Klopp v. Wackenhut Corp.
| Decision Date | 08 January 1992 |
| Docket Number | No. 19318,19318 |
| Citation | 1992 NMSC 8,824 P.2d 293,113 N.M. 153 |
| Parties | Nancy J. KLOPP, Petitioner, v. The WACKENHUT CORPORATION and Trans World Airlines, Inc., Respondents. |
| Court | New Mexico Supreme Court |
Nancy Klopp appealed to the court of appeals from a directed verdict rendered at the conclusion of her case against Trans World Airlines, Inc. and Wackenhut Corporation.. Klopp had sued for personal injuries sustained when she tripped over the stanchion base of a metal detector at an airport security station. Wackenhut operated the security station for TWA. Deferring to this Court to resolve whether the open and obvious danger doctrine has been abrogated by comparative negligence, the court of appeals affirmed the directed verdict.
We issued a writ of certiorari to review, with respect to an obvious danger, the duty owed business visitors by TWA as the occupier of the premises, and by Wackenhut as the operator of the station. We also consider whether it may be inferred from the evidence that either defendant reasonably should have anticipated that persons passing through the station would be distracted from the dangerous condition. We are aided in this appeal by the able amicus curiae briefs of the New Mexico Defense Lawyers Association and the New Mexico Trial Lawyers Association.
Standard of review. Just as the trial court must consider all of the evidence in ruling upon a motion for directed verdict, this Court must do likewise on appeal from a judgment entered pursuant to a directed verdict; both courts must resolve in favor of the party resisting the motion any conflicts or contradictions in the evidence, and the interpretation most favorable to such party must be accepted in the face of reasonable but conflicting inferences deducible from uncontradicted evidence. Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 728-29, 749 P.2d 1105, 1107-08 (), cert. denied, 488 U.S. 822, 109 S.Ct. 67, 102 L.Ed.2d 44 (1988). In applying this standard of review, the principal consideration is to minimize interference with the jury function so as not to erode a litigant's right to trial by jury. Melnick, 106 N.M. at 729, 749 P.2d at 1108. A plaintiff may not be deprived of a jury determination simply because the possibility of a recovery may appear remote; rather, a directed verdict is proper only when there is no pretense of a prima facie case. There must be no substantial evidence supporting one or more essential elements of the case. Id.
Most favorable facts. Accordingly, Klopp summarizes the evidence adduced at trial as follows. On February 27, 1988, she was proceeding through the Albuquerque International Airport to board an airplane when she passed through an airport security station. The station consisted of an upright metal detector, to the side of which was a baggage table. The station was operated by Wackenhut under contract with TWA. The latter owned the equipment and had arranged its particular configuration. The alarm sounded as Klopp stepped through the metal detector. Having activated the alarm, Klopp removed her bracelets, placed them on a tray on the table, and stepped through the detector again. The alarm was not triggered, and she moved to the left to retrieve her bracelets. In so doing, she tripped over the protruding stanchion base of the metal detector. She fell, injuring her left leg and right knee. The stanchion base protruded approximately eighteen inches. Preoccupied with retrieving her belongings, Klopp's attention was distracted from this base.
The issues. In their motions for directed verdict, TWA and Wackenhut argued that the stanchion base of the metal detector was open and obvious and, because there was no reason to believe it constituted a danger, no duty of care was owed to Klopp. TWA relied upon the rule of law set forth in Uniform Jury Instruction (UJI) 13-1310:
An [owner] [occupant] owes a duty to a business visitor, with respect to known or obvious dangers, if and only if:
(1) The [owner] [occupant] knows or has reason to know of a dangerous condition on his premises involving an unreasonable risk of danger to a business visitor; and
(2) The [owner] [occupant] should reasonably anticipate that the business visitor will not discover or realize the danger [or that harm will result to the business visitor, even though the business visitor knows or has reason to know of the danger].
If both of these conditions are found to exist, then the [owner] [occupant] had a duty to use ordinary care to protect the business visitor from harm.
