Carter v. Davis

• Decision Date: 03 August 1964
• Docket Number: No. 7432,7432
• Citation: 394 P.2d 594,74 N.M. 443,1964 NMSC 189
• Parties: Anita O. CARTER and Gilbert Carter, Plaintiffs-Appellants, v. LeRoy DAVIS and Mary Davis, d/b/a La Loma Motel, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 594

394 P.2d 594

74 N.M. 443

Anita O. CARTER and Gilbert Carter, Plaintiffs-Appellants, v. LeRoy DAVIS and Mary Davis, d/b/a La Loma Motel,

Defendants-Appellees.

No. 7432.

Supreme Court of New Mexico.

Aug. 3, 1964.

Arturo G. Ortega, Willard F. Kitts, Albuquerque, for appellants.

Modrall, Seymour, Sperling, Roehl & Harris, Allen C. Dewey, Jr., Albuquerque, for appellees.

C. C. McCULLOH, District Judge.

Plaintiffs appeal from a summary judgment in favor of defendants. The case is one where the plaintiff slipped and fell on snow in front of defendants' motel office.

The defendants were the operators of La Loma Motel in Las Vegas, New Mexico. The plaintiff, Anita Carter, checked into the motel as a guest late in the afternoon of December 12, 1960, while driving alone from Colorado to El Paso, Texas. Snow had been falling in Las Vegas in the hours or days prior to plaintiff's arrival and continued to fall on the morning of the accident. Defendant, Mary Davis, had swept the area clean immediately in front of the motel office twice before 8:00 A.M., on December 13th. This area was paved and at the time of the accident, was covered with less snow than the surrounding area of the motel premises which had not been cleared.

Early in the morning of December 13th, plaintiff stopped by the motel office on her way to breakfast at a restaurant across the street. Defendant, Mary Davis, cautioned plaintiff about crossing the street which was covered with snow and particularly with reference to using the inclined driveway.

Defendants left about 8:30 A.M., to go to Santa Fe, and left the office in charge of a niece with instructions to keep the area in front of the office swept. Plaintiff returned from breakfast about 8:30 A.M., and about 9:30 A.M. she went from her room to the office to inquire about the road conditions. As she stepped out of the office, a distance of two to six feet, she slipped and fell in the area previously swept by defendant. Plaintiff stated the snow which had fallen between 8:30 and 9:30 A.M., was about a quarter of an inch in depth in the area of the fall and was still falling at the time she fell. A disinterested witness who saw the accident from across the street and came to assist her stated the depth of snow in the area of the fall was about an inch deep, possibly a little more or less. Both agreed the snow was not as deep in the previously swept area where the fall occurred as it was in the surrounding area of the premises. The defendant, Mary Davis, stated the area in front of the office was clear of snow when she left at about 8:30 A.M., and was likewise clear of snow when she returned from Santa Fe about 3:30 P.M.

No one saw any ice in the area of the fall, although plaintiff claimed she slipped as though on a patch of ice under the snow. There were no obstructions or defects in the pavement, which was level in front of the office except for a very slight decline toward the street.

Thus we have the question of whether defendants were free from negligence as a matter of law, and whether the dangerous condition caused by natural elements was equally apparent to the plaintiff as to all others.

Counsel agree that the two principal fact issues concern the weather conditions and the condition of the site of the fall at the time of and immediately prior thereto. We fail to find any substantial conflict in the evidence concerning weather conditions on the morning when the fall occurred. The plaintiff recalled that it was snowing off and on and believed it was still snowing when she fall. Whether the snow was one fourth inch or...