Knudsen v. Merle Hay Plaza, Inc.

• Decision Date: 18 July 1968
• Docket Number: No. 52915,52915
• Citation: 160 N.W.2d 279
• Parties: Marvin L. KNUDSEN, Appellee, v. MERLE HAY PLAZA, INC., Appellant.
• Court: Iowa Supreme Court

Page 279

160 N.W.2d 279

Marvin L. KNUDSEN, Appellee, v. MERLE HAY PLAZA, INC., Appellant.

No. 52915.

Supreme Court of Iowa.

July 18, 1968.

Rehearing Denied Sept. 4, 1968.

Jones, Hoffmann & Davison, by Burns H. Davison, II, Des Moines, for appellant.

Janss, Dreher, Wilson & Adams, by Yale H. Iverson and Anna I. Shinkle, Des Moines, for appellee.

RAWLINGS, Justice.

By action at law plaintiff seeks damages resulting from a fall on an ice covered portion of defendant's shopping center parking lot. Trial to jury, commenced November 21, 1966, resulted in judgment on verdict for plaintiff. Motions by defendant for judgment notwithstanding the verdict, or for new trial, were overruled and it appeals. We affirm.

December 19, 1964, plaintiff and his wife drove to Merle Hay Plaza in Des Moines. After having parked their automobile they went to Sears and Younkers, made purchases in both stores, then started back to the car.

Using a walkway until about half the distance between Bishops and Safeway they proceeded in a northeasterly direction across the lot. There are no sidewalks running through it.

When about 20 to 30 feet from what is identified as Pole East 19, plaintiff saw some women near that fixture. One had fallen, another fell trying to help her and a third was attempting to assist them. Plaintiff handed his packages to Mrs. Knudsen and started over to help these ladies. During this time he also noticed a dirty pile of snow about three feet high around the pole.

Events which followed are best disclosed by quoting the record. To the extent here relevant this is plaintiff's testimony on cross-examination:

'Q. How far back did you see the snow, this snow around East 19 here? A. Well, the snow, of course, the snow set up high.

'Q. Yes. A. I could see that and I couldn't see the ice until I got right up to it.

'Q. Did you see the ice before or after you saw the ladies falling on it? A. Well, it all happened at once.

'Q. Could you tell they were falling on ice? A. Well, I could after I got there.

'If I had continued the direction I was walking, I would have gone past the area of the ice but I turned to my left to help the ladies.

'* * *

'Q. About where were you when you realized they were on ice? A. Well, I imagine that I was just about there (indicating).

'Q. About where that X is? A. No, no. Pretty near to the, to the ice or what is shown there as ice.

'Q. Before you got on the ice you figured out they were falling on ice, didn't you? A. Yes.

'At the time of the fall it was cloudy, snowing a trifle, no lights were on in the plaza or on cars. I did not use my lights to drive home.

'* * *

'Q. Before you got on the ice you could see the ice? A. Yes, right prior to getting on the ice.

'Q. And you realized that these ladies were falling on ice? A. I did at that time.

'Q. Before you got on the ice? A. Right, entering the ice, yes.

'I never stopped to realize or think about it at that particular time because things happened so fast at that time. I was out on the ice a short step or two when I fell.'

At time of plaintiff's fall he was about three or four feet from the women. He fell on his right arm, then worked his way to the edge of the ice patch. As a result of this fall plaintiff sustained personal injuries to be later considered.

The record also discloses other portions of the parking lot, at least in the area here concerned, were free of ice or snow.

Weather reports, in evidence, reveal there was a snowfall December 2, 1964, relatively little thereafter prior to the 19th, melting temperatures until the 16th, followed by three days of constant freezing conditions.

Defendant contends reversible error resulted from, (1) trial court's failure to direct a verdict for defendant on various grounds; (2) giving or failing to give certain jury instructions; (3) award of excessive damages.

I. Our review is confined to errors properly assigned and argued. Rule 344(a)(4) (Third), R.C.P.; Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447, 450; and McDannel v. Parkview Investment Corp., 257 Iowa 1160, 1166, 136 N.W.2d 281.

II. By instruction No. 6 the jury was told plaintiff at time here concerned was a business visitor, an invitee on defendant's land. See Hanson v. Town & Country Shopping Center, Inc., 259 Iowa 542, 144 N.W.2d 870, 873.

No objection was offered as to that portion of the cited instruction and it stands as law of the case. Rule 196, R.C.P.; Clubb v. Osborn, 260 Iowa 223, 149 N.W.2d 318, 323; Nizzi v. Laverty Sprayers, Inc., 259 Iowa 112, 143 N.W.2d 312, 315; and Hurtig v. Bjork, 258 Iowa 155, 157, 138 N.W.2d 62.

