Hallett v. Furr's, Inc.

• Decision Date: 08 February 1963
• Docket Number: No. 7178,7178
• Citation: 71 N.M. 377,378 P.2d 613,1963 NMSC 28
• Parties: Erwin A. HALLETT and Eunice J. Hallett, Plaintiffs-Appellants, v. FURR'S, INC., Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 613

378 P.2d 613

71 N.M. 377

Erwin A. HALLETT and Eunice J. Hallett Plaintiffs-Appellants, v. FURR'S, INC., Defendant-Appellee.

No. 7178.

Supreme Court of New Mexico.

Feb. 8, 1963.

Harris & Cathey, Roswell, for appellants.

Atwood & Malone, Roswell, for appellee.

D. A. MACPHERSON, Jr., District Judge.

This case, one of first impression in New Mexico, involves the duty of a landowner or proprietor of a business to protect or otherwise warn a business invitee who falls on an outdoor parking lot, rendered slippery by ice and snow deposited by a storm, still in progress at the time of the fall, the ice and snow lying in normal, smooth condition and not being rough or otherwise disturbed.

The lower court, on motion for summary judgment, dismissed the action, holding under the facts of the case that there was no legal duty imposed on the proprietor. On appeal, plaintiffs contend that two issues--that of negligence on the part of the store, and contributory negligence on the part of the injured plaintiff--were jury questions, being matters upon which the minds of reasonable men could differ.

Defendant operates a food store in Roswell, New Mexico, and provides a large parking lot for the benefit of its customers. On December 7, 1960 about three o'clock in the afternoon, plaintiff, Eunice J. Hallett, parked her car on this lot and was in the act of going from her car to defendant's store, when she slipped and fell, causing injuries for which she sues.

The parties stipulated to a report from the weather bureau at Roswell indicating that at 8:56 a. m. on December 6, 1960, some thirty hours before the accident in question, an intermittent rain, snow and drizzle began which continued until pass midnight on December 7, 1960, the total precipitation being .14 of an inch and the temperature remaining below freezing during all of this period.

As shown above, the accident happened about 3:00 p. m. on December 7, 1960. Freezing drizzle was still falling and the storm was still in progress at this time. Specifically, the weather report states that on December 7 'freezing drizzle began again at 1:53 p. m. mixed with some snow and ended briefly at 3:55 p. m., beginning again at 4:30 p. m. and continuing past midnight.' It appears that from 10:50 a. m. to 1:53 p. m. probably no rain or snow fell.

The parking lot was of concrete and reasonably level. Defendant's manager testified that he went to work at 5:00 a. m. on the morning of the accident; that it was snowing, with an inch or two covering the ground, and freezing; that the parking lot was icy and slippery; that he instructed his employees to clean off the sidewalks where water dripped off the roof and froze (the sidewalks being apparently adjacent to the store); that he did not instruct them to clean the ice off of or otherwise treat or neutralize the icy and slippery condition of the parking lot; that he knew of nobody else falling on the parking lot on December 7, 1960 or before; that in the past he had graded the parking lot but didn't know when he last did so, and did not so grade the lot when the weather was so bad it would be useless, and that the weather had been cold, freezing and misting since the night of December 6, 1960.

Plaintiff, Eunice J. Hallett, testified there had been rain the day before the accident and snow the next morning and day which had frozen on the ground; that at the time of the accident she did not think it was raining or freezing; that, however, the parking lot was reasonably level, was icy and wet but, to use her words, 'it was not a pile of ice.'

Several recent 'slip and fall' cases have received the attention of this court (all being reviewed in Mahoney v. J. C. Penney Co., N.M., 377 P.2d 663) but none involved a slip and fall on snow or ice. The law on this subject presents some unique facets which we will now explore, bearing in mind, in the present case, the added feature that the storm which produced the snow and ice had not ceased, but was still in progress. The nature of the hazard, and the opportunity of the landowner to take action, would appear to be of particular significance in this type of lawsuit.

There are many precedents involving public and municipal corporations, but precedents involving a private landowner or proprietor maintaining a parking lot covered with ice or snow are extremely few.

Insofar as municipal corporations are concerned, the following quotation from Smith v. District of Columbia, (1951), 89 U.S.App. D.C. 7, 189 F.2d 671, 39 A.L.R.2d 773, at page 674, is a good summary of the general attitude taken by the courts:

'Snow and ice present a peculiar problem, in that they may be dangerous in their natural, normal state and over many, or even all, parts of the entire city. A municipality cannot be held liable for that which is not its fault. So it cannot be held liable for injuries due to snow or ice as or just after the snow has fallen or the ice formed and when the city has had no opportunity to correct dangerous conditions thus created. And it cannot be liable for that which is beyond its power to correct. So, absent a defect in the street itself, it cannot be held liable for injuries due to the mere slipperiness of snow or ice in its natural state, because it cannot cure such slipperiness on every bit of sidewalk and street in a large city. * * *'

Likewise, note the following quotation from American Jurisprudence, Proof of Facts, Vol. 10, at page 845:

'The obvious impossibility of keeping the streets and sidewalks free of ice and snow at all times has forced the courts to temper this duty in regard to the removal of dangerous conditions arising from natural causes. In arriving at a compromise the courts have taken the view that conditions which arise from natural causes, even though they may be somewhat hazardous, are not the type of dangerous conditions which amount to defects upon the streets or sidewalks which the city is obligated to remedy. The admittedly arbitrary and artificial definition of such dangerous conditions arose from necessity. Attempts to clear the sidewalks from snow during a snowstorm would be futile, and immediate removal of snow from all streets and sidewalks following a storm would be impossible; hence the courts have refused to impose such strict liability upon the municipalities. There is no duty upon the city to take any action until the storm has abated. The duty thereafter is only to remove the ice and snow at places where they constitute a defect or dangerous condition because of their change in form.

* * *

* * *

'As long as ice or snow remains in its natural, smooth condition, it does not constitute a defect for which the city may be held responsible. * * *'

Having thus considered the analogy to municipalities, let us turn to the cases involving private proprietors. Appellants rely upon three precedents, one from Pennsylvania and two from Colorado; whereas appellee relies upon an early Colorado case, precedents from Ohio, and a Fourth Circuit Court of Appeals decision applying Virginia law. All involve the exact situation ...