Hanson v. Town & Country Shopping Center, Inc.

• Decision Date: 20 September 1966
• Docket Number: No. 51837,51837
• Citation: 259 Iowa 542,144 N.W.2d 870
• Court: Iowa Supreme Court
• Parties: Mrs. Helen HANSON, Appellant, v. TOWN & COUNTRY SHOPPING CENTER, INC., Appellee.

Page 870

144 N.W.2d 870

259 Iowa 542

Mrs. Helen HANSON, Appellant, v. TOWN & COUNTRY SHOPPING CENTER, INC., Appellee.

No. 51837.

Supreme Court of Iowa.

Sept. 20, 1966.

Margaret L. Beckley, Jay C. Beckley and L. M. Hullinger, Cedar Rapids, for appellant.

Shuttleworth & Ingersoll, Ralph W. Gearhart and C. W. Garberson, Cedar Rapids, for appellee.

MASON, Justice.

Plaintiff's law action seeks damages for personal injuries sustained from a fall on defendant's premises alleged to have resulted from the dangerous and hazardous condition of the premises due to an accumulation of old rough snow and ice in an area used by patrons of defendant's tenants. The trial court held plaintiff failed to prove actionable negligence and directed a verdict for defendant.

The question presented is whether there is sufficient evidence to generate a jury question on the issue. Did defendant as possessor of the real estate involved exercise reasonable care to make the same safe for plaintiff's entry or for her use for the purpose of the invitation?

The trial court based its direction of a verdict for defendant on the proposition there is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as to the owner.

In determining the question adversely to plaintiff's contention the trial court applied the rule stated in Christianson v. Kramer, 255 Iowa 239, 243, 122 N.W.2d 283, 286, and announced earlier in Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, 255. It is based on Restatement, Torts, § 343, which has been somewhat changed in Restatement, Second, Torts.

Defendant's shopping center in Cedar Rapids is in the shape of an L with the parking lot inside the angle of the L. A sidewalk runs along the east side of May's drugstore located in the north of the L. There is a single row of angle parking next to the curb adjoining this sidewalk. Just east of this angle parking space is the main concrete road running through the shopping center. Beyond the road is the asphalt parking lot.

I. In considering the propriety of a directed verdict for defendant we must give plaintiff's evidence the most favorable construction it will reasonably bear. Authorities need not be cited for this. Rule 344(f) 2, Rules of Civil Procedure.

The evidence in the light most favorable to plaintiff established there was a seven-inch snow March 15 and 16, a skiff of snow March 17 and another snow March 20. There was none from March 20 to March 22, the date of this incident. It appeared snow had been pushed off the sidewalk into an area four to five feet wide extending out from the curb into the parking space adjacent to the sidewalk. This area extended for approximately 150 feet in length and the snow piled there was permitted to become rough, jagged and slick ice as the result of thawing and freezing and the travel of cars in the area.

By March 22 the parking lot and sidewalks were clear of snow except for the area described.

Plaintiff came to defendant's shopping center about 4 o'clock on March 22, 1960 parked her car in the second or third row over from May's drugstore and spent several hours shopping, during which time she pretty well covered the shopping center. Shopping took her first to the store in the bottom side of the L. She had made one trip to the car to deposit packages and returned to do further shopping without coming near May's drugstore or the parking along the curb. She finished her shopping in May's, came out the northeast entrance, started south along what is described as a steep incline sidewalk, turned east between two parked cars, headed toward her car and in so doing slipped and fell on some ice on the area described and was injured.

There were no sidewalks or crosswalks going to the main parking area beyond the main concrete road running through the shopping center.

II. Plaintiff had the status of an invitee.

An invitee is either a public invitee or a business visitor. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Restatement, Second, Torts, § 332(3).

Invitees are limited to those persons who enter or remain on land upon an invitation which carried with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception. Restatement, Second, Torts, supra, comment (a). They are entitled to expect such care not only in the original construction of the premises, and in any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition or any latent defects followed by such repairs, safeguards or warnings as may reasonably be necessary for their protection under the circumstances. Restatement, Second, Torts, § 343, comment (b).

III. In Atherton v. Hoenig's Grocery, supra, 249 Iowa, at 55, 86 N.W.2d, at 255, we said a possessor of real estate may avoid the liability owed to an invitee in two ways: '* * * by making and keeping his lands safe, or by warning of the dangers. Obviously, actual knowledge of defects and dangers is equivalent to, perhaps better than, a warning.' Following this statement we quote with approval the rule as announced in Trimyer v. Norfolk Tallow Company, 192 Va. 776, 66 S.E.2d 441, 444:

'The duty to warn, however, exists only with respect to latent dangers, not to those which are or ought to be obvious to the invitee. To sustain a charge of negligence the unsafe condition relied on must be one of which the owner knew or should have known, and the invitee did not know and could not reasonably have discovered.' The cited decisions are correct under the facts there.

Preceding the above statement from Trimyer we quoted section 343, Restatement, Torts, as it then appeared:

'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein; * * *'.

In applying the rule announced, this court has talked of hidden dangers, traps and pitfalls as distinguished from obvious and readily apparent defects in the premises.

While these characterizations, of course, have a bearing on what is reasonable care under the circumstances, they seem to have developed into an arbitrary rule that the possessor of land is under no duty to invitees with respect to open or obvious defects. We do not believe a defect in the premises must necessarily be hidden or in the nature of a trap or pitfall in order to constitute negligence in every case.

Defects in premises which are in no sense hidden and could only be classified objectively as open and obvious, may be of such nature that the possessor should know the invitee would not anticipate or guard against them in using the premises within the scope of the invitation. To arbitrarily deny liability for open or obvious defects and apply liability only for hidden defects, traps or pitfalls, is to adopt a rigid rule based on objective classification in place of the concept of the care of a reasonable and prudent man under the particular circumstances.

IV. 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 guarantee or insure the safety of all invitees. Neither does it require plaintiff-invitee to be a self-insurer.

The extent of the invitation and care required to lawfully perform the duty imposed on the possessor of the real estate clearly is not satisfied by a showing the invitee knew or should have known of the defect at the time of her injury. Bostian v. Jewell, 254 Iowa 1289, 1296, 121 N.W.2d 141, 145.

The fact the invitee comes upon the premises after warning of a dangerous condition or knowledge thereof does not qualify the duty of the possessor to exercise reasonable care for the invitee's safety. The fact that by so doing the invitee may assume the risk or become contributorily negligent does not affect or change the duty of the owner. Ware v. Cattaneo, 69 N.M. 394, 367 P.2d 705, 707.

It must be kept in mind we are discussing the question of primary negligence of defendant rather than contributory negligence or assumption of risk by plaintiff.

An open or obvious defect might be the equivalent of a trap or pitfall simply because the possessor should know that the invitee would have no reason to anticipate it, appreciate the hazard created by the condition or guard against it.

Section 343 as it now appears in Restatement, Second, Torts, provides:

'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.'

This 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...