Corkery v. Greenberg, 50568

• Decision Date: 03 April 1962
• Docket Number: No. 50568,50568
• Citation: 114 N.W.2d 327,253 Iowa 846
• Parties: Lawrence CORKERY, Appellee, v. S. David GREENBERG; Albert R. Effress; Albert J. Greenberg, Marvin Borman and Wolrod Fiduciary, Inc., as Trustees for and on Behalf of The S. David Greenberg Trust; Albert J. Greenberg, Marvin Borman, and Wolrod Fiduciary, Inc., as Trustees for and on Behalf of the Leonora A. Greenberg Trust; Goldie E. Effress, Goldie E. Rossmann and Lillian E. Leafman, as Trustees for and on Behalf of the Creighton Elliot Effress Trust; and Goldie C. Effress, Goldie E. Rossmann and Lillian E. Leafman, as Trustees for and on Behalf of the Roxanne Effress Trust, doing business under the trade name of Daval Investment Co., Appellants.
• Court: Iowa Supreme Court

Page 327

114 N.W.2d 327

253 Iowa 846

Lawrence CORKERY, Appellee, v. S. David GREENBERG; Albert R. Effress; Albert J. Greenberg, Marvin Borman and Wolrod Fiduciary, Inc., as Trustees for and on Behalf of The S. David Greenberg Trust; Albert J. Greenberg, Marvin Borman, and Wolrod Fiduciary, Inc., as Trustees for and on Behalf of the Leonora A. Greenberg Trust; Goldie E. Effress, Goldie E. Rossmann and Lillian E. Leafman, as Trustees for and on Behalf of the Creighton Elliot Effress Trust; and Goldie C. Effress, Goldie E. Rossmann and Lillian E. Leafman, as Trustees for and on Behalf of the Roxanne Effress Trust, doing business under the trade name of Daval Investment Co., Appellants.

No. 50568.

Supreme Court of Iowa.

April 3, 1962.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellants.

Paul J. Yaneff, Sioux City, for appellee.

THORNTON, Justice.

Plaintiff brings this action to recover for injuries suffered in a fall in defendants' parking lot. The defendants appeal from the judgment entered on the jury verdict against them. They complain on two grounds. One, that the case should not have been submitted to the jury because plaintiff had knowledge of the condition of the parking lot of which he complained, and, two, that plaintiff's counsel improperly argued damages for pain and suffering and permanent disability could be computed on a per diem basis.

I. The first complaint requires a determination of whether the condition of the parking lot was obvious, reasonably apparent, and as well known to plaintiff in the exercise of reasonable care as it was to defendants as a matter of law. Plaintiff was 64 years old on the date of the accident, February 3, 1960. He was a janitor for Armour & Co., and had been so employed for 14 years. He started work at 6:00 a. m. on February 3, 1960. He left home for work about 5:00 a. m. He was driving a 1953 pickup. When he arrived at Armour & Co. he was unable to find a parking place on the street and then drove into defendants' parking lot adjacent to Armour & Co. He normally parked on the street, but when street parking was unavailable he used defendants' lot. When plaintiff drove into the lot there was no attendant on duty, no lighting facilities for the lot, and it was dark. When the attendant was on duty a 25cents charge was paid to him at the gate, when he was not the 25cents charge was paid by placing it in an envelope on which is written the license number of the car, and placing the envelope in a box similar to a mail box provided for the purpose. This pay box is not located at the entrance, but at a fountain some distance from the entrance, on a post about five feet high. The area around the box is not covered. Plaintiff was aware of the arrangement for paying. He had used the lot before, but not for a week or so. On this date plaintiff drove to a parking place within a rod or so of the box. After putting his license number on an envelope containing a quarter he started to the box using a flashlight. When he was within five feet of the box and about to put the envelope in it he slipped and fell and received serious injuries.

There is ample evidence the parking lot was covered with snow and ice, and cut up by frozen ruts of varying size. This condition existed in the vicinity of the pay box. There was no sand, salt or cinders used on the lot or in the vicinity of the box. Prior to the date of plaintiff's fall others had fallen on the lot. The condition had existed for some time, this and the prior falls were known to defendants. They of course knew there were no lighting facilities for the area and the only light provided was at the entrance when an attendant was on duty. The defendants kept the lot open on a 24 hour basis and expected patrons during hours of darkness.