III. In fact defendant challenges instruction 6 only because the jury was not told the danger or defect, for which warning is required, must be of such nature as not to be open and obvious to a person acting in the exercise of reasonable care.

Pursuing the matter one more step defendant claims the instruction given is faulty in that the condition existing on the parking lot, of which plaintiff makes complaint, was as open and obvious to him as to defendant, by reason of which there existed no duty on the part of the latter to give warning.

That contention may at one time have found support in Atherton v. Hoenig's Grocery, 249 Iowa 50, 54--55, 86 N.W.2d 252, but is no longer applicable Iowa law in cases such as that now befure us.

This is well explained in Smith v. J. C. Penney Company, 260 Iowa 573, 149 N.W.2d 794, 801, where we said:

'The business-invitee rule announced in the Atherton case is somewhat qualified in Hanson v. Town & Country Shopping Center, Inc., 259 Iowa 542, 144 N.W.2d 870, 873--876 and Meader v. Paetz Grocery Co., (259 Iowa 1101), 147 N.W.2d 211, 215.

'In the former, Mrs. Hanson was injured in a fall on rough, jagged and slick ice formed from snow pushed from a sidewalk adjoining defendant's parking lot. A verdict was directed for defendant on the ground it was not liable for injuries from dangers which are obvious, reasonably apparent or as well known to the person injured as to the owner. We reversed the judgment after pointing out the rule so applied was based in part upon Restatement, Torts, section 343, which was later changed in Restatement, Second, Torts. The later Restatement also adds section 343A which provides:

"(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 * * *' (emphasis added).

'The Hanson opinion also points out that Comment (b) under new section 343A states:

"(b) The word 'known' denotes not only knowledge of the existence of the condition * * *, But also appreciation of the danger it involves. Thus the condition * * * must not only be known to exist, but it must also be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment' (emphasis also added).

'Our holding in the Hanson case is:

"Defects in premises which are in no sense hidden ad could only be classified objectively as open and obvious, may be of such nature that the possessor should know the invitee would not anticipate or guard against them in using the premises within the scope of the invitation. * * *"

In connection with the foregoing see also 31 Tenn.L.Rev. 485; 4 Vill.L.Rev. 256; and 20 Wash. & Lee L.Rev. 152.

Although defendant apparently contends otherwise, Chevraux v. Nahas, Iowa, 150 N.W.2d 78, is neither factually comparable nor does our holding in that case conflict with the views expressed in Smith v. J. C. Penney Company, supra. Chevraux merely applies the concept expressed in Restatement, Second, Torts, section 343A, previously adopted by this court, going to obviousness of condition And appreciation of attendant risk.

Under existing circumstances it is to us apparent defendant's assault upon the subject instruction is without merit.

By the same token we find no error in failure on the part of trial court to give defendant's requested instruction No. 4, premised in large part if not entirely on Atherton v. Hoenig's Grocery, supra.

Furthermore it cannot be said, as a matter of law, plaintiff failed to produce sufficient substantial evidence disclosing existence of a duty owing by defendant to plaintiff and a breach of that duty. See rule 344(f)(2), (10), R.C.P.

This means reversible error would have resulted from a directed verdict for defendant on these issues.

IV. It is also claimed by defendant, trial court erred in not directing a verdict, as requested, upon alleged assumption of risk by plaintiff, and in failing to give the jury an instruction on that asserted defense.

In taking this position it argues plaintiff assumed the risk of injury in that he deliberately and voluntarily elected to act with knowledge of the danger or hazard and appreciation or understanding of the attendant risk. This is the meaning commonly attributed to the doctrine and will be by us so considered in the case at hand. See in this regard Bohnsack v. Driftmier, 243 Iowa 383, 391, 52 N.W.2d 79; Jackson v. Chicago, M. St. P. & P.R.R. Co., 238 Iowa 1253, 1261, 30 N.W.2d 97; 65 A C.J.S. Negligence § 174(1)(2)(3), pages 283-- 298; 38 Am.Jur., Negligence, sections 171--173, pages 845--848; and Restatement, Second, Torts, sections 496A and 496D.

However, some authorities have adopted the view assumption of risk falls into at least three broad classifications. See Prosser, Law of Torts, Hornbook Series, Third Ed., pages 450--451.

Be that as it may, assumption of risk is an affirmative defense and the burden is on the pleader to prove it by a preponderance of the evidence. Rule 344(f)(5), (6), R.C.P.; Reeves v. Beekman, 256 Iowa 263, 270, 127 N.W.2d 95, and citations; and Miller v. Mathis, 233 Iowa 221, 227, 8 N.W.2d 744.

Furthermore, it is seldom a party having such burden establishes it as a matter of...