Baltzelle v. Doces Sixth Ave., Inc.

• Decision Date: 15 November 1971
• Docket Number: No. 753--I,753--I
• Citation: 490 P.2d 1331,5 Wn.App. 771
• Court: Washington Court of Appeals
• Parties: Phylene T. BALTZELLE, a widow, Respondent/Cross-Appellant, v. DOCES SIXTH AVENUE, INC. et al., Appellants/Cross-Respondents.

Page 771

5 Wn.App. 771

490 P.2d 1331

Phylene T. BALTZELLE, a widow, Respondent/Cross-Appellant, v. DOCES SIXTH AVENUE, INC. et al., Appellants/Cross-Respondents.

No. 753--I.

Court of Appeals of Washington, Division 1, Panel One.

Nov. 15, 1971.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Robert P. Piper and Steven V. Lundgren, Seattle, for appellants.

Skeel, McKelvy, Henke, Evenson & Betts W. R. McKelvy, Seattle, for respondent.

HOROWITZ, Chief Judge.

Plaintiff commenced a personal injury action below. After trial to the court, judgment was entered in plaintiff's favor for $19,110.45, including therein the sum of $10,000 for general damages. Thereafter, defendants appealed and plaintiff cross-appealed on the ground that the general damages awarded should be at least doubled. For the reasons next stated, we approve the trial court judgment appealed from.

Defendants operated Doces Sleep Shop at 1514 Sixth Avenue, Seattle. On October 28, 1968, plaintiff entered the shop desirous of purchasing a daveno. After learning that defendants' store did not have the type of daveno she wanted, plaintiff left the store through the north Sixth Avenue door. Viewed from the inside of the store, the door opened from right to left out onto a 4-foot 5-inch-wide entranceway beyond the curb of a false planter next mentioned, extending the entire length of the store property north and to some extent south of the door. Immediately outside and to the right of the door was a false planter consisting of a paved area bordered by a flat cement 4-inch curb of a darker color which extended out from the building westerly towards Sixth Avenue for approximately 1 foot and then turned at a right angle in a northerly direction and paralleled the store window until it reached the northerly exterior wall of the shop. The 1-foot false planter curb at the point of contact with the base of the storefront window wall was flush with the entranceway floor and extended therefrom westerly, rising gradually until it reached a height of three-fourths of an inch above the entranceway pavement level at its westerly extremity. It is reasonably inferable that a store customer exiting from the north door, after allowing it to close, could unwittingly step on the 4-inch flat cement curb without realizing that he was not standing on the entrance floor itself. Within the planter area immediately to the right of the door and approximately 4 inches from the inside of the 1-foot curb above described was located a siamese standpipe. The top of the standpipe slightly overhangs the 4-inch curb in front of it into the space above the entrance floor. The plaintiff testified:

I just walked out of the door and stepped aside and let it close, and I stepped back a second and looked up and down the street and decided I would go to Fredericks, and I took a step and fell over something and landed on my hip. * * * I felt it hit against my leg.

The court found:

That as (plaintiff) was proceeding toward Sixth Avenue and after she had gone through that door, and while she was still on property owned, operated and maintained by the defendants, she fell because of a hazardous condition existing in close proximity to the door through which she had walked, said condition consisting in part of * * * a standpipe and a siamese connection, and because of the general structure of the area near the door * * * which also included a false planter area with a false parapet or border which was not flush or level in its entirety with the surrounding area referred to in the evidence as terrazo * * * also on the defendants' property. (See Exhibit 18.) That because of the close proximity of the pipe and the nature of the other structures above mentioned as related to each other and the door * * * there existed a hazardous condition to which the defendants' invitees, including this plaintiff, were subjected and exposed, and that as a result of the defendants' negligence in maintaining and operating the store * * * with the existing condition above referred to, the plaintiff fell, sustaining injuries and damages as hereinafter set forth.

Finding 2. The court found further that the hazardous condition described 'made it reasonably foreseeable that the type of accident experienced by this plaintiff might reasonably be expected to occur as a result of the defendants' negligence.'

