Chevraux v. Nahas

• Decision Date: 04 April 1967
• Docket Number: No. 52460,52460
• Parties: Lillian CHEVRAUX, Appellee, v. Edward J. NAHAS, Natalie Nahas and W. J. Friar, d/b/a Commodore Hotel and 3440 Grand Corporation, Appellants.
• Court: Iowa Supreme Court

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150 N.W.2d 78 260 Iowa 817 Lillian CHEVRAUX, Appellee,
v.
Edward J. NAHAS, Natalie Nahas and W. J. Friar, d/b/a Commodore Hotel and 3440 Grand Corporation, Appellants. No. 52460. Supreme Court of Iowa. April 4, 1967.
Rehearing Denied June 6, 1967.

[260 Iowa 819] Hansen, Wheatcraft & McClintock, Des Moines, for appellants.

Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, for appellee.

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RAWLINGS, Justice.

Plaintiff brought an action at law to recover for personal injuries alleged to have resulted from a fall as she was leaving the Commodore Hotel in Des Moines.

Trial to a jury resulted in judgment on verdict for plaintiff, and defendants appeal. We reverse.

This hotel, located on Grand Avenue, faces in a northerly direction.

There is a circular paved driveway in the front. A cement sidewalk, about 60 feet in length and ten feet side, extends from this driveway to steps leading up to the main entrance.

The walk area immediately in front of the entryway had sunk, causing water to accumulate there when it rained and to be covered with ice in the winter. Repairs were deemed necessary.

A new cement slab the width of the sidewalk and extending out about 15 feet from the lowest entrance step was then built. This was completed about August 13, 1965.

As constructed it was four inches higher than the remaining or northerly 45 feet of the sidewalk. A two inch strip of yellow paint was immediately applied to the front surface edge of the new slab.

Because plaintiff's Exhibit 9 probably discloses the situation as it existed more clearly than could the oral testimony of any witnesses, it is here reproduced.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[260 Iowa 820] About 5:00 the afternoon of August 21, 1965, plaintiff and two other women went to the restaurant located in the hotel basement to eat. Approximately one hour later

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they called for a taxicab and started to leave.

Plaintiff walked down the two exterior steps located near the front door, across the newly placed cement slab, and fell upon reaching the front or north edge. She contends the fall and her resulting injuries were the result of negligence on the part of [260 Iowa 821] defendants in failing to keep their premises in a reasonably safe condition, and failure to give appropriate warning. The slab was then clean, clear and free from debris of any kind.

Defendants made timely motions during trial for a directed verdict, and later moved for judgment notwithstanding the verdict.

In so doing they contended plaintiff had failed to plead and prove any negligence upon which there could be recovery.

The sole issue presented on this appeal is whether defendants were entitled to a directed verdict.

In considering this problem we construe all evidence presented in the light most favorable to plaintiff. Rule 344(f)(2), as amended.

I. It is axiomatic that in cases of this nature the facts peculiar to each are unavoidably controlling as to the matter of negligence.

On the other hand, there are often some similarities to be found in prior cases which may serve as helpful precedents.

Plaintiff had resided in Des Moines about one month before her fall.

She previously lived in a big two story house. While there she fell and broke her hip, but it had healed and she was able to walk very well. Going up and down stairs proved to be somewhat difficult but she managed, and, in fact, used the stairway in her home many times each day.

Plaintiff's age is not disclosed. However she is apparently an elderly person and at the time here concerned was using a cane.

She and her two companions entered and left the hotel through the main or front door. This means they stepped onto and walked over the cement slab going in, and again crossed it on leaving.

When these ladies left it was still daylight. The day was not bright, being rather dusky, but as a witness for plaintiff stated the lights were not on because it wasn't necessary; it wasn't late enough.

By way of exclusion we are not here confronted with a situation involving concealed or unlighted hazards as in Corkery [260 Iowa 822] v. Greenberg, 253 Iowa 846, 850--852, 114 N.W.2d 327, or LaSell v. Tri-States Theatre Corporation, 233 Iowa 929, 942--949, 11 N.W.2d 36.

Neither is there any evidence disclosing a distraction as in Warner v. Hansen, 251 Iowa 685, 690--694, 102 N.W.2d 140.

On the other hand constructive notice to defendants of the difference in level between the old walk and new slab is not involved. They had not only directed but in fact instructed their own employees in the construction of the new elevated sidewalk entrance area. See Bartels v. Cair-Dem, Inc., 255 Iowa 834, 840--841, 124 N.W.2d 514.

Furthermore defendants do not challenge the status of plaintiff. She was a business invitee. Hanson v. Town & Country Shopping Center, Inc., Iowa, 144 N.W.2d 870, 873.

II. This court has been repeatedly called upon to consider and determine the duty, obligation and extent of liability on the part of an owner or occupant of land to a business invitee. Two of our more recent cases in this area are Meader v. Paetz Grocery Co., Iowa, 147 N.W.2d 211, and Hanson v. Town & Country Shopping Center, Inc., supra.

We there made it clear an owner or occupant of real estate must exercise reasonable care to keep his property reasonably safe for invitees. However, this does not

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mean the standard of care to be exercised requires the premises be so free from defects as to guarantee the safety of all such visitors or users.

And, in both of these last cited cases, there was reference, with apparent approval, to the following pronouncements in Restatement, Second, Torts:

Section 343 provides: 'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but 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 invitees, and

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

[260 Iowa 823] '(c) fails to exercise reasonable care to protect them against the danger.'

And section 343A states in part as follows: '(1) 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.'

Comment (b) under this section provides: 'The word 'known' denotes not only knowledge of the existence of the condition * * *, but also appreciation of the danger it involves. Thus the condition * * * must...