Ives v. Swift & Co.

• Decision Date: 19 January 1971
• Docket Number: No. 54352,54352
• Citation: 183 N.W.2d 172
• Parties: Glen W. IVES, Jr., Appellee, v. SWIFT & COMPANY, a Corporation, Appellant.
• Court: Iowa Supreme Court

Page 172

183 N.W.2d 172

Glen W. IVES, Jr., Appellee, v. SWIFT & COMPANY, a Corporation, Appellant.

No. 54352.

Supreme Court of Iowa.

Jan. 19, 1971.

Rehearing Denied March 9, 1971.

Paul W. Deck and Robert J. Larson, Sioux City, for appellant.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellee.

STUART, Justice.

Plaintiff brought this action for damages against Swift & Company to recover for personal injuries sustained when he stepped into a 'hot well' tank on its premises and was severely burned. The jury returned a verdict in favor of plaintiff for $50,000, the amount asked. Defendant has appealed.

Plaintiff, a chemical engineer, is technical director for Iowa Beef Packers (I.B.P.). I.B.P. had arranged to purchase blood from Swift for use in its dry animal feed operation. It was to pick the blood up at Swift's Sioux City plant. Robert L. Peterson, an I.B.P. vice president, told a Swift official that someone from I.B.P.'s management would come with the first truck to see that all details were handled, the operation came off smoothly and a proper analysis of the blood was obtained. Plaintiff was selected to take samples of the blood and 'to evaluate the project in an overall sense'. Peterson testified: 'We wanted to see the kind of facilities we were getting involved with so that in the event there was any problem in the future, that our people would be able to discuss them with the management of Swifts. He was to look over the facilities at Swifts that they would come in contact with in order to get this blood.'

When plaintiff arrived at Swift's plant on September 27, 1967 in a truck driven by Kyle Dykstra, they were passed through a guarded gate. Mr. Koeppel, supervisor of rendering operations at Swift's plant, directed them to the loading area. The truck was backed into loading position beneath the loading pipe which extended from the west wall of the building across the 'hot well' tank near its north end. The tank was constructed of cement and was about four to four and one-half feet high and 46 feet long. A rough plat is included to help visualize the scene.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Koeppel climbed on the tank-trailer, inserted a loading hose and signaled a man in the building to start the pump. After failing to attract the pump operator's attention, he climbed down from the truck and walked around the south end of the building and entered a door on the south side.

Ives followed to ask him where a restroom was located. When Ives reached the door on the south side, Koeppel was not in sight. He decided to return to the truck and wait for Koeppel's return. He intended to climb onto the trailer from what he thought was a loading dock, but was, in reality, the 'hot well'.

The hot well is used to retrieve grease in the rendering operation. Hot water and steam carrying grease are discharged into the tank near its north end. The grease comes to the top and forms a crust. The hot water empties into a sewer. The grease is skimmed off the top near the south end of the tank. The sides of the tank were about eight inches higher than the surface of the crusted grease.

Ives reached the south wall of the tank by walking along the west side of the building, mounting a wooden platform and taking an 'easy step' from there onto the wall of the hot well. He testified: 'As I was walking across the wooden structure I could see what lay ahead of me, which was the wooden structure, this space or gap, and then what appeared to be a concrete surface which was somewhat lower than the sides of this concrete wall; approximately eight inches or thereabouts lower, which was an easy step down.'

On cross-examination he testified: 'I know I stopped and looked. I know I viewed the surface. I can't tell you exactly at what point it was I did stop and look. I did take a careful enough look to know I thought that was concrete. I can't tell how far down the dock I looked. I am sure I looked at more than the one-step area in front of me. I do remember steam being in the vicinity. As I recall, it was on ahead of me in the area of the truck. * * *'

As the mixture of water, steam and grease was discharged into the tank, it created a cloud of water vapor over the north end. Plaintiff did not realize what was causing the cloud. He testified: 'There was an operation going on along the side of this building which released a fog cloud into the air and visibility was obscured in the vicinity of the truck, which was some distance ahead of me, but I could see quite clearly most of the way to the truck.'

On cross-examination he added: 'It is not uncommon or unusual to see a water vapor cloud around a packing plant, and they don't represent a hazard to me. I don't consider it a hazard in itself. I have been in the midst of these clouds and they are not hot. There is a distinction between steam and water vapor. This could be described more as a cloud of fog.'

