Harbourn v. Katz Drug Co., 46321

• Decision Date: 10 November 1958
• Docket Number: No. 2,No. 46321,46321,2
• Parties: Elva Mae HARBOURN, Respondent, v. KATZ DRUG COMPANY and Harold D. Clifton, Appellants
• Court: Missouri Supreme Court

Page 226

318 S.W.2d 226

74 A.L.R.2d 938

Elva Mae HARBOURN, Respondent, v. KATZ DRUG COMPANY and Harold D. Clifton, Appellants.

No. 46321.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1958.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 8, 1958.

Howell, Rayburn & Sanders, Robert J. Sanders and John A. Weiss, Kansas City, for appellant, Katz Drug Co.

Shughart & Thomson, Frank J. Stark and John R. Caslavka, Kansas City, for appellant Harold D. Clifton.

Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.

STOCKARD, Commissioner.

Appellants, Katz Drug Company and Harold D. Clifton, have appealed from a judgment in favor of Elva Mae Harbourn in the amount of $9,500 for personal injuries sustained when she fell over the platform of a scale located in one of the Katz stores. The parties will subsequently be referred to as in the trial court.

The cause was submitted to the jury on the alleged negligence of the defendants in that they failed to warn the plaintiff of the location of the platform of the scale and failed to erect barriers around it. Defendants have assigned as error the refusal of the trial court to direct a verdict in their favor and the giving of two of the instructions requested by plaintiff.

The Katz store where the accident occurred is located at 12th and Walnut Streets in Kansas City, Missouri. The building is not 'squared-off' at the southeast corner, but 'has been cut diagonally from 12th and Walnut across the corner,' and in this portion there are located two sets of double doors with a supporting column between them. On the inside of the store, and against this column, there was located the scale or weighing machine over which plaintiff fell. The upright portion of the scale was approximately five and one-half feet high, twelve inches wide, and eight inches deep. At its base there was a platform, extending away from the column, approximately two feet in length and six inches high. The scale was 'white or light color,' and the platform had a black rubber surface. In front of the scale there was an open area or entrance way approximately fourteen to fifteen feet across. The floor in this area was covered with alternate light and dark 10-inch asphalt tile.

On January 20, 1955, about 4:30 o'clock in the afternoon, plaintiff entered the Katz store through a door other than those in the southeast corner, and after drinking a cup of coffee at the fountain she went to the candy counter. She then started to leave the store and walked across the open area or entrance way in the southeast corner of the store to the north set of double doors, but as she testified, 'I don't know whether the door was fastened, locked or what was wrong, but I couldn't get out.' Plaintiff then turned to her right to go to the south set of double doors and took one step and fell over the platform of the scale and was injured.

The parties agree that plaintiff occupied the status of a business visitor or invitee, and the rule as to defendants' duty and liability to one in such status, as stated in 2 Restatement, Law of Torts, Sec. 343, is as follows: '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, and (c) invites or permits them to remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm * * *.' See also Wilkins v. Allied Stores of Missouri, Mo.Sup., 308 S.W.2d 623; Dean v. Safeway Stores, Mo.Sup., 300 S.W.2d 431, 432; Dixon v. General Grocery Company, Mo., 293 S.W.2d 415; 65 C.J.S. Negligence Sec. 45 b. In the application of this rule it has been held that "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers." Dixon v. General Grocery Company, supra . The owner or occupier is not an insurer of the business invitee's safety, Main v. Lehman, 294 Mo. 579, 243 S.W. 91, and the basis of his liability is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Stafford v. Fred Wolferman, Inc., Mo.Sup., 307 S.W.2d 468; Cameron v. Small, Mo.Sup., 182 S.W.2d 565; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390; Murray v. Ralph D'oench Company, 347 Mo. 365, 147 S.W.2d 623. It follows that when the condition contended to constitute an unreasonable risk is obvious to one in the exercise of ordinary care, or is actually known to the invitee, there is no duty on the owner or occupier to warn him. Summa v. Morgan Real Estate Co., supra ; Wiedanz v. May Department Stores Co., Mo.App., 156 S.W.2d 44. Therefore an owner or occupier is not liable for injuries resulting from open and obvious conditions which are or should be as well known to the invitee as to the owner or occupier. Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756; Cameron v. Small, supra ; Stoll v. First Nat. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 100.

The manager of the store, defendant Clifton, testified that he caused the scale to be placed in the entrance way against the column between the two sets of double doors, and that it had been there for over a year. He also testified that he did not recall that the north set of doors was locked on the day that plaintiff fell, but if those doors were locked it would have been his duty to lock them and that no one else would have done it. Both defendants admit in their briefs, for the purpose of this appeal, that the north set of doors was locked. Under these circumstances a jury could reasonably find that defendants knew or should have known that customers attempting to leave the store would go to the north set of doors, and in finding it locked would then turn to go to the south set of doors, and that the platform of the scale would extend directly into the path of the customer who had turned from the locked set of doors to go to the other set of doors. When all the doors were unlocked the scale was not in the narmal path of customers going in and out of the doors. Therefore, it was not the position of the scale alone that created the unreasonable risk, but it was the combination of the locked set of doors and the location of the scale with its platform directly in the path of a customer who had been required by reason of the locked doors to change his course of travel in leaving the store.

In determining whether the defendants were entitled to directed verdict, the principal question is whether the evidence, when considered most favorably to the plaintiff, established as a matter of law that the dangerous condition was known to plaintiff, or was so open and obvious that she in the exercise of ordinary care should have known of the condition and appreciated the hazard, and for that reason there was no duty on the defendants to warn her of it. In arguing this question the parties have apparently taken the position that the presence of the scale alone constituted the dangerous condition, and we shall first consider the evidence on that basis.

Plaintiff's evidence affirmatively establishes that the store was 'brightly illuminated,' and that the scale was located in an open area and not concealed behind or under anything. On direct examination she testified that prior to her fall she had 'a hazy idea' that the scale was around the door somewhere, and that she had 'a hazy idea it set in the wall,' but that before she fell she did not see the platform of the scale. On cross-examination she testified that she had good clear vision while in the store, that the scale was plainly visible and that she knew 'those types' of scales had a platform.

Plaintiff introduced in evidence three photographs showing the scale between the two sets of double doors. In these photographs the scale, including its platform, is plainly and clearly visible. On cross-examination plaintiff was asked if the scale was 'as obvious and as visible as represented by these photographs' and she replied, 'yes.'

Defendants place considerable emphasis on certain testimony given by plaintiff on deposition in which she stated that as she approached the doors to leave the store she saw the scale. Typical questions and answers on deposition are as follows:

'Q. Did you see the scale as you approached the doors to leave the store, did you see a scale sitting there between the doors? A. I saw those scales there.

'Q. That is, as you left the fountain and started to leave the store and walked toward the doors, did you see the scales at that time? A. I knew the scales were there--yes, I saw the scales.'

Upon cross-examination plaintiff testified as follows:

'Q. Did you momentarily forget about those scales that you had seen when you fell over them? A. I was looking straight at the door.

'Q. Well, did you momentarily forget about those scales after you saw them when you were at the candy counter? A. Yes.

'Q. So after you saw the scales at the candy counter and as you walked towards the door, then you momentarily forgot about the acales and fell over them, is that correct, ma'am? A. I was looking straight at the door to see if anyone was coming in.

'Q. Well, you did momentarily forget...