Janis v. Nash Finch Co.

• Citation: 2010 SD 27,780 N.W.2d 497
• Decision Date: 17 March 2010
• Docket Number: No. 25261.,25261.
• Parties: Francis JANIS, Plaintiff and Appellant, v. NASH FINCH COMPANY d/b/a Prairie Market, Defendant and Appellee.
• Court: Supreme Court of South Dakota

780 N.W.2d 497

2010 SD 27

Francis JANIS, Plaintiff and Appellant, v. NASH FINCH COMPANY d/b/a Prairie Market, Defendant and Appellee.

No. 25261.

Supreme Court of South Dakota.

Argued January 13, 2010.

Decided March 17, 2010.

COPYRIGHT MATERIAL OMITTED

George J. Nelson of Abourezk Law Firm, P.C., Rapid City, South Dakota, Attorney for plaintiff and appellant.

Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, South Dakota, Attorney for defendant and appellee.

SEVERSON, Justice.

¶ 1. Francis Janis (Janis) sued Nash Finch Company (Prairie Market) for its alleged negligent failure to exercise reasonable or ordinary care to make its premises safe for him. The trial court granted Prairie Market's motion for summary judgment on the basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. Janis appeals. We reverse and remand.

BACKGROUND

¶ 2. Prairie Market is a supermarket in Rapid City, South Dakota, owned and operated by Nash Finch Company. The morning of January 28, 2004, was very cold, and a northeast wind was blowing. At approximately 7:30 a.m., Janis, a janitor for Youth and Family Services in Rapid City, came to Prairie Market to purchase food for breakfast. He was wearing rubber-soled work boots. The sidewalk leading to Prairie Market was clear of ice and packed snow. Janis walked through the open sliding glass door on the west end of the Prairie Market entryway and stepped onto a commercial rug on the tile floor immediately inside the door. Upon Janis's second step onto the rug, it slid from under his feet, and he began to fall. Janis reached for a stack of shopping baskets in an attempt to break his fall, but they gave way. He fell awkwardly, twisting his knee and landing on his back. When Janis attempted to get up, he fell a second time. Janis put his hand under him as he fell this second time and felt a patch of ice on the floor. This patch of ice had been hidden under the rug.

¶ 3. Beverly Nagel, Prairie Market's head cashier, witnessed Janis's fall. When Janis got up, he approached Nagel to speak to her. He showed her his bruised knuckles and told her that his wrist was injured. Nagel walked to the entryway to look at the area where Janis had fallen. She saw that the rug inside the door on the west end of the Prairie Market entryway was out of position as it slid forward during Janis's fall. She also saw a patch of ice two feet by one foot on the floor where the rug had been. Nagel wrote a narrative report of Janis's fall and notified management of the incident. Janis went to the hospital for treatment of his injuries, but returned to Prairie Market to speak with Prairie Market management later in the day. When Janis returned to Prairie Market, "wet floor" warning signs and ice melt had been placed near the door on the west end of the entryway.

¶ 4. It is not clear how the patch of ice formed under the rug. At the time of Janis's fall, Prairie Market contracted with a floor maintenance company for overnight cleaning of the tile floors in the store, including the entryway. The floor maintenance company swept and scrubbed the floors each night. It has been suggested that floor maintenance company employees placed the rug on the wet tile floor and that water under the rug froze as a result of the cold temperature, wind, and frequent opening of the sliding doors on the morning of Janis's fall. It has also been suggested that moisture tracked into the store by customers and employees accumulated under the rug and froze. There was no evidence that anyone other than Janis had ever fallen on a patch of ice inside the Prairie Market entryway.

¶ 5. Janis initiated this lawsuit against Prairie Market in January 2007. He alleged that he entered Prairie Market as a business invitee and that Prairie Market failed to exercise reasonable or ordinary care to make its premises safe for him. After significant discovery, Prairie Market moved for summary judgment. The trial court concluded that the risk of harm was not foreseeable because no prior similar incidents had occurred on the premises. The trial court granted Prairie Market's motion for summary judgment on that basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. Janis appeals.

STANDARD OF REVIEW

¶ 6. This Court's standard of review of a grant or denial of a motion for summary judgment is well settled. "In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we determine whether the moving party has demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law." Dykstra v. Page Holding Co., 2009 SD 38, ¶ 23, 766 N.W.2d 491, 496 (citations omitted). "The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party." Id. "The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists." Id.

