Albers v. Gehlert
| Decision Date | 12 December 1966 |
| Docket Number | No. 1,No. 51697,51697,1 |
| Citation | 409 S.W.2d 682 |
| Parties | Eula ALBERS, Appellant (Plaintiff), v. Roberta L. GEHLERT and Milton Gehlert, Respondents (Defendants) |
| Court | Missouri Supreme Court |
A. Robert Belscher, St. Louis, Donald S. Hilleary, Clayton, for appellant.
F. X. Cleary, Paul S. Brown, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents (defendants).
WELBORN, Commissioner.
Action for $35,000 damages for personal injuries sustained by plaintiff in fall on sidewalk at defendants' residence. Plaintiff appeals from directed verdict in favor of defendants at close of plaintiff's case.
Roberta L. Gehlert and Milton Gehlert, her husband, were owners and occupants of a residence at 122 Morningside Drive in Kirkwood. They had purchased a Frigidaire electric washing machine and were to receive a demonstration of its operation. Plaintiff Eula Albers performed such demonstrations by arrangement with the Frigidaire Sales Company. On January 24, 1962, Mrs. Albers telephoned Mrs. Gehlert and arranged to come to the Gehlert residence the next day and demonstrate the operation of the washing machine.
At about 9:00 A.M. on January 25, Mrs. Albers drove to the Gehlert residence and parked on the street in front of the house. Snow, which had fallen several days previously, covered the ground, but the Gehlert's driveway was free from snow. Mrs. Albers walked up the driveway to a side door of the Gehlert's house. She received no response to her knock at that door so she took a walk leading from the driveway to the front door of the house. A few steps before she got to the front door, 'all of a sudden it looked like the ice * * * was sprinkled over it like a finger out over the sidewalk.'
Mrs. Albers reached the front door and rang the doorbell. Mrs. Gehlert answered. After plaintiff had introduced herself, Mrs. Gehlert noticed that plaintiff's car was parked in a fire lane. She suggested that plaintiff move her auto and told plaintiff that she could park in the driveway.
According to plaintiff, 'I told her that there was ice on her walk near the steps and could I please come through and use the side door. She said, 'when you come back in I will leave you in the side door;' with that she closed the door. * * * So I turned and started back down the sidewalk which is only just a few steps to the ice and my heel caught on some of this ice and it seemed to be melting and running and I slipped all the way into the driveway. * * * Mrs. Gehlert ran out. * * * and said, 'why didn't I let you come through * * * I wish this had been me instead of you. * * * " The nature of plaintiff's injury is not here significant.
On this appeal, plaintiff contends that the trial court should not have ordered a directed verdict for defendants 'because the evidence most favorable to the plaintiff shows that the defendants were negligent in the act of closing the door and refusing plaintiff (a business invitee) a safe passage through the house at plaintiff's request, because the defendants knew, or should have known that to so refuse the plaintiff would force her to encounter the danger of the icy front sidewalk and probably be injured.'
Plaintiff's position is that Mrs. Gehlert's refusal to permit plaintiff to go through the house was negligence as described in 2 Restatement of Torts, 2d, § 302(b), p. 82. That work states: 'A negligent act * * * may be one which involves an unreasonable risk of harm to another through * * * (b) the foreseeable action of the other, a third person, an animal, or a force of nature.'
Defendants' position is that, whether or not defendants' conduct might have constituted negligence, there can be no liability because defendants owned no duty to plaintiff in the circumstances. In this connection, we note Comment a to § 302 of the Restatement, 2d, p. 82.
Conceding that plaintiff was an invitee and that the general duty owed an invitee is the exercise of reasonable care, defendants'...
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