II. Defendants do not contend they did anything to make the lot safe for walking or in any manner warned plaintiff. They rely on our recent cases, Corrigan v. Younker Brothers Inc., Iowa, 110 N.W.2d 246; Atherton v. Hoenig's Grocery, 249 Iowa 50, 86 N.W.2d 252; and Anderson v. Younker Brothers Inc., 249 Iowas 923, 89 N.W.2d 858. The duty of an occupier of lands is expressed in these three cases as follows: 'The duty owed by the inviter is to those, and to those only, who do not know, or, in the exercise of reasonable care, for their own safety, have no reasonable means of knowing, of defects or dangers.' He may avoid liability in two ways: by making and keeping his lands safe, or by warning of the dangers. Obviously, actual knowledge of defects and dangers is equivalent to, perhaps better than, a warning. At page 54 of 249 Iowa, page 255 of 86 N.W.2d, in the Atherton case we quote from Restatement, Torts, Vol. 2, section 343:

'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein; * * *.'

In addition to our cases cited above, defendants cite Nolan v. United States, 186 F.2d 578 (4th Cir. 1951); Hoffman v. The Kroger Company, 340 S.W.2D 152 (Mo. App., 1960); Wise v. Great Atlantic & Pacific Tea Company, 94 Ohio App. 320, 115 N.E.2D 33; Brooks v. Sears, Roebuck & Company, 302 Mass. 184, 19 N.E.2d 39; and Levine v. Hart Motors Inc., Ohio App., 143 N.E.2d 602. These are all parking lot cases wherein it was held plaintiff failed to make a case for the jury. All do not turn on the exact question here. In these and our cases cited by defendants we do not find a question of the plaintiff's ability to see, nor were the plaintiffs required by the nature of the transaction to go to a certain place. And there is no knowledge on the part of the defendants of prior falls due to the existing condition.

In Corrigan we again quote with approval from Stafford v. Gowing, 236 Iowa 171, 177, 18 N.W.2d 156, 159. 'The facts of each particular case of this kind are controlling on the question of negligence.'

Defendants contend plaintiff was fully aware of the condition from what was disclosed by his headlights as he drove in and in the vicinity of the box for the parking fee. That at that point plaintiff was at liberty to drive out of the lot and park elsewhere. That he was fully aware of the condition by use of his flashlight which he testified had a good strong beam as he left his pickup to walk to the box. And that the disclosure of the general condition, not the size and location of each rut, relieves the defendants from any further duty, citing Restatement, Torts, section 340, (1934).

Defendants base their claim of plaintiff's knowledge on his cross-examination, he then testified he saw snow, ice and ruts around the fountain where the pay box was located as disclosed by his headlights. When he got out of his truck, with aid of his flashlight, which he said had a good strong beam, he testified he saw ice, snow, ruts and footprints, and water on the ice. He saw there was no sand, salt or cinders on the ice as he walked to the pay box. He was holding the flashlight in front of him. Also there was testimony of those who came to assist plaintiff that they could see the condition as they walked up to him. However, this testimony does not constitute all of the testimony bearing on his knowledge. The claimed knowledge on cross-examination is subject to the limited illumination of headlights and a flashlight. The evidence also discloses he had no prior knowledge of the condition. What knowledge he had was gained in the short time it took him to drive in, park, and walk to the point of his fall. The rut he stepped in causing his fall was not plainly visible to him nor was the condition of the ice and snow on his way to the pay box. The ice and snow was not in its natural state. It was cut up with ruts and footprints. His testimony shows limited knowledge at most. In our three cases cited by defendants on the question of knowledge we find in the Atherton case the plaintiff had observed the defective condition of the step on previous occasions, she had been going to the store 'six months or a year or maybe several years.' She testified, 'It always looked treacherous * * *. I would say that it looked each and every time I would go in and out like it was a bad step.' In the Anderson case the absence of handrails and a 14 inch drop on the ends of the steps were claimed as negligence. The plaintiff had used the steps before and the condition was plainly visible. In the Corrigan case the plaintiff fell over a step to a temporary stage that was in plain view. Plaintiff was looking in another direction. In these cases the condition complained of was in plain view and in Atherton and Anderson the plaintiffs had prior knowledge of the defect claimed. No question of illumination was involved and by the nature of the transactions the plaintiffs were not required to go to a certain place for payment as here. In these three cases there was nothing present to alert the defendants the existing condition involved unreasonable risk to the plaintiffs, and one they had no reason to believe the plaintiffs would not discover. The plaintiffs did, or in the exercise of reasonable care should have discovered the condition of which they complained.

In this case the facts are not that clear. Defendants were operating a 24 hour a day parking lot without lights, they expected and invited patrons during hours of darkness, they knew of the condition and prior falls. Reasonable minds could properly differ on whether the defendants should realize the condition involved unreasonable risk to patrons, they had reason to believe patrons would discover the condition or realize the risk involved therein, and whether plaintiff did in fact or should have in the exercise of...