Gresser v. Taylor, 40362

• Decision Date: 05 May 1967
• Docket Number: No. 40362,40362
• Citation: 276 Minn. 440,150 N.W.2d 869
• Parties: Norbert A. GRESSER, Appellant, v. Leslie TAYLOR et al., Respondents.
• Court: Minnesota Supreme Court

Page 869

150 N.W.2d 869

276 Minn. 440

Norbert A. GRESSER, Appellant, v. Leslie TAYLOR et al., Respondents.

No. 40362.

Supreme Court of Minnesota.

May 5, 1967.

Syllabus by the Court

1. A possessor of premises may be found liable for injuries sustained by a business invitee struck by a driverless car which goes into motion after being parked and left on a curbless public street at the crest of a hill adjacent to the premises when the hazard was reasonably foreseeable and could have been eliminated by precautions which were reasonably simple in view of the danger to be apprehended.

2. The owner and operator of a motor vehicle may be found liable for damage caused by the car when, unoccupied and for an unexplained reason, it moves from the place where it is parked, down a hill abutting the parking place and into a person whose presence at the site of the accident was foreseeable; and this is so notwithstanding a lapse of about 3 hours between the time the operator left the vehicle and the time of the collision.

Ryan, Kain & Kressel and James J. Moran, Minneapolis, for appellant.

Quinlivan, Quinlivan & Williams, St. Cloud, for respondent Taylor.

Carroll, Cronan, Roth & Austin, Minneapolis, for respondent Albany Golf Course.

OPINION

SHERAN, Justice.

Appeal from a district court's order denying plaintiff's motion for judgment notwithstanding the verdict or in the alternative for a new trial.

Norbert A. Gresser sued Leslie Taylor, Mrs. Leslie Taylor, and Albany Golf Course, a Minnesota corporation, for injuries sustained when the Taylors' automobile, having rolled from its parked position and down a hill, struck the plaintiff while he was on the golf course. At the close of plaintiff's case, the trial court directed verdicts in favor of all defendants. Post-trial motions having been denied, our review on appeal begins with this summary of the evidence:

On August 20, 1961, defendant Albany Golf Course conducted a tournament on its premises. An admission fee was charged. Adjoining Albany Golf Course is a public street. It is located along the crest of a hill overlooking the golf course. On tournament days the custom has been that people park perpendicular to the edge of the street rather than in the usual parallel way. Defendant Leslie Taylor arrived at the golf course about 7:30 or 8 a.m. the day of the tournament as a passenger in a friend's car. The driver was directed into a perpendicular space on a golf-course side of the street by a person they assumed to be a parking attendant, who motioned the driver to pull up further onto the ridge of the hill overlooking the golf course. But he refused to do so. Even as parked, it was considered that the car's location was 'just a little bit too dangerous' so the emergency brake was set and the rear wheels blocked with rocks. The front end of this car as parked was lower than the back end, and the front wheels of the other cars parked before this one were even closer to the golf course property than it was.

Plaintiff arrived about 8:30 a.m. to participate in the tournament. He noted that there were already many cars parked on the golf-course side of the street. A person with a stick or cane motioned him to park on the opposite side and he did so. He entered the golf course by way of some wooden steps commencing at the end of the line of cars parked on the golf-course side of the street. But he noticed nothing about the way these cars were parked which caused him concern.

Mrs. Taylor arrived at the golf course about 1:30 p.m. She then parked about two blocks away. Shortly thereafter she left the golf course, returning about 2 p.m. This time she parked perpendicular to the golf course several cars from the wooden steps and four or five cars from where her husband's friend had parked. She was not directed to do so and observed no one in the area who appeared to be in charge. She testified that she drove the car into the parking place; stopped it so that the front of her car was even with that of the next one; put the car in reverse gear (it was a manual transmission); set the emergency brake; sat for a short time; and stepped on the brake again, depressing it about an inch further so that it was down as far as it would go.

She discussed with her passenger the potential danger of parking in this position. She recognized the hazard and said she would not have parked there at any other time, being conscious as she parked that there was a dip or depression bespeaking danger, particularly since the first tee was right below the steep hill in front of the car. But she did not look for anything with which to block the wheels. She thought the brakes would hold the car.

