Hindmarsh v. O. P. Skaggs Foodliner, 11160
| Decision Date | 22 October 1968 |
| Docket Number | No. 11160,11160 |
| Citation | 21 Utah 2d 413,446 P.2d 410 |
| Parties | d 413 Rhea D. HINDMARSH, Plaintiff and Respondent, v. O. P. SKAGGS FOODLINER, Defendant and Appellant. |
| Court | Utah Supreme Court |
Christensen, Paulson & Taylor, Cullen Y. Christensen, Provo, for defendant and appellant.
Howard & Lewis, S. Rex Lewis, Provo, for plaintiff and respondent.
Plaintiff, Rhea D. Hindmarsh, sued to recover for injuries sustained when she fell on a patch of ice which was covered by snow in the defendant's parking lot adjacent to its store at First North and Second West in Provo, Utah.
From a jury verdict and judgment thereon of $9,740.49 the defendant states these points on appeal:
Point I: Plaintiff was negligent and her negligence was a proximate cause of her injuries;
Point II: Plaintiff by her actions assumed the risk of any injuries sustained by her;
Points III, IV and V relate to the claimed failure of the court to properly instruct and rule on the subjects of Points I and II.
When all of the verbiage is stripped away, there is presented on this appeal only one central and controlling question: Does the evidence show so clearly and persuasively that the plaintiff was guilty of contributory negligence that the trial court was compelled to so rule as a matter of law? If the answer is yes, the judgment should be reversed. If no, the judgment should stand.
The burden of proving the plaintiff's contributory negligence is upon the defendant. The trial court could properly take the issue from the jury and rule that the plaintiff was contributorily negligent as a matter of law only if the evidence demonstrated that fact with sufficient certainty that all reasonable minds would so find. Conversely, if the evidence is such as to permit reasonable minds to differ as to whether the plaintiff was guilty of contributory negligence, the question is for the jury to decide. 1 When the jury has made its determination, these further basic principles of review apply: Inasmuch as it is the prerogative of the jury to judge the credibility of the witnesses, we are obliged to assume that they believed the evidence which supports their verdict; and therefore, it is our duty to survey the evidence and all reasonable inferences that fairly can be deduced therefrom in the light favorable to the verdict.
On a cold clear winter afternoon, December 31, 1964, the plaintiff, a woman in her mid-fifties, had gone with her husband downtown in Provo to do some shopping errands and to purchase groceries in the defendant's store. They parked their car in the defendant's parking lot; went across the street to other stores; then returned intending to traverse the parking lot and enter the south entrance of the defendant's store. Although there was no snow out on the public sidewalks, the parking lot was covered with snow and ruts made therein by automobiles. She returned to the parking lot and proceeded to walk westward in the driveway portion thereof, watching where she was going, but being concerned about the possible movement of cars, was not looking down at her feet to pay special attention to where she was placing them. After proceeding about eight or nine feet into the parking lot, she slipped and fell causing her great pain. After she had been helped to her feet, she looked down and saw an icy area about two or three inches high and five or six inches in width, with snow upon it, upon which she had slipped.
It was later determined that she suffered a fracture of the hip (of the left femoral neck) which eventually required surgery (a cup arthroplasty). In the opinion of her doctor, this resulted in a permanent limitation of function: of her left hip, 50 per cent, and of her total body, 30 per cent. She incurred doctor's and hospital bills of $1,740.49 for which she sought judgment together with $100,000 as general damage. For all of which the jury awarded the above mentioned sum of $9,740.49.
We first direct attention to the question of assumption of risk. It will be noted from the statement of the issues at the beginning of this opinion that the defendant has not made an issue of the question of its own negligence. It chose rather to treat the condition as one of obvious danger which should have been observed by the plaintiff. In its Request No. 35 it requested the court to instruct:
If there is a danger attending upon the entry to the premises, the owner is entitled to assume that a business visitor will perceive that which should be obvious to her upon the ordinary use of her own senses. There is no duty on the part of the owner to give a business visitor notice of an obvious danger.
The doctrine of assumption of risk is but a specialized aspect of the defense of contributory negligence. This court has repeatedly declared the law in that respect: that it applies only where the plaintiff knew of and appreciated a danger, and had a reasonable opportunity to make an alterative choice, but nevertheless voluntarily exposed himself to the danger in question. 2 It is not shown here that the plaintiff had any such knowledge, nor a reasonable opportunity to make an alternative choice. Therefore, that doctrine does not entitle the defendant to the relief it seeks here.
We refocus our attention on what we have stated above to be the critical and controlling issue in this case: defendant's contention that the plaintiff must be held guilty of contributory negligence as a matter of law. This argument is grounded upon this concededly correct proposition: where there is a danger plainly to be seen, and the plaintiff fails to avoid it, it is ordinarily ruled that she was negligent either in failing to look or in failing to heed. 3 However, this is subject to the qualification that if there is something which justifies plaintiff giving part of her attention elsewhere so that in the total circumstances it can reasonably be believed that she exercised due care, the conclusion that she was guilty of contributory negligence as a matter of law is not compelled. 4
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