Bonn v. Sears, Roebuck & Co.

• Decision Date: 07 March 1969
• Citation: 440 S.W.2d 526
• Parties: Stephen F. BONN, Appellant, v. SEARS, ROEBUCK & COMPANY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 526

440 S.W.2d 526

Stephen F. BONN, Appellant, v. SEARS, ROEBUCK & COMPANY, Appellee.

Court of Appeals of Kentucky.

March 7, 1969.

Rehearing Denied June 6, 1969.

John Tim McCall, Louisville, for appellant.

Robert C. Hobson, Woodward, Hobson & Fulton, Louisville, for appellee.

REED, Judge.

Plaintiff-appellant, Stephen F. Bonn, sued defendant-appellee, Sears, Roebuck & Company (hereinafter called Sears), for personal injuries sustained by a fall into a grease pit in an automobile service station operated by Sears. Sears moved for a summary judgment in its favor. Considered on the motion were the plaintiff's deposition taken by the defendant for discovery purposes, and an affidavit of plaintiff's brother who was with him when he fell. The trial court sustained Sears' motion for a summary judgment on the ground that plaintiff was shown to have been contributorily negligent as a matter of law. The plaintiff appeals.

The service station was located within a large parking lot to the rear of the main Sears store. It consisted of a large service room with space to accommodate six cars, and a smaller sales room which was at the north end of the building. A partition with a door in it separated the salesroom from the service room. In the service room there were three parallel grease pits, each one running east and west. Each one was long enough to accommodate two cars (one in front of the other), but the middle area of each pit was closed over to constitute a walking space between the two cars. Each pit had a raised rim three inches in height extending around its perimeter, and the surface of the middle walking space across each pit was level with the top of the rim.

At the time of the accident, a car was parked over the western end of the northernmost pit (the one closest to the sales room) but the front of the car did not completely cover the pit opening--there were perhaps eighteen inches of open space between the front bumper and the walking space across the pit. The affidavit of plaintiff's brother states the distance was between one and four feet. This affidavit also indicates there were one or more cars over the next pit to the south.

The accident occurred around noon on a clear day late in May. The main vehicle doors of the service room were open and there was ample light.

On the day of the accident, plaintiff, accompanied by his brother, had made arrangements in the main service store for the purchase of a car battery for use in a boat. He was directed to the service station to pick up the battery. He went to the station and entered the salesroom where he gave his sales receipt to a clerk. The latter then told him that to obtain the battery he would have to go out in the service room and see the foreman. Plaintiff and his brother entered the service station through the partition door and, confronting the car parked over the grease pit, turned to the left and walked to the front of the car. Plaintiff testified that he walked from sort of the center of the car and down. He said he and his brother walked straight, and angled toward the front of the car to try to make their way farther on down the building. Plaintiff said he fell in the pit when he was rounding the corner of the car--rounding right around the headlight. When asked if he walked beside the car any distance, plaintiff stated that it took him maybe two steps to walk from the side door of the car to the front of it. He testified that he and his brother took a left about-face and sort of angled in the direction of the front of the car. Plaintiff frankly admitted that he could have seen the pit had he been looking down. He explained his failure so to look by reason of the fact that he was concentrating on looking around for the foreman. Plaintiff apparently had never been in this service room before, but his place of employment was in a building nearby and he admitted that he knew the place was an automobile service station, and further admitted a knowledge that garages have grease pits. He was a graduate of Speed Scientific School and was presently employed by the United States Corps of Engineers writing specifications for government contracts. Plaintiff admitted stating after the accident to an employee of Sears that he just wasn't looking where he was going. His exact testimony as to this point is as follows:

'Q 228. Mr. Bonn, let me ask you while I am looking here, do you remember saying to this fellow that helped you out under the pit, 'I just wasn't looking where I was going.'?

A. Yeah.

Q 229. That is true?

A. Well, I would say at the time I said that--I was--I guess I was just trying to be jovial about the whole thing. I was kind of embarrassed about falling into the hole, I guess.

Q 230. Naturally. But you did say that to him?

A. Yes.'

Plaintiff's eyesight was poor and he was wearing glasses on the occasion of the accident.

The issue to which the parties direct most of their discussion on this appeal is whether plaintiff was contributorily negligent as a matter of law. We think that more properly the issue should be addressed to whether or not Sears was negligent.

A possessor of business premises is not liable to his invitees for physical harm caused to them by any condition on the premises whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness.

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