Hellmann v. Droege's Super Market, Inc., 68737
| Decision Date | 28 January 1997 |
| Docket Number | No. 68737,68737 |
| Citation | 943 S.W.2d 655 |
| Parties | Ruth HELLMANN, and Robert Hellmann, Plaintiffs/Appellants, v. DROEGE'S SUPER MARKET, INC. and Hillermann Nursery and Florist, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
Gray & Ritter, P.C., Paul J. Passanante, Joan J. Tanner, St. Louis, for plaintiffs/appellants.
Evans & Dixon, Edward S. Meyer, Stephen E. Winborn, St,. Louis, for Droege's Super Market.
Godfrey, Vandover & Burns, Inc., Denis C. Burns, John B. Singleton, St. Louis, for Hillermann Nursery.
Ruth Hellmann (plaintiff) brought suit for personal injuries on a premises liability theory against defendants, Droege's Supermarket, Inc. (Droege's) and Hillermann Nursery and Florist, Inc. (Hillermann). Plaintiff sustained serious injuries while returning to her truck from the store when she slipped and fell on ice on Droege's parking lot. Her husband brought a derivative claim for loss of consortium. The trial court directed a verdict in favor of defendants at the close of plaintiffs' evidence. Because defendant Hillermann had no contractual duty or right to plow Droege's parking lot on the day of the injury, we hold the trial court did not err in directing a verdict in favor of Hillermann. We hold the trial court erred in directing a verdict in favor of Droege's. We remand for a new trial on the claim against Droege's.
When reviewing a motion for directed verdict, this court views the evidence and all inferences to be made from it in the light most favorable to the plaintiff. Martin v. Pashia, 892 S.W.2d 681, 683 (Mo.App. E.D.1994). We disregard all evidence and inferences to the contrary to determine if plaintiff made a submissible case. Id. A directed verdict is proper only when reasonable minds could not differ as to the proper verdict. Id. We recite the facts with this standard in mind.
On January 4, 1991, plaintiff, while volunteering for the Washington Elks Club, went to Droege's to purchase food for a dinner she was to prepare for the Elks Club the next day. She testified that it was a cold and clear day. There had been winter storms the week before and there was ice and snow remaining on the ground. Her porch and driveway were clear of ice and she had no trouble driving on the roads on her way to the store. The only visible ice that remained was on the sides of the street and it did not affect travel.
When she arrived at Droege's parking lot she observed other cars parked in the two rows of parking at the side of the store. There were several cars in the row in front of her truck, the first row, but plaintiff was not sure if the row was completely filled or not. She estimated that there were quite a few cars in the lot that day, approximately fifteen. She noticed there was some ice on the lot but did not realize how bad it was. She pulled into an open parking space between two cars in the second row of parking. She made her way into the store and did her shopping. Plaintiff noticed that the ground near her truck was completely icy and that the ground closer to the store, in the first row, was icy as well, but patchy. The entrance to the store was clear of ice. When she was ready to leave a store clerk helped her to her truck. He pushed the cart as she held onto it. The clerk loaded her groceries into her truck and then pushed the cart back to the store. Plaintiff made her way around the truck and reached into her pocket to get her keys. It was then that she fell on the ice and injured her left arm. Since the time of the accident, plaintiff has had three surgeries and numerous doctor visits.
Hillermann provided snow removal services to Droege's for approximately thirty years. Pursuant to an oral agreement, Hillermann, on its own initiative, sent employees to service Droege's lot after an initial snow. The service entailed plowing and application of calcium chloride. Hillermann also plowed the lot a second time and reapplied chemicals if Droege's requested further service. In this case, Hillermann plowed and applied calcium chloride on Droege's lot after the initial storm on December 30, and again on December 31, 1990. They also plowed on January 2 and January 3, 1991. On January 4, 1991, there was no additional accumulation of snow or ice and Hillermann was not called to plow the lot. One of Droege's clerks applied more calcium chloride to the lot on January 4, 1991, and using a shovel tried to chip away the ice that covered the second row of parking.
At the close of plaintiffs' case both defendants moved for a directed verdict, arguing the danger posed by the icy parking lot was open and obvious and, therefore, defendants had no duty to take remedial actions or warn of the danger. The trial court granted the motions and plaintiffs appealed.
In point one, plaintiffs argue that the trial court erred in directing a verdict in favor of Droege's because the icy condition was not known or obvious as a matter of law, and further, even if it was a known or obvious danger, the issue of whether Droege's was negligent is a question of fact for the jury. In a negligence action, liability exists only when a defendant's conduct falls below the applicable standard of care established to protect against unreasonable risk of harm. Restatement (Second) of Torts, § 282. The standard of care applicable is a question of law for the courts. Whether a defendant's conduct fell below that standard of care is a question of fact for the jury. The trial court, however, will not submit a case to the jury if there is no evidence to support a finding that a defendant's conduct fell below the standard of care. Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993). We find the evidence supported a finding that the icy condition was an open and obvious danger. However, that determination does not, in and of itself, fully exonerate the landowner of its duty of care. Restatement (Second) of Torts § 343A.
Missouri cases involving a determination of breach of a duty of care by a landowner for an open and obvious danger are often difficult to reconcile. Generally the cases are extremely fact intensive. As a result, we must carefully consider the applicable standard of care and tediously apply our facts to that standard. We notice the applicable standard of care summarized in § 343A of the Restatement (Second) of Torts was adopted in Harris.
In Harris, the Supreme Court cited §§ 343 and 343A of the Restatement (Second) of Torts. Section 343 states:
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.
Section 343A provides a caveat on liability when a condition is found to be "known or obvious." Section 343A states:
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. emphasis added).
Because the icy conditions on the Droege's parking lot were open and obvious, we will look at § 343A and Harris to determine the standard of care that remains with a landowner in this situation. If the risk of harm exists only if an invitee fails to exercise due care, the landowner is relieved of liability and the case is not submitted to the jury. Harris 857 S.W.2d at 227. However, if the landowner should anticipate that the risk of harm exists even if the invitee exercises due care in the face of the open and obvious danger, then the landowner is not relieved of liability. Whether or not the landowner should have anticipated that an invitee would be harmed, despite an open and obvious hazard, is a matter for the jury. Accordingly, we must determine, after reviewing the evidence in the light most favorable to the plaintiff, whether reasonable minds could differ on the issue of anticipation of harm. We find that reasonable minds could differ as to whether Droege's should have anticipated harm to its invitees. In fact, after a thorough examination of the transcript, we find evidence which would support a finding Droege's actually did anticipate harm to its invitees. Hence, the trial court erred in directing a verdict for defendant Droege's. The claim should have been submitted to the jury.
Droege's argues that plaintiff had an alternative route into the store, which was clear of ice. It claims plaintiff failed to exercise due care because she failed to use an available, safe route. It was only this lack of due care, Droege's argues, that created the risk of harm. It asserts, therefore, that it had no duty to anticipate the harm. We disagree because there is no conclusive evidence to suggest that a parking area existed which was totally clear of ice and which had a clear path for an invitee into the store, or that such an area was available to the plaintiff at that time. The evidence reveals that the parking spaces in the second row were completely icy and in the first row they were patchy. The lot was occupied, almost to capacity, leaving few spaces to choose from. Additionally, Droege's employee applied calcium chloride on the parking lot in the morning prior to the injury. He also attempted to chip away the ice in the second row of the parking lot that morning. Furthermore, a Droege's employee helped the plaintiff to her truck as she held on to the grocery cart, which was evidence suggesting a finding Droege's did anticipate...
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