Camp v. J. H. Kirkpatrick Co.

• Decision Date: 04 June 1952
• Docket Number: No. 12399,12399
• Citation: 250 S.W.2d 413
• Parties: CAMP v. J. H. KIRKPATRICK CO.
• Court: Texas Court of Appeals

Page 413

250 S.W.2d 413

CAMP v. J. H. KIRKPATRICK CO.

No. 12399.

Court of Civil Appeals of Texas, San Antonio.

June 4, 1952.

Rehearing Denied July 9, 1952.

O. Shelly Evans, San Antonio, for appellant.

Carl Wright Johnson, Nat L. Hardy, San Antonio, for appellee.

POPE, Justice.

This is a slip and fall case and is an appeal by an invitee from an instructed verdict in favor of the defendant building owner, and concerns the nature of the duty the owner owed the invite.

T. J. Camp was an employee for a dental clinic that officer on the second floor of the Kirkpatrick Building, situated in downtown San Antonio and owned by Kirkpatrick Company. On the morning of April 1, 1949, there had been a slow moderate rain for several hours. Camp on that morning attended to some personal business matters until about eleven o'clock and then went to the building. He got out of a car that stopped at the curb and with the use of crutches walked across the wet sidewalk to an entranceway leading to a stairway to the second floor. The entranceway was owned and controlled by the Kirkpatrick Company. It was about five feet wide and extended about eight feet from the edge of the sidewalk to the first riser of the stairway. The floor was constructed of terrazzo, sloped about three inches from the foot of the stair toward this sidewalk and there was a roof that covered the entranceway. When Camp entered upon the entranceway it was still raining. Camp had worked in the same building and had used the stairs and the approach for more than thirteen years, during which time he had seen all the physicial characteristics of the floor, the slope and the entranceway, thousands of times. The proof showed that the building management employed a janitor and that during bad weather he placed a 'coco' mat in the entranceway. On the morning of April 1, 1941, the management owned a mat that was five feet long and four feet wide, but on that morning it was not placed in the entranceway. The management knew that it was raining, as did also the appellant. There was no proof of any previous incident of slipping on the approach, or that the owner had actual knowledge that it was slippery. Camp fell in the entranceway and sustained injuries for which he sought recovery.

Appellant asserted negligence on the part of the Kirkpatrick Company for: (1) permitting mud and water to accumulate on the approach, (2) failing to place the coco mat on the approach, and (3) maintaining the approach with the three inch slope. At the conclusion of plaintiff's evidence, the court granted defendant's motion for instructed verdict, which asserted, (1) failure to prove defendant's negligence, (2) that the evidence as a matter of law established plaintiff's contributory negligence, (3) as well as the defense of volenti non fit injuria, and (4) that the conditions complained of were open and obvious.

Slip and fall cases, like other negligence suits, involve at least the existence of a legal duty toward the invitee and the owner's negligent breach of that duty proximately resulting in injury to the invitee. The burden of proving any claimed contributory negligence or other defense rests upon the owner. Some authorities hold that there is no original breach of duty by an owner when the condition complained of is open and obvious. Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Hodges v. Nix, Tex.Civ.App., 225 S.W.2d 576; Russell v. Liggett Drug Co., Tex.Civ.App., 153 S.W.2d 231; Hausman Packing Co. v. Badwey Tex.Civ.App., 147 S.W.2d 856; Crump v. Hellams, Tex.Civ.App., 41 S.W.2d 288. Whether a condition is open and obvious is treated by still other cases as hearing on the issue of the invitee's own contributory negligence. Blanks v. Southland Hotel, Tex., 229 S.W.2d 357; Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585; J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698; Renfro Drug Co. v. Lewis, Tex., 235 S.W.2d 609, 621; West Texas Utilities Co. v. Harris, Tex.Civ.App., 231 S.W.2d 558; H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501; Fergeson v. National Bank of Commerce, Tex.Civ.App., 174 S.W.2d 1015; United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297; accord, Boltinghouse v. Thompson, Tex.Civ.App., 12 S.W.2d 253; Shawver v. Amercian Ry. Express Co., Tex.Civ.App., 236 S.W. 800. The significance of this dissimilar treatment of the same facts is that it confuses the plaintiff's burden to prove defendant's breach of duty and negligence with the defendant's burden to prove plaintiff's breach of duty and contributory negligence.

