Dvorak v. Holiday Inns of America, Inc.

• Decision Date: 10 June 1970
• Docket Number: No. 26864.,26864.
• Citation: 429 F.2d 54
• Parties: James J. DVORAK, Plaintiff-Appellant, v. HOLIDAY INNS OF AMERICA, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

429 F.2d 54 (1970)

James J. DVORAK, Plaintiff-Appellant, v. HOLIDAY INNS OF AMERICA, INC., et al., Defendants-Appellees.

No. 26864.

United States Court of Appeals, Fifth Circuit.

April 16, 1970.

Rehearing Denied June 10, 1970.

J. B. Hodges, Lake City, Fla., for appellant.

Luke G. Galant, Lloyd C. Leemis, Jacksonville, Fla., for appellees.

Before TUTTLE and SIMPSON, Circuit Judges, and CASSIBRY, District Judge.

CASSIBRY, District Judge:

In this diversity case plaintiff James J. Dvorak of Fox River Grove, Illinois, appeals from a judgment entered pursuant to a directed verdict granted by the district court in favor of defendants Holiday Inns of America, Inc., a Tennessee corporation, and Inn of Lake City, Inc., a Florida corporation, on the issue of contributory negligence of the plaintiff in his suit for damages for serious personal injuries sustained when he fell on a stairway while stopping at the Holiday Inn near Lake City, Florida on the night of January 20, 1966.

Dvorak, 69 years old at the time of his injuries and employed by a Chicago, Illinois, firm as a consulting mechanical engineer for steel plant and cement plant work, was en route with his wife from Chicago to his winter home in the Fort Lauderdale, Florida, area. They arrived at the Holiday Inn at about 6:00 P.M. on the 20th during a rain and, upon checking in, were assigned a room on the second floor on the west side of the east wing of the motel. This wing had six outside, uncovered stairways — one on each side of the wing at the north end, one on each side at the south end and one on each side in the middle. After parking his automobile to the east of the wing as he was directed, the plaintiff, carrying a club bag weighing about 10 pounds, ascended one of these stairways to reach his room.

It was still raining when Dvorak descended another of the stairways at the south end of the wing to the dining room for dinner and afterwards when, by way of the same stairs, he took some food back to the room for his wife. It rained all night and was still raining very hard when he and his wife prepared to depart at about 8:30 A.M. the following morning. On another of the stairways with his right hand on the handrail — and his club bag in his left hand — plaintiff followed his wife by two or three steps down the stairs. She negotiated them without incident, but he fell on the third step from ground level. His wife did not witness his fall and he did not know what caused him to fall.

Treatment for his injuries kept him in Florida until June. On his way back to Chicago he stopped at the inn and attempted to reconstruct the accident by examining the steps, taking photographs, making measurements and preparing drawings of them. From his examination and calculations plaintiff developed a theory of negligence that the stairway was improperly maintained and had defects in construction causing it to be dangerous in the following particulars:

1. The stairway was not covered, but exposed to the elements, thus failing to conform to the rules and regulations of the Florida Hotel and Restaurant Commission;

2. There was no set of covered steps from each building or series of units which would allow guests to avoid stairways exposed to the elements;

3. There was no non-skid material on the treads and metal nosing contrary to the rules and regulations of the Florida Hotel and Restaurant Commission;

4. The stairway was so constructed that water would be retained on the treads, making it unduly slippery and dangerous when rained upon;

5. The metal nosing at the outer edge of the treads projected above the surface of the treads, creating a hazard — particularly when wet — by reason of the difference in traction between the surface of the tread and the metal nosing, as well as the difference in elevation between the surface of the tread and the metal nosing at the forward edge of the tread;

6. The last step was higher than the others;

7. The measurements of the treads and risers were not in conformance with the Florida State Hotel and Restaurant Commission\'s rules and regulations, the Southern Safety Building Code or general architectural practices and were dangerous and unsafe.

Plaintiff brought suit against defendants on this theory of negligence, alleging that the defendants were negligent in all these particulars. The defendants denied the alleged negligence and alleged that plaintiff was guilty of negligence which caused or contributed to causing the fall in that, under the conditions then existing, he failed to exercise due care and caution for his own safety in descending the stairway.

