Burns v. Veterans of Foreign Wars

• Decision Date: 21 April 1989
• Docket Number: No. 2503,A,No. 87-386,2503,87-386
• Citation: 231 Neb. 844,438 N.W.2d 485
• Court: Nebraska Supreme Court
• Parties: Jeanne A. BURNS, Appellant and Cross-Appellee, v. VETERANS OF FOREIGN WARS, a Nebraska Nonprofit Corporation, doing business as VFW Benson Postppellee and Cross-Appellant; The Aetna Casualty & Surety Company, a Foreign Insurance Corporation, Appellee.

Page 485

438 N.W.2d 485

231 Neb. 844

Jeanne A. BURNS, Appellant and Cross-Appellee, v. VETERANS OF FOREIGN WARS, a Nebraska Nonprofit Corporation, doing business as VFW Benson Post No. 2503, Appellee and Cross-Appellant;

The Aetna Casualty & Surety Company, a Foreign Insurance Corporation, Appellee.

No. 87-386.

Supreme Court of Nebraska.

April 21, 1989.

Syllabus by the Court

1. Motions to Dismiss. A party against whom a motion to dismiss is directed is entitled to have all relevant evidence accepted or treated as true, every controverted fact as favorably resolved, and every beneficial inference reasonably deducible from the evidence.

2. Directed Verdict. A court cannot decide an issue as a matter of law unless the facts adduced on an issue are such that reasonable minds can draw but one conclusion from the evidence. In a jury trial, when evidence compels but one reasonable conclusion regarding an issue or question in the litigation, a court can properly direct a verdict on such issue or question.

3. Negligence. A plaintiff is contributorily negligent if (1) the plaintiff fails to protect himself or herself from injury; (2) the plaintiff's conduct concurs and cooperates with the defendant's actionable negligence; and (3) the plaintiff's conduct contributes to the plaintiff's injuries as a proximate cause.

4. Negligence. For actionable negligence, there must be a defendant's legal duty to protect or not injure the plaintiff, a failure to discharge that duty, and plaintiff's damage proximately caused by such undischarged duty.

5. Negligence: Liability. One cannot be held responsible on the theory of 6. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction; (2) the tendered instruction is a correct statement of the law; and (3) the tendered instruction is warranted by the evidence.

negligence for an injury caused by an act or omission unless the negligent tort-feasor had knowledge or was reasonably charged with knowledge that the act or omission involved danger to another.

7. Negligence: Liability: Invitor-Invitee: Proximate Cause. A possessor of land is subject to liability for injury caused to a business invitee by a condition on the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to a business invitee; (3) the defendant should have expected that a business invitee such as the plaintiff, either (a) would not discover or realize the danger, or (b) would fail to protect himself or herself against the danger; (4) the defendant failed to use reasonable care to protect the plaintiff invitee against the danger; and (5) the condition was a proximate cause of damage to the plaintiff.

Michael A. Nelsen, of Schmid, Mooney & Frederick, P.C., for appellant and cross-appellee.

Eugene P. Welch, of Gross, Welch, Vinardi, Kauffman & Day, P.C., for appellee and cross-appellant Veterans of Foreign Wars.

BOSLAUGH, WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and WITTHOFF, District Judge.

SHANAHAN, Justice.

Jeanne A. Burns sued the Veterans of Foreign Wars, a Nebraska nonprofit corporation, doing business as VFW Benson Post No. 2503 (VFW), in a slip and fall case based on VFW's negligence regarding the icy loading zone on its premises. From a defendant's verdict, Burns appeals and asserts error in the district court's refusal to direct a verdict that Burns was free from contributory negligence and in the instruction given on liability of a possessor of land for a dangerous condition known to or discoverable by the possessor. VFW cross-appeals and contends that the court should have directed a verdict against Burns because she failed to prove that the "ice patch caused her fall," and failed to prove that VFW was negligent by the presence of ice in its parking lot.

Burns filed suit against VFW, claiming that she was an invitee of VFW, which negligently allowed ice to accumulate in the loading zone near the front door of its building, an unsafe and dangerous condition which VFW knew or by exercise of reasonable care should have discovered. Burns further alleged that VFW was negligent in its failure "to have removed or remedied said [icy] condition or to have warned plaintiff concerning the same." VFW denied any negligence and alleged that Burns' negligence was "the sole and proximate cause" of her injuries.

