Hokanson v. Joplin Rendering Co., Inc.

• Decision Date: 11 March 1974
• Docket Number: No. 57259,No. 2,57259,2
• Citation: 509 S.W.2d 107
• Parties: Richard B. HOKANSON, Respondent, v. JOPLIN RENDERING COMPANY, INC., Appellant
• Court: Missouri Supreme Court

Page 107

509 S.W.2d 107

Richard B. HOKANSON, Respondent, v. JOPLIN RENDERING COMPANY, INC., Appellant.

No. 57259.

Supreme Court of Missouri, Division No. 2.

March 11, 1974.

Motion for Rehearing or for Transfer to Court en Banc for

Modification of

Court's Opinion Denied May 13, 1974.

Joseph W. Amick, Kansas City, John R. Martin, Joplin, for respondent; Jackson & Sherman, Kansas City, Martin, Burden & Richart, Joplin, of counsel.

Ross T. Roberts, Malcolm L. Robertson, Joplin, for appellant; Blanchard, Van Fleet, Robertson & Dermott, Roberts & Fleischaker, Joplin, of counsel.

HOUSER, Commissioner.

Action by Richard B. Hokanson against Joplin Rendering Co., Inc. for $100,000 damages for personal injuries. A jury trial resulted in a verdict and judgment for plaintiff for $67,000. Defendant filed a notice of appeal prior to January 1, 1972.

Plaintiff was employed by Ed Hokanson & Sons, Inc., an independent contractor, with which defendant had a contract to provide labor and equipment to install, revise and make operable a continuous process rendering machine. Defendant's business is that of rendering animal by-products and offal into high protein animal feed concentrates. The machinery with which plaintiff was working at the time of his injury, and which he, his employer and associates were attempting to perfect, was located in defendant's plant at Joplin. Plaintiff, alone in the 'cook' room of the plant, ascended a 10-foot wooden ladder in connection with his work. Five to 10 minutes after he climbed up on the ladder the base of the ladder slipped. Plaintiff grabbed for an adjacent beam to keep from falling. Instead of reaching the beam plaintiff's gloved left hand went into the valve box. Rotating machinery engaged his glove and hand and pulled his hand into the machinery, resulting in the loss of his left hand. Plaintiff testified that prior to the time the base of the ladder slipped he made no unusual movement. Plaintiff's theory of liability, submitted to the jury by Instructions Nos. 5 and 6, was (1) that there was grease on the floor so that the floor was not reasonably safe for workers, a condition known to defendant but not known to plaintiff and that defendant failed to use ordinary care to remove the grease, and (2) that defendant furnished plaintiff with a ladder with greasy feet, dangerous for the intended use, a condition known to defendant but not known to plaintiff, and that defendant failed to warn plaintiff of the dangerous condition.

Defendant's first point is that plaintiff, an employee of an independent contractor and business invitee, failed as a matter of law to make a submissible case against defendant, a possessor of land charged with causing bodily injury as a result of an artificial condition thereon.

The applicable rules governing this case appear in Restatement of the Law of Torts, Second (1965), §§ 343 and 343A(1).

§ 343: '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.'

§ 343A(1): '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.' ¹

Fundamentally, the basis of a proprietor's liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. If a proprietor knows, or in the exercise of ordinary care should know, of a dangerous condition of his premises which involves an unreasonable risk of harm to his invitee, and of which the invitee, in the exercise of ordinary care, does not or should not know, a recovery will be permitted against the proprietor. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468. But if the dangerous condition is obvious and known, or in the exercise of ordinary care should be known, by the invitee, actionable negligence is not established and the invitee will not be permitted to recover. Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867; Wilkins v. Allied Stores of Mo., supra (Mo., 308 S.W.2d 623); Schmoll v. National Shirt Shops of Mo., 354 Mo. 1164, 193 S.W.2d 605.' Wilburn v. Southwestern Bell Tel. Co., 382 S.W.2d 49, 53 (Mo.App.1964).

Under the record in this case we declare as a matter of law that there was no legal duty resting upon defendant to exercise reasonable care to protect plaintiff against danger, for the reason that there is no evidence of superior knowledge by defendant of the allegedly dangerous condition of the premises or the appliance. On the contrary, there is an abundance of evidence, including plaintiff's personal testimony, demonstrating beyond any possibility of difference of opinion on the question, that the dangers involved were open, obvious and apparent for all to see and that plaintiff's personal knowledge and realization of the risk of harm was equal to (if not greater than) that attributable to defendant. In gauging defendant's duty or lack of duty to this invitee we apply these rules: "'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." 65 C.J.S. Negligence § 50, p. 541. (Citing Missouri decisions.) * * * "These decisions mean that an inviter is under no duty to protect an invitee who is in an equal position to protect himself. Where the danger is obvious or known to the invitee he consents to the risk and the inviter owes no duty."' Sellens v. Christman, 418 S.W.2d 6, 8(2) (Mo.1967); Coleman v. Buehner, 444 S.W.2d 16 (Mo.App.1969); Dixon v. General Grocery Co., 293 S.W.2d 415, 418(2) (Mo.1956). The conditions of the floor and ladder were not in the nature of hidden dangers, traps, snares, pitfalls, etc. The existence of these conditions was either testified to by plaintiff and therefore conclusively shown to have been known to plaintiff, or unquestionably under the evidence was as readily apparent to him as to the representatives of defendant corporation.

The general conditions of the employment; the prevalence and distribution of grease throughout the plant, on the machinery, on the clothes of the men, on the appliances and floor, arising out of the regular operations of the plant, as well as in the course of trial runs of 'product' made by employees of the independent contractor, were well known to plaintiff. The particular condition of the ladder and that portion of the floor of the cook room where the ladder was set and used on the morning of May 17, 1968, and the dangers and risks involved in using the ladder at that time and place, were obvious to plaintiff and were not only reasonably apparent to plaintiff but were as well known to him as to defendant. Plaintiff had worked in this plant as early as January, 1967. He worked there again intermittently during the summer of 1967. He began working there on a regular basis (several times a week) in the fall of 1967. He had been working there regularly for six months prior to May 17, 1968, the date of accident. He worked there on Monday, Tuesday, Wednesday and Thursday before the Friday on which the accident occurred. Plaintiff's personal testimony reveals his intimate knowledge of the entire situation. He could trace the plant operation from the time the animal offal was unloaded at the dock, through the feather room, the cookers, presses, etc. to the final feed concentrate. He knew that defendant's product was greasy. He was constantly working around defendant's large vats full of fatty grease. He knew that when the men shoveled cooked meat into the presser they sometimes spilled it on the floor; that hot steam containing grease arose from the cooker and vats; that it condensed and the condensate would gather in cool places; that the concrete floor was a cool surface; that occasionally the product would spill or fall on the floor. He had seen grease 'pop out and go across the room.' He knew that grease was there; that it was 'all over'; that one worked around grease 'all time'; that grease was on the machinery all around him; that grease was on the floor, including the place where the ladder was placed; that everybody worked in it that grease was 'simply one of the conditions which you worked in out there'; that the grease 'was a factor out there,' against which he 'took precautions.' He testified to the trackage of grease; stated that if you walked around in the cook room you would get it on your feet. He was aware of the regular weekly cleaning of the plant by defendant's employees. He knew that in this cleaning operation they were cleaning up 'all this condensate stuff on the floor' and 'whatever they would spill.' As to the ladders, his coemployee and witness Harold Smith testified that he and plaintiff used the ladders 'at least once a day.' The ladders belonged to defendant, were kept around the plant, and their use by employees of the independent contractor was known by defendant's manager and...