Klopp contends that, under the evidence as recited, fact questions existed whether the protruding stanchion base involved an unreasonable risk of danger, and whether TWA reasonably could have anticipated that a passenger's attention may be distracted from that danger, or that such person would forget the danger she had discovered. Klopp also argues that the open and obvious danger rule as set forth in UJI 13-1310 is, in essence, a contributory negligence bar to her cause of action, and thus, the instruction is incompatible with the doctrine of comparative negligence adopted in Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981). Klopp submits that since abrogation of the open and obvious danger rule would impose no significant new duties and conditions, or take away previously existing rights, retrospective disapproval of the doctrine is appropriate. See Lopez v. Maez, 98 N.M. 625, 632, 651 P.2d 1269, 1276 (1982). TWA takes issue with Klopp's statement of the evidence and argues that the open and obvious danger rule is strictly one of duty without regard to any fault of the business visitor.
TWA submits, further, that Klopp failed to preserve a claim of error in regard to the incompatibility of the open and obvious danger rule with comparative negligence. The record reflects to the contrary that, at the conclusion of Klopp's case in chief and in response to the motion for directed verdict, Klopp argued that any negligence on her part in the face of an open and obvious danger should not eliminate the duty of care owed by the occupier of the premises. "[New Mexico is] a comparative negligence state, so consequently whether or not plaintiff may or may not have been negligent does not eliminate ... the duty the defendant was talking about [in relation to an open and obvious danger]." We agree with Klopp that she raised the question of the jury's role in comparing negligence and apportioning liability and that the issue of the open and obvious danger rule under comparative negligence is properly before this Court.
Duty to warn distinguished. The Defense Lawyers Association argues that, in both premises liability and products liability cases, New Mexico courts long have considered that the open and obvious danger rule applies to that portion of the negligence formula concerning the duty of the landowner or supplier to warn of known, or open and obvious dangers. Skyhook Corp. v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977); Proctor v. Waxler, 84 N.M. 361, 503 P.2d 644 (1972); Garrett v. Nissen Corp., 84 N.M. 16, 498 P.2d 1359 (1972); Villanueva v. Nowlin, 77 N.M. 174, 420 P.2d 764 (1966); Romero v. Kendricks, 74 N.M. 24, 390 P.2d 269 (1964); Burgi v. Acid Eng'g, Inc., 104 N.M. 557, 724 P.2d 765 (Ct.App.), cert. denied, 104 N.M. 460, 722 P.2d 1182 (1986); Jones v. Minnesota Mining & Mfg. Co., 100 N.M. 268, 669 P.2d 744 (Ct.App.1983); Arenivas v. Continental Oil Co., 102 N.M. 106, 692 P.2d 31 (Ct.App.1983), cert. quashed, 102 N.M. 88, 691 P.2d 881 (1984); Michael v. Warner/Chilcott, 91 N.M. 651, 579 P.2d 183 (Ct.App.), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978); Perry v. Color Tile of New Mexico, 81 N.M. 143, 464 P.2d 562 (Ct.App.1970).1 In this case, however, we address the duty issue irrespective of a specific duty to warn. If the nature of the risk would not be made more obvious through the giving of additional warning, then the giving of a warning would be a false issue. But this is not dispositive of whether ordinary care has been exercised to keep the premises safe.
Duty to exercise ordinary care without regard to whether persons invited on premises are themselves negligent in some way. Since deciding the case before us, the court of appeals has filed an opinion inDavis v. Gabriel, 111 N.M. 289, 804 P.2d 1108 (Ct.App.1990), addressing whether recovery against a contractor was barred by a business visitor's knowledge of the risk of injury from debris left in a hallway by the contractor who was remodeling an office building. Initially, the court correctly applied the rule that one who, on behalf of the possessor of realty, creates a dangerous condition is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the realty. Id. at 291, 804 P.2d at 1110; see also Tipton v. Texaco, Inc., 103 N.M. 689, 695-96, 712 P.2d 1351, 1357-58 (1985) (approving Restatement (Second) of Torts Sec. 384 (1964)). However, in applying the rule of liability for a possessor of land, the court of appeals stated that the possessor of land has no duty to take steps that are necessary only to protect business visitors who are negligent. Davis, 111 N.M. at 291, 804...
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