Hefele v. National Super Markets, Inc.

• Decision Date: 23 February 1988
• Docket Number: No. 52716,52716
• Citation: 748 S.W.2d 800
• Parties: Larry HEFELE, Plaintiff-Respondent, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 800

748 S.W.2d 800

Larry HEFELE, Plaintiff-Respondent, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.

No. 52716.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 23, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1988.

Application to Transfer Denied May 17, 1988.

Arthur H. Nissenbaum, St. Louis, for defendant-appellant.

Eugene H. Fahrenkrog, St. Louis, for plaintiff-respondent.

DOWD, Judge.

National Super Markets appeals from the judgment of the trial court entered on a jury verdict assessing appellant to be 70% at fault and awarding respondent deliveryman $49,000.00 in damages arising out of a slip and fall incident in which respondent was injured.

The evidence was that respondent deliveryman repeatedly crossed over an ice covered sidewalk located near the entrance way of appellant National Super Market's store (hereinafter National) while making deliveries at the store. Respondent initially attempted to make his deliveries via National's loading dock but was denied access at that entrance. Thereafter, respondent parked his truck in a handicapped parking zone near the front entrance of the store but was instructed by the store manager to move his truck to the curb in front of the store.

The sidewalk leading to the store had been cleared of snow but an icy patch existed on that part of the sidewalk adjacent to where respondent had parked his truck. Respondent admitted he had knowledge of the ice but continued to cross the icy patch while making his deliveries. During one of his trips across the ice respondent slipped and fell sustaining injury.

The jury assessed damages at $70,000.00 and determined National was 70% at fault and respondent was 30% at fault. The jury then awarded respondent $49,000.00. The trial court entered judgment thereon and National appeals.

First, National contends the trial court erred in failing to sustain appellant's motion for directed verdict and motion for judgment notwithstanding the verdict as respondent failed to make a submissible case as to the duty element of a negligence action. National contends the icy condition was an "open and obvious" danger and that respondent did not establish a breach of duty to render the issues of comparative fault applicable.

Prior to the adoption of comparative fault the general rule as to business invitees was that an occupier owed no duty to an invitee to warn of "open and obvious" dangers. Harbourn v. Katz Drug Co., 318 S.W.2d 226, 229 (Mo.1958). In Cox v. J.C. Penney Co., 741 S.W.2d 28 (Mo.banc 1987), our Supreme Court definitively resolved the issue of whether, following the adoption of comparative fault, the knowledge of an invitee is considered in determining the duty of the occupier or whether that knowledge is considered only in determining the invitee's comparative negligence. There the court held comparative fault "modifies the common law relationship between business invitors and their invitees." Id. at 30.

The pre-comparative fault bar, based on lack of duty where a plaintiff fails to exercise ordinary care in discerning an obvious danger, is a form of contributory negligence and is eliminated under the comparative fault system. Id. Under comparative fault the jury is allowed to assess defendant's fault for failure to maintain the premises in a reasonably safe condition and plaintiff's fault in failing to use ordinary care in discovering an obvious danger. National's first point is denied.

National contends in its second point that the trial court erred in failing to sustain National's motions for directed verdict and judgment notwithstanding the verdict on grounds respondent failed to make a submissible case in that respondent failed to prove the icy condition was an unnatural accumulation or a condition altered in some way by National. National has not preserved this issue for appellate review.

The issue of the duty of an abutting property owner as to natural accumulations of ice and snow was raised for the first time in National's motion for judgment notwithstanding the verdict. This ground was not specifically raised either orally or in National's written motions for directed verdict.

Rule 72.01(a) requires that a directed verdict "state the specific grounds therefor." "[A]bsent a motion for directed verdict which complies with the requirement of Rule 72.01(a) ... the postverdict motion for judgment n.o.v. is without basis and preserves nothing for appellate review." Christ v. Tice, 578 S.W.2d 319, 322 (Mo.App.1979); Keller v. Anderson Motor Service, 652 S.W.2d 735, 736 (Mo.App.1983). Point denied.

In its third point National contends the trial court erred in submitting Instruction No. 6 to the jury. Instruction No. 6, patterned after MAI 22.04, is the verdict directing instruction for sidewalk defects. National contends MAI 22.03, the verdict directing instruction for "Invitee Injured," should have been given instead of MAI 22.04 because MAI 22.04 fails to instruct the jury on "known and obvious" danger. National further contends that MAI 22.04 is applicable where an abutting landowner alters a sidewalk for its own special purposes and that respondent failed to prove National was such a landowner.

Cox v. J.C. Penney Co., supra, is dispositive of National's contention that MAI 22.03 should have been given instead of MAI 22.04 because MAI 22.04 fails to instruct on "known and obvious" danger. The two instructions are virtually identical except for the added paragraph in MAI 22.03 requiring the jury to find "plaintiff did not know and by using ordinary care could not have known of the [dangerous] condition." This paragraph is not included in MAI 22.04. In Cox, supra, our Supreme Court concluded the "known or obvious danger" paragraph of MAI 22.03 is not compatible with comparative fault. We thus find no error in the giving of MAI 22.04.

As to National's contention that the instruction was erroneously given because respondent failed to prove National was an abutting landowner that altered the sidewalk for its own use, National has failed to preserve this issue for appellate review. National failed to specifically raise this contention at trial or in its motion for new trial and thus has waived any claim of error on this ground. Rule 78.07; St. John Bank & Trust Co. v. City of St. John, 679 S.W.2d 399, 404 (Mo.App.1984).

In National's fourth point it contends the trial court erred in overruling National's objection to respondent's testimony regarding salt being placed on the ice by National's employee. National contends the evidence was inadmissible as a subsequent repair.

Precautionary measures taken after an accident are not ordinarily admissible to show antecedent negligence. Diversified Metals Corp. v. Aaron Ferer & Sons, Inc., 498 S.W.2d 783, 785 (Mo.1973). Such evidence may be admissible, however, for other purposes such as to show the condition of the accident site at the time of the fall. Robinson v. Safeway Stores, 655 S.W.2d 617, 620 (Mo.App.1983).

National called two witnesses to testify in its defense, the assistant and associate managers of the store. It was their cumulative testimony that it was part of the grocery baggers' duties to regularly inspect the sidewalk for ice or snow and to clear and salt the walk as needed. Further they testified it was the store's policy to fill out an accident...