Christianson v. Kramer

• Decision Date: 11 June 1963
• Docket Number: No. 50896,50896
• Citation: 255 Iowa 239,122 N.W.2d 283
• Parties: Harold CHRISTIANSON, Appellant, v. Donald KRAMER, d/b/a Kramer Shoe Repair Shop, Arthur A. Neu, Executor of the Estate of Adda Beverly, Appellees.
• Court: Iowa Supreme Court

Page 283

122 N.W.2d 283

255 Iowa 239

Harold CHRISTIANSON, Appellant, v. Donald KRAMER, d/b/a Kramer Shoe Repair Shop, Arthur A. Neu, Executor of the Estate of Adda Beverly, Appellees.

No. 50896.

Supreme Court of Iowa.

June 11, 1963.

Wunschel & Schechtman, Carroll, for appellant.

Vincent F. Powers, Omaha, Neb., and Leighton A. Wederath, Carroll, for appellee Donald Kramer, d/b/a Kramer Shoe Repair Shop.

Floyd E. Page, Denison, and Edward S. White, Carroll, for appellee Arthur A. Neu, executor of the estate of Adda Beverly.

LARSON, Justice.

Defendants' motions for directed verdict, which were sustained, challenged the sufficiency of the evidence of defendants' negligence, of proximate cause, and of plaintiff's freedom from contributory negligence. We think the case should have been submitted to the jury. Our review of the evidence, of course, must be made in the light most favorable to plaintiff.

On January 6, 1960, at about 10 A.M. the plaintiff, 26 years of age, purchased two cups of coffee at a tavern a half block from the stairs leading to the basement shoe shop of the defendant Kramer, and proceeded to carry them, one in each hand, to that shop. As he went down the steps, he slipped and fell, severely injuring his wrist when a broken cup pierced it. The weather that day was cool, but the sun was shining. Five days before, there had been a two-inch snowfall and, since the temperature from January 1 to January 6 had ranged from 17 below zero to 35 degrees above, the latter being reached on January 6, there was still over two and one-half inches of snow on the ground on that date. The streets and sidewalks, however, were clear.

The two-story building involved herein, known as the Commercial Bank Building, in Carroll, Iowa, was owned by the estate of Adda Beverly. Arthur A. Neu, executor, was named a defendant herein and will be referred to as defendant owner. Along the east side of this building appear several stair wells guarded by iron railings, each leading to basement business establishments. The defendant Kramer, a tenant, maintained one of these shops. In order to reach it, one must go down two steps from the sidewalk, turn left, and go down eight steps some four feet wide to the doorway leading to Kramer's Shoe Shop. On the east or outside wall of the stair well was a hand rail, and on the inside about half way down was a window to admit light into the shop.

The record discloses there is a ledge on the second story of this building extending out over these stair wells about a foot wide, which extends the length of the building. There are no eave troughs or canopies over the stair wells, so that when any ice and snow accumulated on the roof and ledge and started to melt, water drips onto the steps below. If it is sufficiently cold, the water in the stair well will freeze creating a hazard to anyone attempting to descend or transcend the stairs.

It is plaintiff's contention that he produced substantial evidence to prove the hazardous condition as it existed on January 6, 1960, when he fell, that it was known or in the exercise of due care should have been known to both the owner and the tenant, and that although he exercised ordinary care, he was unaware of the danger or hazard at the time of his fall. Defendants contend the evidence was insufficient to establish any of these allegations and that their negligence if any, was not the proximate cause of plaintiff's injury.

I. The law as applied to such matters seems well settled. The owner and possessor of real estate is not an insurer of invitees who came upon his property nor does the mere fact that an accident happened, of itself, create liability. The inviter's duty is to the reasonable care to keep the property in a reasonably safe condition for the contemplated use. Chenoweth v. Flynn, 251 Iowa 11, 15, 99 N.W.2d 310, 311, and citations. It is often stated this duty applies only to defects or conditions which are in the nature of dangers, traps, snares, pitfalls, and the like, which are not obvious or known to the invitee but which are or in the exercise of reasonable care should be known to the possessor or owner. This rule was fully considered by us in Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, where numerous authorities were reviewed. The rule, of course, is predicated upon an owner's superior knowledge of the danger. 38 Am.Jur., Negligence, § 97, pages 757 and 758. Also see Restatement, Torts, Vol. 2, § 343. While superior knowledge of the owner or occupier, of defects or dangers is not presumed, where the evidence shows such knowledge could have been obtained in the exercise of reasonable care, superior knowledge may be inferred. Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 277, 106 N.W.2d 579.

