Agnew v. Dillons, Inc.

• Decision Date: 13 December 1991
• Docket Number: No. 66455,66455
• Parties: Guy AGNEW, Appellant, v. DILLONS, INC., Appellee.
• Court: Kansas Court of Appeals

Page 1049

822 P.2d 1049

16 Kan.App.2d 298

Guy AGNEW, Appellant, v. DILLONS, INC., Appellee.

No. 66455.

Court of Appeals of Kansas.

Dec. 13, 1991.

Syllabus by the Court

1. A business proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by a business invitee in a reasonably safe condition. However, a proprietor is not an absolute insurer of the safety of customers.

2. A business proprietor, absent unusual circumstances, may await the end of a winter storm and a reasonable time thereafter to remove ice and snow from outdoor entrance walks, platforms, or steps because it is impractical to take action earlier.

3. A requirement that a business proprietor continually expend effort, during a winter storm, to remove frozen precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden beyond that of ordinary care.

Bradley A. Pistotnik, of Pistotnik Law Offices, Chartered, Merriam, for appellant.

Leonard R. Frischer and Barry E. Warren, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, for appellee.

Before LEWIS, P.J., and LARSON and RULON, JJ.

RULON, Judge:

Guy Agnew, the plaintiff in a personal injury action, appeals from the district court's grant of a directed verdict in favor of the defendant Dillons, Inc., claiming the court erred in: (1) holding that Dillons did not breach the duty of care owed by a business proprietor to an invitee; and (2) refusing to admit evidence that Dillons failed to provide a handrail. We affirm in part, reverse in part, and remand for further proceedings.

The essential facts are as follows:

On the morning of February 1, 1988, plaintiff stopped at a Dillons grocery store in Olathe around 7:45 a.m., spending approximately 15 minutes inside the store Among other allegations, plaintiff alleged in his petition that Dillons was negligent in not removing ice and snow from the mat and entrance to the store. At trial, Captain Steven Blackwell of the Olathe Fire Department testified he was among the emergency personnel dispatched to Dillons the morning of plaintiff's fall. The team was dispatched at 7:55 a.m., but response time was delayed because of icy streets. Blackwell testified there was an ice storm that morning and the streets were icy, although he did not recall the specific condition of the pavement at Dillons. While Blackwell could not remember at trial whether ice was falling at the time of his arrival at Dillons, he testified in a deposition about six months after the incident that ice was falling when he arrived at the store and continued to fall while he was at that location.

purchasing some items. An ice storm was in progress that morning. The entrance to Dillons was approached by walking up a ramp. On this particular morning, a red carpet mat was placed on the ramp. While leaving the store and walking down this ramp, plaintiff slipped and fell, incurring several injuries.

Robert Maib, manager of the Dillons store, testified that he arrived at the store around 7:30 a.m. on February 1, 1988, and that a sleet-type precipitation was falling and freezing as it accumulated. Maib further testified that when he arrived at the store, someone had already placed a mat on the ramp because of the ice. (A mat is not usually kept on the ramp.) The mat was a thick cloth carpet, about three-fourths of an inch high, and actually intended for indoor use.

Plaintiff testified precipitation was falling as he drove to the Dillons store and as he entered the store, but he had no trouble walking up the entrance ramp. He further testified that probably no precipitation was falling when he left the store. Plaintiff additionally testified that as he left the store, he began sliding on the ramp, reached for a handrail, and fell. After falling, he testified he ran his hand across the mat and felt an accumulation of ice. According to plaintiff, precipitation was falling when he was taken to the hospital by ambulance.

Plaintiff made a proffer, in chambers, that he grabbed for a handrail as he fell and would have perhaps avoided the fall if a handrail had been in place.

After the close of plaintiff's evidence, Dillons moved for a directed verdict, essentially claiming plaintiff failed to meet his burden of proof because a business proprietor has no duty to remove or clean an area of snow while precipitation is falling and for a reasonable time thereafter. The district court granted Dillons' motion.

Additional facts, as needed, will be included in our discussion of the issues.

THE DUTY

Plaintiff's argument that a business proprietor breaches the duty owed to invitees by not removing snow or ice during an ongoing winter storm is contrary not only to Kansas law, but to the law in a majority of jurisdictions.

