Demko v. H & H Inv. Co., 35322

• Decision Date: 19 August 1975
• Docket Number: No. 35322,35322
• Citation: 527 S.W.2d 382
• Parties: Myldred W. DEMKO, Plaintiff-Appellant, v. H&H INVESTMENT COMPANY et al., Defendants-Respondents. . Louis District, En Banc
• Court: Missouri Court of Appeals

Page 382

527 S.W.2d 382

Myldred W. DEMKO, Plaintiff-Appellant, v. H&H INVESTMENT COMPANY et al., Defendants-Respondents.

No. 35322.

Missouri Court of Appeals, St. Louis District, En Banc.

Aug. 19, 1975.

Motion for Rehearing or Transfer Denied Oct. 22, 1975.

Application to Transfer Denied Dec. 8, 1975.

Charles J. McMillin, Laura Andreas, St. Louis, for plaintiff-appellant.

Amelung, Wulff & Willenbrock, James J. Amelung, Gray, Friedman & Ritter, Charles E. Gray, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John J. Horgan, St. Louis, for defendants-respondents.

McMILLIAN, Judge.

Appellant, plaintiff in an action for personal injuries suffered in a fall on snow and ice slick pavement, seeks review of a jury verdict and judgment in favor of defendants. We affirm.

Plaintiff's petition sought damages for injuries she sustained in a fall in a parking area adjacent to a restaurant and motel in Columbia, Missouri. Plaintiff alleged the same acts of negligence against each of the defendants, but her theory of liability for each defendant was separately based on control of the area in which she had fallen. Specifically, she claimed that H&H and the Halls had possession and control of the parking lot area; that Bischof and Connie's had control of the means of ingress and egress from the restaurant to the parking area; and that Rodeway either had control or shared control of the parking lot with the other defendants.

Evidence was introduced at trial showing that the unimproved real property in question belonged to the Halls, and that the Halls had leased the property to H&H which constructed the restaurant and motel. H&H operated the motel, but leased the restaurant to Bischof, which, in turn, subleased to Connie's. Rodeway's connection with the other defendants is more tenuous. Evidence showed that initially Rodeway had entered into a license agreement with H&H to provide management services to H&H for the motel, but not to guests of the motel. There was also evidence that a Rodeway sign was located at the entrance of the parking lot (the motel was described by another sign as a Best Western Motel) and that city license records showed that Rodeway was authorized to do business in the city at the time of plaintiff's accident. At that time, however, Rodeway had no relationship of any kind with H&H or the motel.

The accident in question occurred as plaintiff was leaving the restaurant operated by Connie's and returning to her car. She testified that she slipped and fell on packed snow and ice as she stepped off the curb of a raised sidewalk onto the parking lot. Evidence was introduced tending to show that the restaurant's rain guttering and downspout system would have flooded the sidewalk in the vicinity of plaintiff's fall, and that snow had fallen in the Columbia area two days prior to the accident. Plaintiff also testified that she had not seen any snow or ice on the sidewalk or curb area when she entered the restaurant.

Defendants Bischof and Connie's contend that none of plaintiff's points of error should be considered because she failed to make a submissible case as to them and, therefore, any instructional errors were inconsequential. Watterson v. Portas, 466 S.W.2d 129 (Mo.App.1971) and Bafaro v. Pezzani, 376 S.W.2d 631 (Mo.App.1964). We agree that there was no submissible issue as to Bischof but disagree as to Connie's.

This case does not involve an injury on property abutting a public street or sidewalk, ¹ nor was there a 'special use' ² or an 'affirmative act.' ³. This is a parking lot case and the liability, if any, is based on a merchant's duty to invitees to provide a reasonably safe means of ingress and egress, Cannon v. S. S. Kresge, 233 Mo.App. 173, 116 S.W.2d 559 (1938). The duty is a duty to exercise ordinary care to keep its premises reasonably safe and to warn of any danger which is actually or constructively known to it and which invitees would not discover. Gilpin v. Gerbes Supermarket, Inc.,446 S.W.2d 615 (Mo.1969) citing Restatement, Torts 2d, § 343. 'The basis for liability in this type of case is a knowledge of the storekeeper of an unsafe condition or of a danger to a shopper, superior to that of the invitee. . . .' Gilpin v. Gerbes Supermarket, Inc., supra, at p. 618, quoting Brown v. Kroger Co., 344 S.W.2d 80, 83 (Mo.1961) and Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104 (Mo.1973). Furthermore, such liability cannot be avoided by contracting with others to maintain the entrance and exit areas. Cannon v. S. S. Kresge Company, supra. Theefore, it follows logically that the duty is owed by the 'owner or possessor' or 'occupant' of the land. Cunningham v. Bellerive Hotel, Inc., supra; Gilpin v. Gerbes Supermarket, Inc., supra; Potter v. Zorensky, 508 S.W.2d 21 (Mo.App.1974); Willis v. Rivermines I.G A. Supermarket, 350 S.W.2d 437 (Mo.App.1974); Restatement, Torts 2d, § 343, Annot., 38 ALR3d 23.

