Frantz v. Knights of Columbus

• Decision Date: 28 March 1973
• Docket Number: No. 55367,55367
• Parties: Alberta J. FRANTZ, Now Deceased, and Orion L. Frantz, Executor of the Estate of Alberta J. Frantz, Deceased, Appellee, v. KNIGHTS OF COLUMBUS, Appellant.
• Court: Iowa Supreme Court

Page 705

205 N.W.2d 705

Alberta J. FRANTZ, Now Deceased, and Orion L. Frantz, Executor of the Estate of Alberta J. Frantz, Deceased, Appellee, v. KNIGHTS OF COLUMBUS, Appellant.

No. 55367.

Supreme Court of Iowa.

March 28, 1973.

D. C. Nolan, of Nolan, Lucas & Nolan, and J. Patrick White, Iowa City, for appellant.

Willard M. Freed, Iowa City, and L. G. Klein, Coralville, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, HARRIS and McCORMICK, JJ.

MASON, Justice.

This is an appeal by defendant, Knights of Columbus, from an adverse judgment rendered in a law action tried to the court. Alberta J. Frantz instituted the action to recover for personal injuries sustained in a fall on premises possessed by defendant alleged to have resulted from the dangerous condition of the premises due to an accumulation of ice in the entryway patrons were invited to use in entering and leaving the building.

The incident giving rise to this action occurred February 8, 1969. That evening plaintiff and her husband attended a dance sponsored by the Booster Club of Regis High School at the Knights of Columbus hall in Iowa City, arriving at approximately 9 o'clock. About 11 p.m. they proceeded to leave the building through the door they had entered. Immediately outside this particular door is a slab of concrete about seven feet by nine feet in size. Plaintiff apparently slipped on some ice on the cement, fell and fractured her pelvis. She was hospitalized until March 30.

Plaintiff bases her right to recover on the theory defendant failed to properly maintain a safe access and egress from the rear of the premises. She alleged in her petition defendant's negligence in one or more of the following respects was a proximate cause of her injuries: (1) that the defendant allowed ice to accumulate on the property immediately in front of and adjacent to the rear entrance; (2) in failing to warn plaintiff of the dangerous condition immediately in front of and adjacent to the entry where patrons were invited to enter; and (3) in failing to remove the accumulation of ice in front of and adjacent to the rear entryway.

Defendant in answer denied the specifications of negligence and as an affirmative defense alleged plaintiff's negligence was a proximate cause of the injuries of which she now complains.

Defendant's motion for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence was overruled and judgment was awarded plaintiff for $18,442.20.

The trial court found there had been sleet, snow, cold and wind all week before the accident. Although February 8 was cold it did not sleet or snow. The court further found defendant was negligent in the respects specified in subparagraphs 2 and 3 set out, supra; that such negligence was a proximate cause of the accident and resulting injuries and damages to plaintiff; and defendant had failed to prove by a preponderance of the evidence plaintiff was negligent.

Defendant's motion for judgment notwithstanding findings of fact and in the alternative for new trial was overruled.

Defendant assigns seven errors relied on for reversal which it argues in four divisions. As summarized, defendant asserts, (1) the findings of fact are contrary to the evidence; (2) plaintiff failed to establish defendant had either actual or constructive knowledge of any slippery or otherwise hazardous condition on the premises; !3) the court applied erroneous principles of law in reaching its judgment; and (4) the judgment is excessive.

On this appeal neither the status of plaintiff as an invitee nor defendant's status as the possessor of the real estate involved is contested.

I. In a law action tried to the court as here, our review is not de novo but only errors assigned. Under this limited extent of review the findings of fact by the trial court have the effect of a special verdict and are equivalent to a jury verdict. If supported by substantial evidence and justified as a matter of law, the judgment which not be disturbed on appeal. Rule 344(f)(1), Rules of Civil Procedure. Stated in other words, in a law action tried to the court its findings of fact having adequate evidentiary support shall not be set aside unless induced by an erroneous view of law. It follows, the rule does not preclude inquiry into the question whether, conceding the truth of a finding of fact, the trial court applied erroneous rules of law which materially affect the decision. We may also interfere when such findings are undisputed or no conflicting inferences may be drawn from them. Beneficial Finance Company of Waterloo v. Lamos, 179 N.W.2d 573, 578 (Iowa 1970).