Clearly, a proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. Knowles v. Klase, 204 Kan. 156, 157, 460 P.2d 444 (1969). However, a proprietor or operator of a trade or business is not an absolute insurer of the safety of customers. Steinmeyer v. McPherson, 171 Kan. 275, 278, 232 P.2d 236 (1951).

When confronted with the precise issue of whether a business proprietor breaches this duty of ordinary care by not removing accumulated ice, snow, or other precipitation from outside areas during a storm, other jurisdictions have held the duty is not breached. Walker v. The Memorial Hospital, 187 Va. 5, 45 S.E.2d 898 (1948), is a case often cited in support of this rule. In Walker, the plaintiff arrived at the hospital at 4:30 p.m. to visit her husband, a patient. The steps outside the hospital entrance were not ice covered, but snow had been swept to the sides of the steps and the platform leading to the door. 187 Va. at 9, 45 S.E.2d 898. Snow had fallen that morning The Walker court noted "there was a fairly continuous condition of freezing rain or sleet from before seven o'clock until eleven-thirty p.m., and that the conditions on the city sidewalks, and on the platform and steps of the hospital, were slippery, and that this was known to the hospital authorities." 187 Va. at 11, 45 S.E.2d 898. The court then concluded that a business establishment, absent unusual circumstances, may await the end of a storm and a reasonable time thereafter to remove ice and snow from outdoor entrance walks, platforms, or steps because it is impractical to take action earlier. 187 Va. at 13, 45 S.E.2d 898.

                and between the hours of 2 p.m. and 5 p.m.  The steps were wet although not frozen at 6 p.m.  About 6 p.m., freezing rain fell, and the steps became slippery about 7 p.m.  Around 8:30 p.m., a light freezing rain fell.  187 Va. at 10-11, 45 S.E.2d 898.   The plaintiff did not know snow had fallen during the [16 Kan.App.2d 301] afternoon.  She left the hospital at 9 p.m. and, as she started down the steps, she placed her hand on the handrail.  There appeared to be no ice on the steps, but as the plaintiff stepped down on the second step, she slipped and fell.  The area had not been treated with an ice-melting substance nor had any warning signs been posted.  No precipitation was falling at the time of the plaintiff's slip and fall.  187 Va. at 9, 45 S.E.2d 898
                

The court further reasoned that "[e]very pedestrian who ventures out at such time knows [he or she] is risking the chance of a fall and of a possible serious injury." 187 Va. at 22, 45 S.E.2d 898. A requirement that a business proprietor continually expend effort during a winter storm to remove precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden which is beyond that of ordinary care. Furthermore, "since the storm had not finally terminated, the exercise of reasonable care no more required defendant to warn of the result of the weather than it did to remedy the result." 187 Va. at 24, 45 S.E.2d 898. Ultimately, the Walker court affirmed the action of the trial court in setting aside the jury's verdict for the plaintiff. 187 Va. at 24, 45 S.E.2d 898.

The Minnesota Supreme Court, citing Walker as well as cases from Iowa, Pennsylvania, and New York, adopted the same rule in Mattson v. St. Luke's Hospital, 252 Minn. 230, 233, 89 N.W.2d 743 (1958). The Mattson court held: "The fact that the possessor [of property] may have attempted to take corrective measures during the storm's progress does not change the situation even though such measures were temporarily effective." 252 Minn. at 233, 89 N.W.2d 743.

Although no published Kansas cases discussing the precise issue before us were found, our Supreme Court has held that a municipality has no duty to clear streets and sidewalks of ice that has accumulated and become rough and rutted, absent sufficient notice and opportunity to remedy the situation. Speakman v. Dodge City, 137 Kan. 823, 829, 22 P.2d 485 (1933). In Speakman, more than four inches of snow had fallen on December 14. On December 17, the plaintiff was crossing an alley between two city streets when she slipped and fell. She alleged the City negligently allowed the snow and ice to remain and become ridged and uneven.

In reaching its holding, the Speakman court stated as follows:

"The general rule with respect to snow and ice is that municipal corporations are not held liable for injuries to persons occasioned by accumulations of snow and ice which at the time of the accident have been so recent that in the exercise of that reasonable and continuing inspection which the law requires it would not have discovered it in time to remedy it by the exercise of reasonable care. The city has a reasonable time for the removal of the snow after it has ceased to fall and may even wait for a change of temperature where the conditions are such as to render the work of removal impracticable. [Citations omitted.]" 137 Kan. at 828-29, 22 P.2d 485.

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