Harrison v. Taylor, 17002

• Decision Date: 17 January 1989
• Docket Number: No. 17002,17002
• Parties: Daniel H. HARRISON and Norma A. Harrison, husband and wife, Plaintiffs- Appellants, v. Tom TAYLOR and Jane Doe Taylor, Ed Struchen and Gloria Struchen, husband and wife, dba Ed's Office Products and Gloria's House in Bloom, John Does I thru V, Jane Does I thru V, and X, Y, Z, Corporations, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1321

768 P.2d 1321

115 Idaho 588

Daniel H. HARRISON and Norma A. Harrison, husband and wife, Plaintiffs- Appellants, v. Tom TAYLOR and Jane Doe Taylor, Ed Struchen and Gloria Struchen, husband and wife, dba Ed's Office Products and Gloria's House in Bloom, John Does I thru V, Jane Does I thru V, and X, Y, Z, Corporations, Defendants-Respondents.

No. 17002.

Supreme Court of Idaho.

Jan. 17, 1989.

Rehearing Denied March 17, 1989.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for plaintiffs-appellants. John R. Goodell argued.

Barrus, Bywater & Smyser, Burley, for defendant-respondent, Tom Taylor. Alfred E. Barrus argued.

Imhoff & Lynch, Boise, for defendant-respondent, Ed Struchen. Bradford M. Purdy argued.

BISTLINE, Justice.

This is a trip and fall case. The Harrisons brought a negligence action against the owner and lessor of a building for injuries sustained from a fall when her shoe allegedly caught the lip of a hole in a private sidewalk. The district court granted summary judgment for the defendants on the basis that the hole was an open and obvious danger.

On August 14, 1985, at about noon, plaintiff Norma Harrison and her husband made a business visit to Gloria's House in Bloom, operated by defendant Gloria Struchen, in order to pickup a floral arrangement. The sidewalks were dry that day. While approaching Gloria's House in Bloom, Mrs. Harrison encountered what she described as a hole. A section of concrete was missing from the private sidewalk due to "flaking." A slab had been removed and gravel remained. Mrs. Harrison stated in her deposition that she successfully negotiated the hole when entering the floral shop by stepping into the middle of it.

After being informed that her flowers were not ready, Mrs. Harrison began to leave the floral shop. She carried a checkbook and shoulder bag. As she exited, plaintiff walked on the sidewalk closest to the building and stepped over the hole with her right foot. She saw the hole. Her left foot caught the lip of the hole and plaintiff fell, breaking both arms. She hit the sidewalk with such force that the fall flattened a metal bracelet she was wearing. The hole was in the same condition it had been when she entered the shop.

The affidavit of James Annest establishes that prior to Mrs. Harrison's fall, he too tripped on the lip of the hole and informed defendants Struchen that the hole constituted a defect which should be remedied. His affidavit states that the defect extended across the full length of the sidewalk, or 49 inches. The width of the hole throughout its extension ranged from 20 1/2 inches on the east side to about 8 inches on the west side. The south edge of the depression had ridges ranging from 1/2 inches to 1 inch in height.

Plaintiff and her husband commenced an action against the owners and the tenants alleging negligent maintenance and failure to repair the defect in the sidewalk. Daniel Harrison seeks damages for loss of consortium. The building is owned by a partnership which includes defendant Taylor. Defendant/tenants-in-possession are Gloria Struchen, doing business as Gloria's House in Bloom, and Ed Struchen, doing business as Ed's Office Products.

All defendants moved for summary judgment. A hearing was held. The Harrisons filed a motion to join additional defendants who owned the building in partnership with the Taylors. The trial judge granted defendants' motion for summary judgment based on the open and obvious doctrine. Subsequently, the court denied the motion to join additional defendants and amend the complaint. The court's ruling on the applicability of the open and obvious doctrine, having supplied a complete defense to the Harrisons' allegations, was dispositive of these later motions.

This appeal requires us to consider these issues:

(1) Whether the trial court erred by granting summary judgment for the defendants based on the open and obvious danger doctrine; and

(2) Whether the trial court erred by denying plaintiffs' motion to join the other members of the partnership, and the partnership itself, as defendants.

I.

The judicially-created open and obvious danger doctrine has served this state long but not particularly with an even hand since the legislature established comparative negligence in 1971. To date, our cases have established two lines of authority. One line, represented by Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965), states that owners or persons in charge of property owe to an invitee the duty to keep the premises in a reasonably safe condition or to warn of hidden dangers which the owner or person in charge knows or should know by the exercise of reasonable care. However, this duty does not extend to dangers known to the visitor. Otts, supra, 90 Idaho at 131-32, 409 P.2d at 102; accord, McCasland v. Floribec, Inc., 106 Idaho 841, 683 P.2d 877 (1984); Tommerup v. Albertson's, Inc., 101 Idaho 1, 607 P.2d 1055 (1980).

