owner and not known to the invitee that recovery is permitted. * * * To recover on this theory of negligence plaintiffs must establish that a hidden, obscure or unknown hazard caused the injury to Jimmie Dale Adams.'

Such limited principles of law may find support in Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 55, 86 N.W.2d 252, 254, but as we point out in Knudsen v. Merle Hay Plaza, Inc., Iowa, 160 N.W.2d 279, 281, this is no longer applicable Iowa law in cases such as that now before us.

The business-invitee rule announced in the Atherton case was first modified in Hanson v. Town and Country etc. Center, 259 Iowa 542, 548, 549, 144 N.W.2d 870, 874, 875, where we say: 'An open or obvious defect might be the equivalent of a trap or pitfall simply because the possessor should know that the invitee would have no reason to anticipate it, appreciate the hazard created by the condition or guard against it.

'Section 343 as it now appears in Restatement, Second, Torts, provides:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

"(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

"(c) fails to exercise reasonable care to protect them against the danger.'

'This section should be read together with section 343A relating to known or obvious dangers which has been added in Restatement, Second, Torts, and provides:

"(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. * * *'

'As stated in 343A, there are some situations in which there is the duty to protect the invitee against even known dangers, where the possessor should anticipate harm to the invitee notwithstanding such knowledge. Restatement, Second Torts, § 343, comment (b).

'Comment (b) under section 343A states:

"(b) The word 'known' denotes not only knowledge of the existence of the condition or activity itself, But also appreciation of the danger it involves. Thus the condition or activity must not only be known to exist, but it must also be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment' (emphasis added).

'The changes in section 343, Restatement, Second, Torts, and the definitions in the above comment, were not in the Restatement when Atherton v. Hoenig's Grocery, supra, was decided.

'To resolve the question presented, supra, we must determine whether under all the facts and circumstances there is sufficient evidence defendant, in the exercise of reasonable care to make the premises reasonably safe for plaintiff-invitee, should have expected that despite the obviousness of the condition of the strip involved, plaintiff would not realize the hazard and would fail to protect herself against it.

'While ordinarily a possessor of real estate would not be liable (or would not reasonably anticipate an unreasonable risk of harm to an invitee from an open or obvious defect), negligence may exist even though a defect is, in fact, open and obvious where the circumstances are such that there is reason to believe it would not be discovered or become obvious to the invitee or the risk of harm involved would not be anticipated or appreciated by the invitee. In such circumstances there may be generated a jury question as to whether the premises are reasonably safe.'

The modified rule as announced in Hanson has been approved and applied in Meader v. Paetz Grocery Co., Inc., 259 Iowa 1101, 1106, 1107, 147 N.W.2d 211, 215, 216; Smith v. J. C. Penney Company, Iowa, 149 N.W.2d 794, 801; Knudsen v. Merle Hay Plaza, Inc., Iowa, 160 N.W.2d 279, 281, 282; Bradt v. Grell Construction, Inc., Iowa, 161 N.W.2d 336, filed September...