Defendants first contend that there is not substantial evidence supporting the trial court's finding of negligence. We disagree. The legal principles involved are clear, although their application on issues of reasonable conduct and reasonably foreseeable harm pose a more difficult problem. A preliminary statement of these principles is appropriate. The defendants, as owners and proprietors of a store, have a duty to exercise reasonable care to keep those portions of the premises used by their customers in a reasonably safe condition, or to warn the customer-invitees of the dangerous condition known or which should have been known to the owner and which is not known or reasonably discoverable by the invitee. Hemmen v. Clark's Restaurant Enterprises, 72 Wash.2d 690, 434 P.2d 729 (1967); Hartman v. Port of Seattle, 63 Wash.2d 879, 389 P.2d 669 (1964); Blancher v. Bank of California, 47 Wash.2d 1, 286 P.2d 92 (1955); Wardhaugh v. Weisfield's, Inc., 43 Wash.2d 865, 264 P.2d 870 (1953). Included in this general duty is the obligation to use ordinary care to keep the approaches, entrances and exits in a reasonably safe condition for use of customers who are entering or leaving the business. DeHeer v. Seattle Post-Intelligencer, 60 Wash.2d 122, 372 P.2d 193 (1962); Tyler v. F. W. Woolworth Co., 181 Wash. 125, 41 P.2d 1093 (1935); Annot., 81 A.L.R.2d 750 (1962). The question of whether the defendants failed to exercise reasonable care in maintaining the obstructions adjacent to the door is one of fact to be resolved by the trier of fact. Smith v. B & I Sales Co., 74 Wash.2d 151, 443 P.2d 819 (1968). See also, Gordon v. Deer Park School Dist. No. 414, 71 Wash.2d 119, 426 P.2d 824 (1967).

The testimony and exhibits reveal that the standpipe and the false planter were placed in the reasonably foreseeable footpath of a person exiting through the door of the entranceway who might step back on the flat cement 4-inch curb after allowing the door to close without being aware at the time that the curb was not part of the entranceway floor. This fact alone provides substantial evidence for the trial court's finding of negligence. Defendants cite various cases where it was held, as a matter of law, that the storeowner was not negligent. See e.g., Engdal v. Owl Drug Co., 183 Wash. 100, 48 P.2d 232 (1935), involving injuries sustained by a customer who stepped backward and tripped over a scale located off an aisle 4 1/2 feet wide and out of the line of travel. All cases so cited, however, are distinguishable on their facts. None involve an object placed in such proximate position to the exit door that customers might foreseeably run into it as they walked from the exit door as the plaintiff did in the instant case. Cf., Hammer v. Haggard,56 Wash.2d 744, 355 P.2d 334 (1960). Additionally, it is suggested, on the basis of the court's oral decision, that the determination of negligence was erroneously made on the basis of hindsight; however, the written findings, which must control (See Schmechel v. Ron Mitchell Corp., 67 Wash.2d 194, 406 P.2d 962 (1965)), indicate that the court properly viewed the matter in terms of foreseeability prior to the fact of the accident. See Gordon v. Deer Park School Dist. No. 414, Supra; Severns Motor Co. v. Hamilton, 35 Wash.2d 602, 214 P.2d 516 (1950); Peterson v. Betts, 24 Wash.2d 376, 165 P.2d 95 (1946); W. Prosser, Law of Torts § 31 (4th ed. 1971). We cannot hold on this record that reasonable minds could not differ concerning whether defendants exercised reasonable care. A fact question is presented. Severns Motor Co. v. Hamilton, Supra.

Next, it is contended by defendant that plaintiff was contributorily negligent as a matter of law. It is contended that the dangers complained of here were obvious and that plaintiff failed to exercise her duty of taking measures to avoid an obvious danger. See Hammer v. Haggard, Supra; Smith v. Manning's, Inc., 13 Wash.2d 573, 126 P.2d 44 (1942). But this argument assumes that dangers are either hidden or obvious, and that in the latter case the plaintiff must be negligent while in the former she cannot be. However, the plaintiff's basic duty is to exercise reasonable care to avoid self injury. Costacos v. Spence, 74 Wash.2d 884, 447 P.2d 704 (1968); See also, Rosendahl v. Lesourd Methodist Church, 68 Wash.2d 180, 412 P.2d 109 (1966). Reasonable care on her part may or may not require that she look on the ground in front of her as she walks on the entranceway of the store. See Smith v. Manning's, Inc., Supra. It is settled law that a customer-invitee, when walking in an area where there is no reason to anticipate a hazard, need not keep her eyes glued to the floor; that the fact that the hazard is observable is not controlling on the issue of contributory negligence because she may assume that the entranceway leading in and from the store is in a reasonably safe condition in the absence of notice to the contrary. Smith v. B & I Sales Co., Supra; Todd v. Harr, Inc., 69 Wash.2d 166, 417 P.2d 945 (1966); Blasick v. City of Yakima, 45 Wash.2d 309, 274 P.2d 122 (1954); Simpson v. Doe, 39 Wash.2d 934, 239 P.2d 1051 (1952). Hence, we cannot say that, as a matter of law, the plaintiff was under a mandatory duty to look at the ground in front of her as she walked. The issue of contributory negligence, therefore, was properly left to the consideration of the trier of fact. See Smith v. B & I Sales Co., Supra; Wardhaugh v. Weisfield's, Inc., Supra; McBeath v. Northern Pacific Railway Co., 32 Wash.2d 910, 204 P.2d 248 (1949). Defendants suggest that the evidence shows pl...