DeHeer v. Seattle Post-Intelligencer, POST-INTELLIGENCER

• Citation: 60 Wn.2d 122,372 P.2d 193
• Decision Date: 14 June 1962
• Docket Number: POST-INTELLIGENCER,No. 36009,36009
• Parties: Cornelis DeHEER and Elsie M. DeHeer, husband and wife, Appellants, v. The SEATTLE, a corporation, and Home Builders' Association of Greater Seattle, Respondents.
• Court: United States State Supreme Court of Washington

Page 122

60 Wn.2d 122

372 P.2d 193

Cornelis DeHEER and Elsie M. DeHeer, husband and wife, Appellants, v. The SEATTLE POST-INTELLIGENCER, a corporation, and Home

Builders' Association of Greater Seattle, Respondents.

No. 36009.

Supreme Court of Washington, Department 1.

June 14, 1962.

Durham & Guimont, Seattle, for appellants.

Clarke, Clarke, Albertson & Bovingdon, Seattle, for respondents.

ROSELLINI, Judge.

In this case the plaintiff wife, who will be referred to herein as the plaintiff, a patron of the Home Show conducted by the defendants at the National Guard Amory, Seattle, fell and was injured as she was descending a flight of stairs on her way out of the building. This was one of two flights of stairs which patrons were invited to use and which were the main exits from the display room.

The plaintiff and her companions had observed that the floor and stairs were littered with debris dropped by other patrons, and that a janitor was in the process of sweeping the stairs. The plaintiff's daughter called her attention to the litter on the floor and cautioned her to be careful. It was the plaintiff's testimony that she did descend slowly and carefully, but that as she rounded a turn in the stairs, it was necessary for her to take her hand off the handrail because it was out of reach, and at that point she slipped on a piece of paper and fell.

The cause was tried to a jury, which returned a verdict for the plaintiff. A motion for judgment notwithstanding the verdict was granted, the court holding that, as a matter of law, the plaintiff had assumed the risk of injury. In appealing from that judgment, the plaintiff draws our attention to the well-established rule that in ruling on a motion for judgment n. o. v., the trial court must give to the prevailing party the benefit of all evidence and reasonable inferences from evidence favorable to his cause.

It is not disputed that the plaintiff was a business invitee. She had purchased a ticket to the show and had a contractual right to be upon the premises. In this jurisdiction, it is the duty of a proprietor to exercise reasonable care to maintain in a safe condition such portions of his premises as he invites the public to use for the purposes of the owner's or proprietor's business therein. Buttnick v. J. & M., Inc., 186 Wash. 658, 59 P.2d 750.

In the cited case, the plaintiff, a patron of a restaurant, fell on a stairway leading from the restaurant to a street. The evidence showed that while the stairway was not a main entrance, it was customarily used by patrons, as well as by employees of the restaurant. We held that it was for the jury to determine whether the proprietor had exercised reasonable care to maintain the premises in a safe condition for its patrons and further said:

'On the issue of contributory negligence, the evidence was that the appellant had proceeded through the door and down the stairway in the ordinary manner followed by customers. Whether he saw, or in the exercise of reasonable care should have seen, the fatty substance on the stairway, and whether the care used by him in stepping down was, under the circumstances, the exercise of reasonable care, were also questions of fact for the jury to determine.'

The case is very similar to the present case. In this case, there is the added fact that the plaintiff had attended previous home shows and knew that patrons habitually dropped debris on the floor, and knew that there was bebris on the stairway. For these reasons, the defendants say, she assumed the risk of falling and injuring herself.

Upon the question of voluntary exposure to risk as a defense, 4 Restatement, Torts, 491, § 893, states the rule as follows:

'A person who knows that another has created a danger or is doing a dangerous act or that the land or chattels of another are dangerous, and who nevertheless chooses to enter upon or to remain within or permit his things to remain within the area of risk is not entitled to recover for harm unintentionally caused to him or his things by the other's conduct or by the condition of the premises, except where the other's conduct constitutes a breach of duty to him or to a third person and has created a situation in which it is reasonably necessary...