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

Page 78

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.

Hansen, Wheatcraft & McClintock, Des Moines, for appellants.

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

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

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 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 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 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 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

'(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 not only be known to exist, but it must also be recognized * * *. 'Obvious' means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.'

In connection with the foregoing we said in Hanson v. Town & Country Shopping Center, Inc., supra, loc. cit., 144 N.W.2d 874: 'Defects in premises which are in no sense hidden and could only be classified objectively as open and obvious, may be of such nature that the possessor should know the invitee would not anticipate or guard against them in using the premises within the scope of the invitation.'

Then in Meader v. Paetz Grocery Co., supra, loc. cit., 147 N.W.2d 215--216, touching upon the same subject matter this court stated: 'While, then, an open or obvious defect might be the equivalent of a trap or pitfall simply because the possessor should know that the invitee would have no reason to anticipate it and appreciate the hazard created by the condition so as to guard against it, where the possessor has every reason to know the invitee, as a reasonably prudent person, would anticipate and appreciate the hazard, there is no liability if the invitee disregards it.'

This then means, if an existing condition on the property of an inviter is obvious, that is if both the condition and attendant risk are open, visible and apparent and would be recognized by a reasonable person in the position of an invitee, then the former would not be liable to the latter for physical harm caused him by the condition of the visited premises.

Actually the basic problem to be resolved is whether defendants breached any duty owing to plaintiff.

The test is reasonableness of conduct on the part of defendants in the placement of the cement slab, with a riser of four inches, as a part of the sidewalk approach to their hotel.

III. Of course, the mere fact plaintiff fell and was injured is not in itself sufficient to establish, nor does it create a presumption, defendants were negligent. See Pinckney v. Watkinson, 254 Iowa 144, 149, 116 N.W.2d 258, and Buchanan v. Hurd Creamery Co., 215 Iowa 415, 420--421, 246 N.W. 41.

Under appropriate circumstances different levels in approaches to business establishments, including hotels, are common, ordinary, and often to be expected.

The variance in elevation of four inches between the cement slab at the entrance to the Commodore and adjacent sidewalk where plaintiff fell cannot, under the circumstances disclosed, be said to have been hidden or to have presented an unrecognizable hazard for any person using it in broad daylight, keeping a reasonable watch where walking, with no apparent inviter created distractions. These views find ample support in Corrigan v. Younker Brothers, Inc., 252 Iowa 1169, 1173--1175, 110 N.W.2d 246; Warner v. Hansen, 251 Iowa 685, 689--690, 102 N.W.2d 140; Anderson v. Younker Brothers, Inc., 249 Iowa 923, 926--929, 89 N.W.2d 858; J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639, 641--642; Anderson v. Sears, Roebuck & Co., 223 Minn. 1, 26 N.W.2d 355, 357--358; Cates v. Evans, Mo.App., 142 S.W.2d 654, 657; Gorman v. World Publishing Co., 178 Neb. 838, 135 N.W.2d 868, 870; Reed v. First National Bank of Wagoner, Okl., 405 P.2d 10, 12--13; ...