II. There is evidence in this record which would sustain a finding that plaintiff was an invitee. In fact, there seems to be little dispute on this question. In addition to his trip to the shoe shop with coffee on this morning, plaintiff testified he went there to ask defendant Kramer whether he could repair a split in an overshoe he had salvaged from the discard at Penney's store a few days before. A finding by the jury that he was at the time of the accident a business visitor would clearly be justified.

III. The evidence, we think, would also sustain a finding that both the defendant owner and the defendant tenant knew or should have known there was danger at that time and place to invitees or others using the stairway. Plaintiff testified Kramer told him they had experienced trouble from ice forming from drippings off the ledge above this stair well, and that a couple of years before a woman had fallen there. Kramer's employee, Louis Hoffman, testifying for plaintiff, said it was his duty to keep these steps clear of ice and snow. He said he usually cleaned them each morning soon after he came to work, but that on this morning, since it hadn't snowed that night, he didn't look for ice. He testified: 'I don't know if the steps were free from ice and snow that morning because I never paid any attention to it. I observed the steps leading to the Kramer Shoe Shop * * * after the accident happened and as far as I could see there were just a couple of little bunches of ice right by the wall.' (Emphasis supplied.) But he also said: 'In the past we had had problems with ice forming on the steps all the time. After I cleaned the snow and ice off, I still continued to have problems from dripping of the ledge. The ledge I'm referring to is on the building, roof ledge, or whatever you call it. * * * The water would drip from the roof onto the steps and that's the water that formed the ice. On other days except that day, I had used salt.' There was other evidence these steps had been cleaned and salted the day before.

Since reasonable minds may well differ on this issue, it is a question especially appropriate for the jury. It also appears that Kramer had, by arrangement with the defendant owner undertaken to keep these steps clean and clear, raising a permissible inference that the defendant owners were aware of the potential danger. Up until this time the tenant had done well because, as plaintiff, observed, the steps had always been clean when he used them in the past. Under this evidence there can be little doubt that both defendants knew of the potential danger when the weather was such as to permit thawing on the ledge and freezing in the stair well, especially when there was an accumulation of snow on the ledge above. Such were the conditions on this day.

Defendants contend, however, there was an insufficient showing that the ice was on the steps for a period long enough to charge them with notice thereof. It is true in certain potential danger cases there is some conflict of authority, but the better rule would seem to require the inviter to take prompt steps to prevent the occurrence of the hazard or to adequately warn invitees of the potential danger inviter knew existed. No warning was given and, since it was defendants' duty to use ordinary care to warn plaintiff of any danger which defendants knew and of which plaintiff was not aware, the jury could find defendants negligent therein. Stafford v. Gowing, 236 Iowa 171, 177, 18 N.W.2d 156, 158.

Clearly this is not the case where one is given a reasonable time to remove the ice or snow formed by recent storms such as we discussed in Reuter v. Iowa Trust & Savings Bank, 244 Iowa 939, 57 N.W.2d 225. Delayed action here could not be justified as impracticable or inexpedient.

It is well established that 'negligence' is want of ordinary care under the circumstances, and that 'ordinary care' means such care as an ordinarily prudent person would exercise. Nesci v. Willey, 247 Iowa 621, 631, 75 N.W.2d 257, and citations. Under the circumstances disclosed by this record, giving that evidence the strongest inferences reasonably deducible therefrom (White v. Center, 218 Iowa 1027, 254 N.W. 90), the jury could find defendants did not exercise ordinary care. No canopy was erected, so that ordinary care would seem to require a warning or continuous salting at such times to protect invitees.

We have reviewed the cases cited from other jurisdictions relating to gum on stairways and banana pealings or other slippery substances that could be expected in certain business establishments, and conclude that where the factors are evident and there is a great probability that a dangerous condition will develop, the inviter's burden in discharging his duty to exercise reasonable care is a heavy one. While those cases are not exactly in point here, we think the better rule in matters such as ours, where minds of reasonable men might differ, the question as to whether one has performed that duty should be left to the jury. McGrean v. Bos Freight Lines, 240 Iowa 318, 323, 36 N.W.2d 374, 377; Mahoney v. J. C. Penney Co. (New Mexico, 1962), 71 N.M. 244, 377 P.2d 663; Presnell v....