It is probable that the car was parked completely upon the public street but not more than a couple of feet from the golf course property line. When asked whether the ground upon which the car was parked was relatively flat or whether the front end was up slightly or down slightly, she answered, 'Well, I think it was more level than anything.'

She thought she left the car with the window up but was not sure. She did not lock the doors.

The Taylors had owned the car in question for some time. ¹ Mrs. Taylor drove another car more often than this one. The other car had an emergency brake which was pulled with the left hand; she could not recall how it was released. She stated that the emergency brake on the car involved in the accident was set by stepping on it with one's left foot and released by pulling a little handle. She did not recall braking this car on hills before but she had used its emergency brake. She said she had not confused the braking system on this car with that on the other. Her husband showed her how to drive the car involved in the accident and they both read the instruction book that came with it. The instruction book says that to set the emergency brake one should '(a)t the same time depress foot brake to assist setting the parking brake and maintain the applied pressure until brake holds.' Mr. Taylor testified that one could apply the emergency brake 'just as fully by stepping on it without stepping on the footbrake.'

At about 5 p.m. plaintiff walked over to the number one tee where there was a wooden bench. He sat on the back of it with his feet on the seat. A short time later, without warning, he was struck from behind and thrown about 40 feet by the Taylors' car. He was injured as a consequence.

A witness who saw the car just before it hit plaintiff noticed that there was a young boy running or stumbling ahead of it. When the Taylors reached the car, the door on the driver's side was open. A witness recalled that at this time the window on the driver's side was down. There were no marks indicating that the car had been struck from the rear. Mr. Taylor testified that when he got into the car the brake release was bent up over the cowl so that he had to straighten it out before the brake could be released. The tracks leading up the hill appeared to be of rolling tires; there was no digging in or scuffing of the grass to indicate the wheels had been locked as the car came down the hill.

The only question on appeal are whether on the above facts jury questions were presented as to liability on the part of the golf course and on the part of the Taylors.

1. A jury could have found the golf course liable. ² Plaintiff, who had paid to participate in the tournament, was a business invitee. Restatement, Torts (2d) § 332; see, Mastad v. Swedish Brethren, 83 Minn. 40, 85 N.W. 913, 53 L.R.A. 803 (picnic for which admission fee was charged); Lowe v. City of Gastonia, 211 N.C. 564, 191 S.E. 7 (golf course). Because of this, the golf course, operating a place of public amusement, owed a duty to protect him from dangers it should have expected he would fail to discover, appreciate, or guard against, including not only dangers of which it was aware but also those which in the exercise of reasonable care it should have discovered. Restatement, Torts (2d) § 343.

This duty included protecting plaintiff from harm caused by the accidental, negligent, or intentionally harmful acts of third persons and by its failure to exercise reasonable care to discover that such acts are being done or are likely to be done. Restatement, Torts (2d) § 344; Mastad v. Swedish Brethren, supra. It had a duty to use reasonable care to protect plaintiff from such acts of third persons even though the acts were committed outside the golf course's premises. Restatement, Torts (2d) § 344, comment B. ³

A business proprietor may be held liable for failing to prevent injury from a car rolling down a hill. Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995 (service station's failure to check whether car patron left for service was properly secured). Cf. Yates v. Williams (La.App.) 32 So.2d 505.

The present case is very similar to Marquardt v. Cernocky, 18 Ill.App.2d 135, 151 N.E.2d 109, 67 A.L.R.2d 956, in which a paying patron of a picnic grounds was injured when struck by a car which moved from its parked position down a hill. When the driver of the car had arrived, an employee of the picnic grounds at the gate generally directed him to park on the hill, a natural condition of the terrain, but no one was supervising the actual parking of automobiles. The driver testified he parked the car on a flat patch of ground, turned off the ignition, and put the car in reverse to hold it in place. He did not set the hand brake. Other evidence indicated the spot where he parked was not level. It appeared that, unknown to the driver, his young daughter returned to the car and moved the gearshift lever to neutral whereupon the car rolled down the hill and struck plaintiff. The court held that upon this evidence the jury was justified in holding the picnic grounds proprietors liable on the ground that with full knowledge of the conditions of the area and its occupancy by patrons and automobiles they did...