To discern the burden that rests upon a plaintiff invitee, it is necessary to state correctly the duty the owner owes him, and the confusion of plaintiff's and defendant's burden is traceable to an overstatement of the duty owing the invitee. The oft-cited duty rule in Marshall v. San Jacinto Building Co., Inc., Tex.Civ.App., 67 S.W.2d 372, 374, illustrates the point. It is there stated: "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care." Such a duty statement, if applied to an automobile negligence suit, would be to state that a defendant driver was under a duty to keep a reasonable lookout so long as the plaintiff kept a reasonable lookout. Such a statement would confuse two duties, and result in decisions saying that the defendant driver did not breach his duty to keep a proper lookout because the plaintiff driver failed to keep a proper lookout too. That is what was happened in many slip and fall cases, by reason of an overstatement of the owner's duty so that it includes matters of contributory negligence. If a defendant driver was not negligent it is immaterial that a plaintiff driver may also have been negligent. And in a slip and fall case, if the defendant owner was not negligent because he did not have and ought not to have had knowledge of danger, it is immaterial that the plaintiff invitee was himself negligent in failing to see what he ought to have seen. Knowledge is the important inquiry, but description in the duty rule of a condition that may charge one with or excuse one from knowledge tends to reduce that inquiry to an evidentiary issue. Whether a condition is open and obvious or hidden and concealed may be, but not necessarily must be, the same thing as the presence or the absence of knowledge.

A more correct statement of an owner's duty would be that he is under a duty to use reasonable care to make and keep the premises free from danger to invitees when the danger is known or should be known by the proprietor. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431, 20 A.L.R.2d 853; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625; Renfro Drug Co v. Lewis, Tex., 235 S.W.2d 609, 615. By such a duty rule, the invitee then is under a burden to prove the presence of a danger on the premises and that the owner knew or ought to have known of that danger, that he was negligent in maintaining the premises in that condition, and that such negligence proximately caused the injury. When there is added to the duty rule the requirement that the condition must be one that is hidden or concealed from the invitee, nothing is really added. Whether the condition is hidden or obvious, an invitee must still make prima facie proof that the owner either knew or ought to have known of the presence of danger. Smith v. Safeway Stores, Tex.Civ.App., 167 S.W.2d 1044; Lone Star Gas Co. v. Ballard, Tex.Civ.App., 138 S.W.2d 633; Derichs v. O. K. Auto Parts & Sales Co., Tex.Civ.App., 92 S.W.2d 465; The Fair v. Preisach, Tex.Civ.App., 77 S.W.2d 725; Crump v. Hellams, Tex.Civ.App., 41 S.W.2d 288. Otherwise, the proprietor would be liable without fault by virtue of mere ownership of premises where a person fell. Galveston H. & H. R. Co. v. McLain, Tex.Civ.App., 218 S.W. 65, 67; For Worth & D. C. Ry. Co. v. Hambright, 130 S.W.2d 436, 439; Hodges v. Nix, 225 S.W.2d 576. A proprietor's duty does not compel perfection, nor must he render accidents impossible.

An invitee is also under a duty to exercise reasonable care for his own selfprotection against dangers of which he knows or ought to know. But the duty on the part of the defendant owner is often confused with the invitee's duty to protect himself, by stating in the duty rule that the owner is under a duty to protect the invitee from 'hidded dangers' or from those that are known to the owner and unknown to the invitee. Actually, an invitee's knowledge of danger or the existence of facts from which he ought to have knowledge is relevant on the issue of the invitee's own contributory negligence.

There is a clearer understanding of the burden of proof and the respective duty rules imposed upon the invitee and owner when we keep slip and fall cases within the usual pattern of negligence suits so that the invitee is burdened with proving that the owner knew or ought to have known of the presence of danger, and the owner is burdened with proving that the invitee also knew or ought to have known of the presence of danger. Smith v. Henger, supra; H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501; Rogers v. Collier, supra. And this is true whether the condition is hidden and concealed or open and obvious, for even though concealed, one is responsible for his conduct, if in fact he had knowledge from whatever source. Assuming a condition of serious danger that is nhidden from an invitee; he can not recover if the owner neither knew nor ought to have known of it, for there is no breach of duty. Or assume a like condition of danger that is hidden and concealed from optical examination, but one about which the invitee actually has knowledge; he still may be denied recovery by reason of his actual knowledge. Hence, whether one...