Capobianco v. Yacovelli Restaurant, Inc.
| Decision Date | 18 September 1962 |
| Docket Number | No. 30990,30990 |
| Citation | 360 S.W.2d 302 |
| Parties | Norman CAPOBIANCO, Plaintiff-Respondent, v. YACOVELLI RESTAURANT, INC., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Alexander & Robertson, Ernest E. Baker, Louis A. Robertson, St. Louis, for defendant-appellant.
Flynn, Parker & Badaracco, Joseph L. Badaracco, St. Louis, for plaintiff-respondent.
DOERNER, Commissioner.
Defendant appeals from a verdict and judgment for $5,000 entered in favor of plaintiff for personal injuries and damages resulting from a fall on defendant's premises.
Defendant, a corporation, operates a restaurant located on Big Bend Road in St. Louis County. Plaintiff, a self-employed refrigeration and air-conditioning service man, had been taking care of the defendant's equipment for about ten years. On July 19, 1960, plaintiff went to the defendant's restaurant to install a new water pump adjacent to the water tower which supplied water to the defendant's two air-conditioning units. The water tower was located outdoors, in the southwest corner of a U-shaped court formed by the main brick building on the east, by two frame additions on the north and south, and by a picket fence on the west which ran from the northwest corner to the water tower. A stairway to the basement was located on the east side of the court, and so constructed that the walls of the stairwell were formed of the brick was of the building on the east, and walls of eight inch concrete blocks on the south and west, with the concrete steps descending from the north. The steps and stairwell were entirely enclosed by wooden folding doors over the steps and by a wooden cover or platform over the remainder of the stairwell, such coverings having been constructed about five years previously. The doors were nailed shut, and the entranceway had not been in use for that period of time. The cover was from 3 to 4 feet wide, from the wall to the western edge, and was about a foot and a half or two feet above the ground. There was a window about 3 feet above the platform.
At the time plaintiff installed the water pump the restaurant had not yet opened for business for the day, and the only other person on the premises was one Hoppe, the porter, who was working inside. Plaintiff testified that after installing the pump, and aligning it visually, he desired to align it while it was in operation so as to achieve the least possible amount of vibration. There was no way to start the pump other than by throwing on the switch on either of the defendant's air-conditioning units in the building, which automatically activated the pump. Plaintiff said that he did not want to go into the building and throw on the switch because of the possibility that the pump might tear itself apart before he could return and properly align it. He decided to attract Hoppe's attention, and to ask him to throw on the switch. To that end, plaintiff testified, he stepped on the western edge of the platform over the stairwell, leaned forward with his left hand against the wall, and was about to knock on the window with his right hand when the boards forming the platform broke, causing plaintiff to fall about 7 to 8 feet to the bottom of the stairwell. Plaintiff said he had followed the same procedure on prior occasions when he wanted the porter to turn on a switch.
On direct examination by his counsel plaintiff was asked whether on any prior occasion or any other time before the fall he had ever been warned to stay off of the cover, and answered 'Yes.' However, an objection was made to the question, and sustained. Plaintiff was then asked whether Mr. Yacovelli had ever talked to him about the areaway when he had been there on any prior occasion, and replied that he had been told '* * * to be careful of it,' meaning the cover over the stairwell. On cross-examination his testimony regarding the warning given him was as follows:
* * *
* * *
'
Plaintiff insisted that he had stood with both feet only on the edge of the cover that was supported by the concrete blocks, and denied that he had stepped on any other part of the cover or had started to walk over to the window.
On behalf of the defendant, its general manager, Deway Yacovelli, testified that he could not remember when he advised the plaintiff not to step on the platform, but that he did recall he had told plaintiff '* * * to be careful, that it was not made to walk on and it might not hold his weight.' On cross-examination he stated that the warning had been given prior to the accident, on just one occasion because most times he wasn't there when the plaintiff was. He was asked how he happened to know that it was necessary to warn plaintiff, and replied:
Subsequently he testified that he had seen plaintiff stand on the cover '* * * a few times,' but whether he had warned plaintiff the first time he saw him stand on it or the second time he couldn't recall. He also stated that he stood on the cover on one occasion to repair a window broken by robbers, but that he had been quite careful not to step in the center section, and walked on the outer edge.
The opinion we have reached regarding defendant's initial point on appeal makes it unnecessary to recite the nature and extent of plaintiff's injuries and damages. That contention is that the court erred in overruling defendant's motion for a directed verdict at the close of the evidence because the plaintiff had failed to make a submissible case. The parties differ as to the status of plaintiff on defendant's premises at the place where he fell, plaintiff maintaining that he was a business invitee, and defendant arguing that plaintiff had become a mere licensee because he had exceeded the scope of the invitation extended to him by stepping on the stairwell cover after he had been told not to do so. Because of the view we take of the case it is unnecessary to rule this question, and for the purposes of this opinion we shall assume that plaintiff was a business visitor or invitee.
It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existence of some duty on the defendant's part owing to the plaintiff, which duty has been neglected or violated by the defendant, with the injury suffered by the plaintiff directly attributable thereto, and flowing therefrom. Reichholdt v. Union Electric Company, Mo., 329 S.W.2d 634; Hiltner v. Kansas City, Mo., 293 S.W.2d 422. What duty, then, does a possessor of land owe to his business invitee? The law governing that subject is clearly set forth in 2 Restatement of the Law of Torts, Sec. 343, p. 938, as follows:
'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
'(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
'(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
'(c) invites or permits them to enter or remain upon the land without exercising reasonable care
'(i) to make the condition reasonably safe, or
'(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive,...
To continue reading
Request your trial
-
Graham v. Conner
...637; Hiltner v. Kansas City, Mo., 293 S.W.2d 422, 427(7); Kenward v. Hultz, Mo.App., 371 S.W.2d 344, 349; Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302, 305(1); Lanham v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 243, 245(3); Meyer v. St. Louis Public Service Co.......
-
Otts v. Brough
...Ames Plaza, Inc., 177 Neb. 88, 128 N.W.2d 564 (1964); Anthes v. Anthes, 255 Iowa 497, 122 N.W.2d 255 (1963); Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302 (1962); Broome v. Parkview, Incorporated, 49 Tenn.App. 725, 359 S.W.2d 566 (1962); Alsup v. Saratoga Hotel, supra. A......
-
McTurman v. Bell
...master. 65 C.J.S. Negligence Sec. 50, pp. 541, 543; Small v. Ralston Purina Co., Mo.App., 202 S.W.2d 533(3); Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302; Kenward v. Hultz, Mo.App., 371 S.W.2d Thus, where the things used in the work are not, in and of themselves, defect......
-
Kenward v. Hultz
...latter's express invitation, and proceed to determine the remaining appeal issues under that assumption. In Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302, 305, the court said: 'It is an elementary principle of the law of torts that there can be no actionable negligence i......