Chernov v. St. Luke's Hospital Medical Center, 14449

• Decision Date: 27 September 1979
• Docket Number: No. 14449,14449
• Citation: 123 Ariz. 521,601 P.2d 284
• Parties: Henry CHERNOV and Minnie Chernov, his wife, Appellants, v. ST. LUKE'S HOSPITAL MEDICAL CENTER, an Arizona Corporation, Appellee.
• Court: Arizona Supreme Court

Page 284

601 P.2d 284

123 Ariz. 521

Henry CHERNOV and Minnie Chernov, his wife, Appellants, v. ST. LUKE'S HOSPITAL MEDICAL CENTER, an Arizona Corporation, Appellee.

No. 14449.

Supreme Court of Arizona, In Banc.

Sept. 27, 1979.

Leibsohn, Eaton, Gooding & Romley by Jeffrey M. Proper, Marilyn A. Pollard, Phoenix, for appellants.

Burch, Cracchiolo, Levie, Guyer & Weyl by Michael E. Bradford, Phoenix, for appellee.

STRUCKMEYER, Vice Chief Justice.

This is an appeal by Henry Chernov from a summary judgment entered in favor of St. Luke's Hospital Medical Center on his complaint charging that it negligently maintained its parking lot. We accepted jurisdiction pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. Reversed.

On May 12, 1975, Chernov drove to St. Luke's Hospital to visit his wife, who was a patient there. He entered the hospital grounds traveling in a southerly direction and approached a "T" intersection in its parking lot. Chernov was traveling up the shaft of the "T", while a woman, Mary Arena, was driving a motor vehicle across the top of the "T" from right to left. He came to a stop in response to a traffic control signal "STOP" painted on the roadway in the lane and direction he was traveling. At approximately the same time, Mary Arena approached the intersection from the west. Chernov entered the intersection, turning left, when his vehicle was struck by the vehicle driven by Mary Arena.

Appellant in his suit alleged that:

" * * * St. Luke's Hospital Medical Center negligently maintained the parking lot in such a manner that the traffic control devices were not sufficiently visible to * * * Arena and as a result thereof, the * * * collision occurred."

The Superior Court granted the hospital's motion for summary judgment and this appeal followed.

We have said before that negligence cases can rarely be disposed of by summary judgment, Boozer v. Arizona Country Club, 102 Ariz. 544, 434 P.2d 630 (1967), because:

"In order for the entry of summary judgment to be appropriate there must be no genuine dispute as to any material fact and only one inference can be drawn from the undisputed material facts, and based on the undisputed material facts the moving party is entitled to judgment as a matter of law." Lundy v. Prescott Valley, Inc., 110 Ariz. 362, 364, 519 P.2d 61, 63 (1974).

Here, an inference can be drawn favorable to Chernov.

The parties agree that Chernov was a business invitee. But the hospital argues that its duty to invitees using its parking lot is set forth in § 343 of the Restatement (Second) of Torts, and that it is subject to liability for a condition on the land only if it "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 invitees, and should expect that they will not discover or realize the danger * * *." It urges that since the intersection was unobstructed and obvious, either the negligence of appellant or Mrs. Arena was the cause of the accident, and, hence, appellant cannot recover from the hospital as a matter of law.

However, the hospital's duty to Chernov is not governed by § 343, but, rather, is as set forth in § 344 of the Restatement (Second) of Torts. Section 344 provides "A possessor of land who holds it open to the public for entry for his business purpose is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons * * *, and by the failure of the possessor to exercise reasonable care to

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

The Court of Appeals for the District of Columbia, citing § 344, said this concerning those in control of parking lots:

"A parking lot operator, like other possessors of business premises, though not an insurer of the safety of his customers, does owe them a duty of reasonable care. Liability for injuries may be predicated upon a breach of this duty in regard either to his own activities or those of a third person on the premises. For the operator's obligation is to exercise prudent care, not only in his own pursuits but also to...