Connie's was the occupant or possessor of the land. Bischof merely leased the land from H&H Investment Co. and subleased it to Connie's. The fact that Bischof had contracted with H&H to maintain the leased premises is immaterial to the liability in this suit. Rather, the determinative factor is that Connie's could have had the superior knowledge which precedes both duty and liability. Bischof could not. Bischof had a contractual obligation to H&H but no duty to patrons of Connie's. Therefore, Bischof was entitled to a directed verdict as a matter of law; there was not a submissible case as to Bischof.

Despite the duty that Connie's owed to its patrons, the case would not have been submissible as to Connie's if Connie's could have shown as a matter of law either that there was no actionable negligence or that plaintiff was guilty of contributory negligence. Here, there was ice on the parking lot, so Connie's affirmative duty to make safe or warn was properly in issue. Also, there was no evidence on the 'obviousness' of the danger sufficient to remove the contributory negligence issue from the case. Reasonableness is a jury question. Dean v. Safeway Stores, 300 S.W.2d 431 (Mo.1957); Abel v. Campbell 66 Express, Inc., 378 S.W.2d 269 (Mo.App.1964); Willis v. Rivermines I.G.A. Supermarket, supra. Since Connie's did have a duty and was not entitled to a directed verdict as a matter of law, plaintiff did make a submissible case as to Connie's.

Plaintiff's major allegations of error concern the instructions given the jury by the trial judge. First, she argues that defendants' converse instructions were defective because they did not contain 'substantially the same language' of her verdict directors. MAI 33.01.

Pliantiff gave separate verdict directing instructions for each defendant and each instruction required a finding that 'defendant failed to use ordinary care.' Defendants H&H, Bischof and Connie's, on the other hand, gave identical converse instructions, each of which required a verdict for that defendant unless the jury found the defendant 'negligent.' Plaintiff's verdict director defined 'ordinary care' as that 'degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.' Defendants' converse instruction defined 'negligence' as 'the failure to use 'ordinary care' which means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.'

MAI 33.01 requires a converse instruction to contain substantially the same language as the verdict directing instruction in order to prevent a jury from returning a verdict based on its interpretation of a term of law which neither appears in the verdict director nor is defined. Brewer v. Swift & Company, 451 S.W.2d 131, 133 (Mo. banc 1970). That danger is not present in this case. Whatever the semantic differences in the instructions given the jury, all instructions in question here included definitions of 'ordinary care' and 'negligence' which used identical language. Thus we cannot say, as the court said in Brewer, that the jury was given a roving commission to substitute its own notion of the proper interpretation of a term of law.

The question remains, however, whether the failure of defendants to use 'substantially the same language' in their converse instructions constituted reversible error. We think not. All terms used in the instructions were defined in identical language. Further, plaintiff's verdict directors referred directly to defendants' contributory negligence instructions where the term 'negligent' was properly used. In these circumstances it is difficult to conceive how the jury was confused or misled. Juries are, after all, '. . . composed of ordinarily intelligent persons who should be credited with having common sense and an average understanding of our language.' Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325 (Mo. banc 1972). We assume that jurors follow the instructions given them. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59 (Mo.1952). Therefore, while the failure of defendants H&H, Bischof and Connie's to use substantially the same language in their converse instructions as used in plaintiff's verdict directors did not comport with previous decisions, we find that the instructions, when read together, that is, plaintiff's verdict directors and definitions given in defendants' converse instructions are clear and complete and we cannot find any reversible error.

In her second charge of error concerning the converse instructions, plaintiff argues that the trial court should not have permitted all defendants to give separate converse instructions where plaintiff's verdict directors were submitted against defendants H&H, Bischof and Connie's on a single theory of liability. Missouri courts have recognized the basic premise behind plaintiff's argument, namely, that multiple converse instructions against a single theory of liability constitutes reversible error. In...