Further, we must construe the evidence in the light most favorable to the trial court's judgment, and this court will not weigh the evidence or pass on the credibility of the witnesses.

It is also true that findings of a trial court are to be broadly and liberally construed, rather than narrowly or technically. In case of doubt or ambiguity, findings will be construed to uphold, rather than defeat, the judgment. Henschel v. Hawkeye-Security Insurance Company, 178 N.W.2d 409, 415 (Iowa 1970).

Negligence is predicated upon an unperformed duty. The possessor of real estate is under a duty to use reasonable care to keep his premises safe for use by invitees. Failure to do so constitutes negligence. The standard of reasonable care does not require the premises to be free from all defects so as to quarantee or insure the safety of all invitees. Neither does it require plaintiff-invitee to be a self-insurer. Hanson v. Town and Country etc. Center, 259 Iowa 542, 547, 144 N.W.2d 870, 874.

In the course of this opinion we have referred to defendant as the 'possessor' of the real estate involved. Section 328E, Restatement, Second, Torts, contains this definition:

'A possessor of land is

'(a) a person who is in occupation of the land with intent to control it or

'(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

'(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).'

In Hanson, 259 Iowa at 548, 144 N.W.2d at 874, we set out the provisions of section 343 as it now appears in Restatement, Second, Torts:

'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

'(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

'(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

'(c) fails to exercise reasonable care to protect them against the danger.'

Comment (a) of the Reporter's Notes under the section quoted suggests that section should be read together with section 343A relating to known or obvious dangers which has been added in Restatement, Second, Torts, and provides:

'(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. * * *.' As stated in 343A, there are some situations in which there is the duty to protect the invitee against even known dangers, where the possessor should anticipate harm to the invitee notwithstanding such knowledge. Restatement, Second, Torts, section 343, comment (b).

Comment (b) under section 343A states:

'(b) The word 'known' denotes not only knowledge of the existence of the condition or activity itself, But also appreciation of the danger it involves. Thus the condition or activity must not only be knwon to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.' (Emphasis supplied)

II. Thus, one question presented is whether there is substantial competent evidence to support the trial court's finding defendant was negligent in performing the duty it owed to plaintiff as an invitee.

We turn to the record. Due to her physical inability to attend the trial, plaintiff testified by way of deposition.

Plaintiff was 53 years of age, a house-wife married to Orion L. Frantz and the mother of seven children.

In her deposition, plaintiff testified she entered the back entrance of the hall with no difficulty, and gave little attention to any snow or ice on the walk. She gave the following answers in response to her attorney's questions:

'Q. Did you observe any snow or ice on the walkway or the area right outside the back door? A. Not particularly, no.

'Q. Anything there you observed that looked to be slippery? A. No, not really.

'Q. What is the fact as to whether or not you observed anything that appeared to be hazardous or dangerous? A. No.'

Plaintiff's husband testified that prior to February 8, 1969, a Saturday, it had been 'nasty all week, sleet, snow, cold, wind,' and that February 8 was a 'cold, windy day.' He and plaintiff had been to the hall on several occasions prior to February 8 and the back entrance through which they entered was well-lighted by a flood light. He further gave this testimony concerning the condition of immediate area outside the entrance:

'Q. Now as you went up to the back entrance, what did you observe with reference to the surface around the back entrance? A. There was patches of ice, about all I know. I didn't pay that much attention.

'Q. But you did see patches of ice? A. Yes.

'Q. What about in the parking lot just back of the Elks--or back of the K.C.' s? A. Probably the same.

'Q. How about right up close to the back door where there's a cement platform? A. Well, I tell you, I really didn't pay that much attention.

'Q. Did you observe any snow or ice? A. Oh, yes,...