The following quote is a succinct statement of what happened. 'The surface of this hot well appeared to be concrete. It wasn't hot; it was colored, scummy and crusty. I determined it was concrete before I stepped onto it. I took one step and learned better. It would not support my weight.'

Plaintiff's entire body with the possible exception of his head was submerged into this hot mixture and he suffered severe and extensive burns.

I. The trial court submitted the question of the status of plaintiff on defendant's premises to the jury. Defendant claims that as a matter of law plaintiff exceeded the scope of his invitation and was therefore not a business invitee at the time and place of his injury. Wilson v. Goodrich (1934), 218 Iowa 462, 467--469, 252 N.W. 142, 144--145.

The trial court was correct in letting the jury determine whether plaintiff was exceeding the scope of his invitation at the time of his injury. The pipe through which the blood was to be transferred to the truck extended across the hot well tank at its north end. The truck was backed up against the tank. Plaintiff on returning from the building stepped into the tank at the south end. He planned to step from what he mistook for a loading dock onto the trailer where the loading was taking place. We cannot say, in view of the broad purpose of his business visit that he exceeded the scope of his invitation as a matter of law by being at the south end of the tank. Sullivan v. First Presbyterian Church (1967), 260 Iowa 1373, 152 N.W.2d 628; Holmes v. Gross (1958), 250 Iowa 238, 93 N.W.2d 714; Nelson v. F. W. Woolworth & Co. (1930), 211 Iowa 592, 231 N.W. 665.

The facts here are different from those in Wilson v. Goodrich, supra. That case would have been comparable if plaintiff's injury had occurred while he was wandering around inside the building looking for a restroom. Here the injury occurred in the vicinity of the portion of the premises to which plaintiff had an unquestioned invitation. It was proper to allow the jury to determine whether the scope of the invitation was exceeded by his presence there.

As we have decided the issue adversely to defendant on the merits, we need not decide whether the alleged error was properly raised below.

II. Defendant claims the facts here, as a matter of law, do not support a finding that it failed to exercise reasonable care to make the premises reasonably safe for plaintiff's use for the purpose of the invitation in that it had no duty to anticipate that a reasonable man would not see the conditions as they existed and appreciate the danger they presented.

The trial court treated the issue as one of foreseeability. Defendant views the matter as one of the primary negligence of defendant under the rule set out in section 343, Restatement, Second, Torts, which provides: '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.'

Plaintiff supports the trial court's position and responds to defendant's argument also. In our opinion the questions overlap and both are involved.

A. Under our cases 'it is sufficient to constitute negligence that the person charged should have foreseen his act or omission would probably result in injury of some kind to some person--he need not have foreseen the particular injury that resulted'. Kaffenberger v. Holle (1946), 237 Iowa 542, 547, 22 N.W.2d 804, 807, and citations; Priebe v. Kossuth County Agricultural Assn., Inc. (1959), 251 Iowa 93, 100, 99 N.W.2d 292, 296; McGrean v. Bos Freight Lines (1949), 240 Iowa 318, 322, 36 N.W.2d 374, 377.

When this rule is applied to all the facts and circumstances of this case, we believe a jury question was raised as to whether defendant should have foreseen that the construction of a cement vat of this size, shape and height at a location where invitees would be present to load tank trailers of blood would probably result in some injury to some person when it contained a hot substance with the deceptive appearance of solidity, in the absence of warnings or protective measures of some kind.

B. In Hanson v. Town & Country Shopping Center, Inc. (1966), 259 Iowa 542, 546--549, 144 N.W.2d 870, 874--875, we approved of sections 343 and 343A Restatement, Second, Torts. Since that decision we have attempted to apply section 343 to varying factual situations. Capener v. Duin (Iowa, 1969), 173 N.W.2d 80, 83--85; Weidenhaft v. Shoppers Fair (Iowa, 1969), 165 N.W.2d 756, 759; Knudsen v. Merle Hay Plaza, Inc. (Iowa, 1968), 160 N.W.2d 279, 282; Chevraux v. Nahas (1967), 260 Iowa 817, 822--823, 150 N.W.2d 78, 81; Smith v. J. C....