Throughout the forepart of November 22, 1985, in Omaha, there were subfreezing temperatures, and a 19 ? F reading in midafternoon. Although there had been a 3-inch snow on November 20, snow cover had dissipated to 1 inch on November 22. There was no precipitation on November 22, and the weather was sunny.

Around 2 p.m. on November 22, Burns, an employee of Martin Pastry, drove her station wagon to the front door of the VFW club to deliver a multilayer or tiered wedding cake for a reception to be held in the ballroom of the club. Burns, who had previously delivered cakes at several other wedding receptions held in the VFW club, parked her northbound station wagon at the curb of the sidewalk, 6 feet from the club's front door on the east, the only convenient access to the club's interior. The asphalt driveway where Burns parked her vehicle sloped eastward to the club's parking Ten minutes into the cake assembly, Burns needed the top tier and returned to her station wagon. The last tier of the cake was located on the right rear seat of Burns' station wagon. As she stepped from the sidewalk and was walking at the right rear of her vehicle, Burns began looking for the handle of the station wagon's rear door to where the cake tier had been placed. Near the station wagon's right rear wheel, Burns fell, or in Burns' words: "[M]y feet just flew out from under me. It felt like they went up in the air." As a result of the fall, Burns sustained a broken ankle. When Burns attempted to get up, she noticed that she was on a smooth, untreated patch of ice about 2 feet wide. No VFW personnel had warned Burns about ice in the parking lot.

lot. Burns did not observe any ice as she approached the area used for loading and unloading at the club's east entrance. After she had parked her station wagon and from the left side of her vehicle, Burns commenced removing the cake, section by section, for assembly inside the club's ballroom. Burns entered the club through the front door. Just south of the doorway was a downspout for transmission of water from the club's roof to ground level. Water from the downspout entered a drain, which was laid beneath the sidewalk area, and discharged water onto the driveway and the area where Burns had parked her station wagon.

Dennis Taylor, the groom for whom Burns was delivering the cake, testified that he and his wife-to-be arrived at the VFW club shortly after noon on the day of the accident. Taylor had gone to the club early in order to carry some items into the hall and set up tables. When Taylor arrived, he also parked his car in the area immediately adjacent to the club's front door so that he could carry some stereo equipment into the hall. Taylor's bride-to-be, having driven her own car, arrived after Taylor and parked her car in the VFW parking lot. Taylor saw scattered icy patches between the parking lot and the sidewalk area in front of the club's east door and later walked his bride to and from her car several times because she nearly slipped and fell on the icy surface. About 15 minutes after Burns' fall, Taylor overheard Harry Housh, the VFW club manager, say, "I should have had somebody throw some salt out there."

At trial, Burns acknowledged that it was "conceivable" that she saw, but disregarded, the icy patch on the surface of the loading area at the club's entrance. Burns realized that the wintertime melting-freezing cycle in Omaha would result in the formation of ice on sidewalks and streets, requiring a pedestrian's extra precaution. According to Burns, the distinctive color and texture of the ice where she fell would have been apparent as she walked around her station wagon, but she was not looking at the ground as she approached the right rear door of her vehicle.

Burns called VFW personnel as witnesses, namely, Housh, and Harlan Menefee, the VFW custodian. Housh testified that he was aware that individuals setting up a wedding reception in the club's ballroom would use the front door through which Burns carried material into and out of the VFW club, and knew that people would carry items through the club's front door in preparation for a wedding reception. Housh admitted that he knew that the downspout had discharged water near the front door, and was aware that water from the downspout would freeze and cause an icy condition in the area adjacent to the front door. Menefee, who had been the VFW custodian for "a couple years," was the sole VFW employee responsible for seeing that the parking lot and walkways were free from ice, but could not recall whether he had checked for ice the day of the accident. Menefee testified that he had left the club before noon and, therefore, was absent from the club when Burns fell. At times before the day of Burns' fall, Menefee had noticed that water accumulated "in front of the drainspout" in the vicinity where Burns fell. On those occasions, Menefee would apply "Ice-Melt ... or salt" on the ice.

At the conclusion of the evidence, the judge determined, as a matter of law, that Burns was a business invitee. Burns requested 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 directed verdict that she was free from contributory negligence. VFW asked...