The other line, represented by Ryals v. Broadbent, 98 Idaho 392, 565 P.2d 982 (1977) and Keller v. Holiday Inns, Inc., 107 Idaho 593, 691 P.2d 1208 (1984), holds that there is an exception to the open and obvious danger defense when the injured party encounters a known danger while acting in the course of employment. The rationale for the exception is that an employee is faced with an economic compulsion, i.e., possible loss of employment, which implicitly encourages the employee to encounter the danger or hazard notwithstanding that he or she perceives the risk. Keller, supra, 107 Idaho at 596, 691 P.2d 1211; accord, Marcher v. Butler, 113 Idaho 867, 871, 749 P.2d 486, 490 (1988).

This principle is recognized in the jury instruction approved by this Court in Ryals. Writing for the majority, Justice Shepard stated:

Instruction 27 provides as follows:

'The owner or operator of premises may be liable for physical injuries to an invitee proximately caused by the unsafe or dangerous condition of his premises even though the danger is obvious and known to such invitee if the owner or operator of the premises had reason to expect that the invitee would proceed to encounter the obvious danger because to a reasonable man in his position the advantages of doing so (or the disadvantage of not doing so) would outweigh the apparent risk.'

That instruction was taken almost verbatim from Restatement of Torts, 2d ed. § 343A, and has been widely accepted since its adoption, Annot. 35 A.L.R.3d 230 (1971), and we find no error therein.

98 Idaho at 396, 565 P.2d at 990. See also Restatement (Second) of Torts, § 343A, comment f.

Although it is apparent that Section 343A of the Restatement (Second) of Torts was adopted and applied in Ryals and Keller, we base our decision today on a broader reading of our cases and of the legislative intent derived in Idaho's comparative negligence statute. We do not today simply extend the Ryals/ Keller employee exception from the open and obvious danger doctrine to the facts of this case. Instead, as explained below, we simplify the standard of care applicable to both owners and occupiers of land--and to the invitees who come upon the premises. Fundamental to our decision is the legislative mandate that comparative negligence shall apply in all negligence actions. I.C. § 6-801. ¹

In Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985), we concluded that application of the implied assumption of risk doctrine is untenable in the era of comparative negligence established by I.C. § 6-801. We reasoned as follows:

The scope of I.C. § 6-801 is broad. It is not limited to certain types of action; it is not limited by exceptions. Rather, it covers any action in which the plaintiff is seeking to recover on grounds of negligence. Section 6-801's intent is clear: Contributory negligence is not to be a complete bar to recovery; instead, liability is to be apportioned between the parties based on the degree of fault for which each is responsible.

We find no reason that justifies the continued use of assumption of risk as an absolute bar to recovery in light of I.C. § 6-801's mandate and intent. Rather, we think reason and logic compel us to hold that § 6-801 applies to any use of assumption of risk as a defense, ... Therefore, assumption of risk shall no longer be available as an absolute bar to recovery in any action instituted in this state. As we mentioned above, to hold otherwise, would be to perpetuate a gross legal inconsistency by prohibiting the use of contributory negligence as an absolute bar yet allow its effect to continue under the guise of assumption of risk.

107 Idaho at 989, 695 P.2d at 374.

We find support for this approach to the relationship of comparative negligence to assumption of risk in the language of Professor Schwartz:

A rigorous application of implied assumption of risk as an absolute defense could serve to undermine seriously the general purpose of a comparative negligence statute to apportion damages on the basis of fault. This is perhaps the reason that every commentator who has addressed himself to this specific problem has agreed that plaintiff should not have his claim barred if he has impliedly assumed the risk, but rather that this conduct should be considered in apportioning damages under the statute.

(Footnotes omitted.) V. Schwartz, Comparative Negligence § 9.5, at 180 (2d ed. 1986). He notes only one jurisdiction "vigorously applies" assumption of risk as an absolute defense after the adoption of comparative negligence. V. Schwartz, at 180 n. 78.

We believe there are no significant differences between the implied assumption of risk and the open and obvious danger defenses. In fact, in this jurisdiction the doctrine first appeared in a case which virtually equated assumption of risk with the open and obvious defense:

The invitee assumes all normal, obvious and ordinary risks attendant on the use of the premises and the owner is under no duty to reconstruct or alter the premises so as to obviate known or obvious...