¶ 7. "Summary judgment is proper in negligence cases if no duty exists as a matter of law." Pierce v. City of Belle Fourche, 2001 SD 41, ¶ 8, 624 N.W.2d 353, 355 (citing Peterson v. Spink Elec. Coop., Inc., 1998 SD 60, ¶¶ 1-2, 578 N.W.2d 589, 591). "Questions of negligence, contributory negligence, and assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues." Rowland v. Log Cabin, Inc., 2003 SD 20, ¶ 14, 658 N.W.2d 76, 80 (quoting Pettry v. Rapid City Area Sch. Dist., 2001 SD 88, ¶ 7, 630 N.W.2d 705, 708 (quoting Pierce, 2001 SD 41, ¶ 22, 624 N.W.2d at 356-57)). "It is only when reasonable men can draw but one conclusion from facts and inferences that they become a matter of law." Id.

ANALYSIS AND DECISION

¶ 8. "Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury." Stone v. Von Eye Farms, 2007 SD 115, ¶ 6, 741 N.W.2d 767, 770 (quoting Pierce, 2001 SD 41, ¶ 22, 624 N.W.2d at 356-57). "The existence of a duty owed by the defendant to the plaintiff, which requires the defendant to conform to a certain standard of conduct in order to protect the plaintiff against unreasonable risks, is elemental to a negligence action." Poelstra v. Basin Elec. Power Coop., 1996 SD 36, ¶ 7, 545 N.W.2d 823, 825 (quoting Erickson v. Lavielle, 368 N.W.2d 624, 626 (S.D.1985)). While a jury generally determines whether a duty has been breached, "the existence of a duty is a question of law to be determined by the court." Small v. McKennan Hosp. (hereinafter Small I), 403 N.W.2d 410, 413 (S.D.1987) (quoting Barger for Wares v. Cox, 372 N.W.2d 161, 167 (S.D. 1985)).

¶ 9. This Court has retained the common-law classifications of trespasser, licensee, and invitee in determining the duty a landowner owes the entrants on his land. Andrushchenko v. Silchuk, 2008 SD 8, ¶ 22, 744 N.W.2d 850, 857-58 (citing Musch v. H-D Elec. Coop., Inc., 460 N.W.2d 149, 150 (S.D.1990)). A business invitee is "a business visitor `who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.'" Rowland, 2003 SD 20, ¶ 10, 658 N.W.2d at 79 (quoting Small v. McKennan Hosp. (hereinafter Small II), 437 N.W.2d 194, 199 (S.D.1989) (quoting Restatement (Second) of Torts, § 332 (1965))). In this case, Janis entered Prairie Market to conduct business on the premises and was therefore a business invitee.

¶ 10. "As a general rule, the possessor of land owes an invitee or business visitor the duty of exercising reasonable or ordinary care for the benefit of the invitee's safety, and the possessor is liable for the breach of such duty." Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986) (citing Stenholtz v. Modica, 264 N.W.2d 514, 516 (S.D.1978); Norris v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 74 S.D. 271, 273, 51 N.W.2d 792, 793 (1952); Restatement (Second) of Torts, § 343 (1965)). The "duty of reasonable and ordinary care requires keeping the property reasonably safe for the benefit of the invitee." Id. at 313 (citations omitted).

¶ 11. Prairie Market argues that no liability can attach to a landowner unless he had knowledge of the allegedly dangerous condition on his property. Prairie Market cites Parker v. Casa Del Rey-Rapid City, Inc., wherein this Court stated: "Reasonable and ordinary care requires a landowner to keep his premises safe and warn any invitee ... of any `concealed, dangerous conditions ... known to him.'" 2002 SD 29, ¶ 7, 641 N.W.2d 112, 116 (quoting Mitchell, 396 N.W.2d at 313) (emphasis added). Prairie Market also relies on Kryger v. Dokken: "It is necessary that it be established that the possessor had knowledge of the presence of a dangerous condition of his premises or that the condition existed for such a period of time as to justify an inference that he had knowledge of its existence." 386 N.W.2d 481, 483 (S.D.1986) (quoting Norris, 74 S.D. at 273, 51 N.W.2d at 793). Prairie Market contends that it did not know of the dangerous condition on its premises and therefore did not owe Janis a duty of reasonable or ordinary care.

¶ 12. Some confusion exists in South Dakota because the duty a landowner owes invitees is essentially two-fold. The general duty of reasonable or ordinary care that a landowner owes invitees "includes the duties owed to licensees: to warn of concealed, dangerous conditions known to the landowner and to use ordinary care in active operations on the property." Mitchell, 396 N.W.2d at 313-14 (emphasis added and citations omitted). See Luke v. Deal, 2005 SD 6, ¶ 15, 692 N.W.2d 165, 169 (quoting Luther v. City of Winner, 2004 SD 1, ¶ 19, 674 N.W.2d 339, 347) (additional citation omitted). "The duty to warn is a subpart of the duty to keep the property reasonably safe," and "the duty to keep the property reasonably safe is, in turn, a subpart of the general duty to exercise reasonable care" for the benefit of...