At the conclusion of the presentation of plaintiff's case, the district court granted the defendants' motion for a directed verdict on the ground that the plaintiff was contributorily negligent as a matter of law. The plaintiff has appealed urging that the trial judge erred (1) in holding that the plaintiff was contributorily negligent as a matter of law, and (2) in excluding from evidence the Rules and Regulations of the Florida State Hotel and Restaurant Commission and the testimony of certain witnesses relative to those rules and regulations. Under our decision to affirm on the ground that the plaintiff was contributorily negligent as a matter of law, it is not necessary to examine the merits of the other errors alleged.

The plaintiff contends on the issue of contributory negligence that he was not negligent, and that the directed verdict in this case is contrary to the current trend in Florida not to take a question of negligence from the jury.

We agree that in negligence cases particularly it is ordinarily the function of the jury to weigh and evaluate the evidence, but under the Florida test for resolving motions for directed verdict the district judge properly withdrew this case from the jury and decided the question of contributory negligence as a matter of law. The Supreme Court of Florida in Stirling v. Sapp, 229 So. 2d 850 (Fla.1969), admonished that motions for directed verdict "should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence", and should be granted "only if there is no evidence or reasonable inferences to support the opposing position." Id., at 852. The court observed that in negligence cases "A jury should determine what is or what is not negligence in a particular case where there are disputes or conflicts in the testimony, * * * or where the facts are such that reasonable persons may fairly arrive at different conclusions." On the other hand, "Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question of defendant's negligence or plaintiff's contributory negligence becomes one of law for the court."¹Id., at 853. We find this latter situation to be the case here.

In Florida an adult is charged by law with the duty at all times to exercise reasonable care for his own safety,² and momentary forgetfulness of a known hazard or failure to pay any attention to what he is doing does not relieve him of his duty under the circumstances.³

The respective duties of the owner, occupant or person in charge of premises and invitees or business visitors thereon are set out succinctly in Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227, 228 (Fla.App.1967):

"The owner, occupant or person in charge of the premises owes to the invitee of sic business visitors thereon, the duty of exercising reasonable care to keep the premises in a reasonably safe and suitable condition. * * * He is not required to keep the premises absolutely safe, * * * or in such condition that no accident could possibly happen to a customer. * * * There is no duty to warn an invitee against patent or obvious conditions which are not dangerous per se. * * * An invitee is under a duty to exercise reasonable care for his own safety and to observe that which is obvious and may be seen by one exercising such care. * * *"

Additionally the proprietor of the premises has an obligation to warn of latent dangers, i. e., those which are not apparent from a casual observation of the premises.⁴

When the danger is patent and obvious and the invitee does not exercise reasonable care to avoid injury, the question of contributory negligence is properly decided by the court as a matter of law.⁵ If an invitee knows of the danger or hazard it is regarded as patent and obvious,⁶ and an invitee who knows of a danger on premises, and does not act reasonably to avoid injury to himself, is contributorily negligent as a matter of law.⁷

Generally speaking the invitee is under a duty to see and be aware of what is open and obvious, that is, to perceive that which would be obvious to him upon the ordinary use of his senses.⁸ This has been expressed, "* * * if it the danger is there to be seen, it is deemed in law, to have been seen."⁹ However, when the invitee does not know of the danger, the fact that the danger is visible does not necessarily in all cases determine the issue of the invitee's contributory negligence. If the facts of a particular case create a reasonable doubt as to whether the invitee used due care for his own safety under all of the circumstances, he is not guilty of contributory negligence as a matter of law, even though the danger was visible.¹⁰ The issue of contributory negligence is for the jury therefore, and not for the court, where reasonable doubt exists under all of the circumstances — of which visibility of the danger is an important one — as to whether the invitee used due care for his own safety.¹¹ Reasonable doubt as to whether an invitee should have been aware of a visible danger, i.e., whether the danger was patent and obvious, may be created by characteristics of the danger itself or by the circumstances of the invitee's relationship to it.¹²

Although the rules are clearly enough stated, the individual opinions on the facts of the particular...