Carrender v. Fitterer

• Decision Date: 14 December 1983
• Docket Number: No. 36,36
• Citation: 503 Pa. 178,469 A.2d 120
• Parties: Ruth A. CARRENDER and Walter R. Carrender, her husband v. Paul FITTERER and Linda L. Fitterer, his wife, Appellants. M.D. 1983.
• Court: Pennsylvania Supreme Court

Page 120

469 A.2d 120

503 Pa. 178

Ruth A. CARRENDER and Walter R. Carrender, her husband v. Paul FITTERER and Linda L. Fitterer, his wife, Appellants.

No. 36 M.D. 1983.

Supreme Court of Pennsylvania.

Argued Oct. 17, 1983.

Decided Dec. 14, 1983.

[503 Pa. 180] James W. Evans, Harrisburg, for appellants.

Herbert A. Schaffner, Harrisburg, for appellees.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION OF THE COURT

ROBERTS, Chief Justice.

This appeal arises from an action in trespass brought by appellee Ruth Carrender in which appellee sought to recover for injuries sustained when she slipped on a patch of ice in a parking lot owned by appellants Paul and Linda Fitterer and used by appellants to provide parking to patients attending appellants' chiropractic clinic. ¹ A jury found appellants to have been sixty-five percent negligent and appellee to have been thirty-five percent negligent, and awarded appellee damages of $70,000, an amount which was molded by the trial judge to reflect the parties' percentages of negligence. The judgment entered was affirmed by a panel of the Superior Court, and this Court granted allowance of appeal.

We conclude that the evidence presented by appellee was insufficient to support a verdict in her favor. Accordingly, we reverse the order of the Superior Court and remand the record to the Court of Common Pleas of Dauphin County with the direction that judgment be entered in favor of appellants.

I

Appellee had been a patient of appellants' clinic for approximately seven years prior to the accident. On January 16, 1979, the day of the accident, appellee drove to appellants' clinic to receive treatment for a back ailment. She parked her car next to a parked car in the patients' lot, which is built on an incline contiguous to the clinic. A sheet of smooth ice covered the area of the parking lot between the two cars, but the rest of the surface of the parking lot was free of ice and snow. Upon opening the driver's door, appellee placed both feet on the icy surface and prepared to alight from her vehicle. At trial, appellee testified that, while still seated in her car, she had become aware of the slippery conditions of the surface below her. ² Appellee, who wears a prosthesis consisting of an artificial lower leg, also testified that she had been aware of the particular danger that maneuvering on ice presented to a person with a prosthesis. ³

Although appellee was aware that several convenient parking spaces free of ice were available, she kept her car in the space which she had chosen, alighted from her vehicle, and proceeded across the ice toward the clinic, placing her hand on the adjoining vehicle to help negotiate the slippery surface. She entered the clinic some thirty feet away without incident. After receiving treatment, appellee retraced her steps to the rear of her car, where she again encountered the icy conditions. Again appellee gripped the adjoining automobile for support and proceeded across the ice toward the driver's door of her own automobile; once there, she abandoned her support and reached into her pocketbook to get her keys. Seconds later, she slipped and fell to the parking lot, sustaining a fracture of the left hip.

Appellee brought the present trespass action alleging that appellants had been negligent in failing to maintain the parking lot properly. At the close of appellee's case, appellants requested the entry of a compulsory non-suit on the ground that appellee had failed to establish a prima facie case of negligence. The trial court denied the request and directed appellants to proceed with their evidence.

At the conclusion of the parties' presentation of evidence, the trial court instructed the jury that a possessor of land has only a limited duty to prevent harm to invitees from known or obvious dangers. The court also instructed that if the jury should find that appellee had been contributorily negligent, such negligence could be taken into account in apportioning fault, and that any negligence on appellee's part would mitigate appellants' liability, if any, to appellee. The court, however, refused appellants' proposed "assumption of risk" charge, reasoning that the defense of assumption of risk as a complete bar to recovery had been wholly merged with the defense of contributory negligence, and that the proposed charge was thus incompatible with Pennsylvania's comparative negligence statute, 42 Pa.C.S. § 7102. ⁴ After the jury's verdict the trial court denied appellants' motion for judgment notwithstanding the verdict and for a new trial.

On appeal, a panel of the Superior Court sustained the trial court's denial of appellants' motions for judgment n.o.v. and a new trial, ruling that the trial court had not erred in refusing to charge the jury on the defense of assumption of risk. On this appeal, appellants renew their contention that the motions for judgment n.o.v. and a new trial should have been granted.

II

On this record the controlling issue is whether the trial court properly allowed the case to proceed to the jury on appellee's theory that appellants owed a duty to prevent harm to appellee from a known or obvious danger. We conclude that appellee's own testimony compels the conclusion that, as a matter of law, appellants were under no duty either to take precautions against or to warn of the isolated patch of ice on the parking lot.

The standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespassor, licensee, or invitee. See Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); Restatement (Second) of Torts §§ 328-343B (1965). The parties agree that appellee was an invitee on the day she was injured.

Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement, supra, §§ 341A, 343 & 343A. With respect to conditions on the land which are known to or discoverable by the possessor, the possessor is subject to liability only if he,

"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger."

Restatement, supra, § 343. Thus, as is made clear by section 343A of the Restatement,

"[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."

Restatement, supra, § 343A. See Atkins v. Urban Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 352-53, 414 A.2d 100, 104 (1980) ("the law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee"); Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 106-07, 266 A.2d 478, 480, 483 (1970) (same); Repyneck v. Tarantino, 415 Pa. 92, 95, 202 A.2d 105, 107 (1964) (same); Kubacki v. Citizens Water Co., 403 Pa. 472, 170 A.2d 349 (1961) (same). A danger is deemed to be "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment." Restatement, supra § 343A comment b. For a danger to be "known," it must "not only be known to exist, but ... also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated." Id. Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion. See Restatement, supra, § 328B comments c and d.

Appellee's own testimony showed not only that the existence of the ice was obvious to a reasonably attentive invitee, but also that appellee herself was aware of the ice and appreciated the risk of traversing it. Before alighting from her vehicle, appellee knew both that a sheet of ice lay next to the driver's side of the parking space which she had selected and that this condition presented a danger. She nevertheless proceeded across the ice, both when she emerged from her car and again on her return to the car. There was nothing presented on the record to indicate that, notwithstanding the obviousness of the danger, appellants should have anticipated that the patch of ice might go unnoticed by appellee or any other patient; on the contrary, appellants could reasonably expect that, in light of the number of clear, convenient spaces available, appellee and other invitees would recognize the danger posed by the ice and choose to park in another, ice-free space to avoid it. See Restatement, supra, § 343A comment g. ⁵

In light of appellee's uncontradicted testimony, it must be concluded that the danger posed by the isolated patch of ice was both obvious and known, and that appellants could have reasonably expected that the danger would be avoided. Thus, appellee failed to establish the element of duty essential to a prima facie case of negligence, and appellants were therefore entitled to a judgment notwithstanding the verdict. See Atkins v. Urban Redevelopment Auth. of Pittsburgh, supra (judgment n.o.v. proper where danger of missing step obvious to invitee); Knapp v. Bradford City, 432 Pa. 172, 247 A.2d 575 (1968) (judgment n.o.v. proper where plaintiff's own testimony indicated that danger was open and obvious).

III

Although appellee concedes that her testimony supports a determination that the danger was either known or obvious to her, Brief of Appellee at 10, she contends, and the Superior Court...