Kremer v. Carr's Food Center, Inc.
| Decision Date | 22 December 1969 |
| Docket Number | No. 1131,1131 |
| Citation | 38 A.L.R.3d 1,462 P.2d 747 |
| Parties | Ernest F. KREMER, Appellant, v. CARR'S FOOD CENTER, INC., Appellee. |
| Court | Alaska Supreme Court |
James K. Tallman, Anchorage, for appellant.
George N. Hayes, and John K. Brubaker, of Delaney, Wiles, Moore, Hayes & Reitman, Anchorage, for appellee.
Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ., and FITZGERALD, Superior Court Judge.
The central issue in this appeal concerns the trial court's entry of a directed verdict against appellant Ernest F. Kremer.
In the superior court, Kremer instituted a personal injury action against appellee Carr's Food Center, Inc. In his complaint, Kremer alleged that he was a business invitee of Carr's and while walking in the latter's parking lot slipped and fell as a result of accumulations of ice and snow which had been permitted to form into 'deep ruts and sharp ridges' which were dangerous. 1 After Kremer had rested his case in chief, Carr's moved for a directed verdict. The gravamen of Carr's motion was that 'natural accumulations of ice and snow' cannot furnish the basis for a claim of negligence, particularly in the circumstance where such ice and snow conditions are as well known to the plaintiff as to the defendant. The superior court granted Carr's motion and entered judgment against Kremer. The basis of the trial court's decision to grant the motion for directed verdict is disclosed in the following portions of the court's oral decision.
(If the) hazardous condition had been created by the defendant * * * then the case would have gone to the jury. But, in the circumstances of the natural accumulation then I believe that it goes to the-to the business invitee as well as to a licensee. The law of the case is just against the plaintiff's position at this point with the evidence in the case. So, I'm obliged to grant the motion for a directed verdict.
We hold that the trial court was mistaken.
Shortly prior to midnight on March 17, 1966, Kremer, then 66 years old, walked to Carr's supermarket in order to purchase food. In the course of attempting to traverse the parking lot of Carr's supermarket, his attention was drawn to an approaching vehicle. According to Kremer, he 'was concerned about it because it was late at night and (he) * * * didn't know whether the driver would see (him) * * *.' The approaching car did stop and at approximately the same time, Kremer slipped in a rut, fell, and suffered personal injuries for which he brought suit against Carr's. 2
According to Kremer's testimony, the rut which caused his fall was 6 inches deep and was located approximately 20 feet from the main entrance to Carr's supermarket. 3 The rut was apparently created by the action of automobile tires on the ice during the day when the ice was in a melted condition. It was also established that the parking lot at the time in question had not been scraped by Carr's; that no salt or sand had been applied to the ice in the parkng lot; and that no employees were ordered to, or were engaged in, clearing the parkng lot of ice and snow on the evening in question. 4 Kremer's evidence further established that the surface of the parking lot was 'extremely slick' and that at least one employee of Carr's had slipped and fallen on it that day. Kremer also testified that he could distinguish the surface conditions of the parking lot because the area was lit, and that he knew the surface was icy but he had not seen the ruts in the ice before falling. 5
Determination of whether the trial court correctly ruled on Carr's motion for directed verdict requires resolution of the issue of whether Kremer's evidence raised a jury question as to a breach by Carr's of any duty of care it owed to Kremer. We have concluded that Kremer's evidence did present a jury question, and that the trial court therefore erred in determining the issue of liability as a matter of law. This holding follows from our decision in Chugach Electric Association v. Lewis 6 where, in regard to the duty owed by a possessor of land to a business invitee, we said the criteria of Restatement (Second) of Torts Section 343 (1965) is determinative. 7 Section 343 provides as follows:
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.
Section 343 is controlling here. A jury could have found: (a) that Carr's possessed the parking lot and knew the condition of its surface, (b) that Carr's should have realized that this condition involved an unreasonable risk of harm to its business invitees, (c) that Carr's should have expected that its business invitees would not discover or realize the danger, or should have anticipated that they would fail to protect themselves against a danger they did discover or realize, or should otherwise have anticipated harm to invitees despite the fact that the danger was known or obvious to them, 8 and (d) that Carr's failed to exercise reasonable care to protect business invitees, such as Kremer, from the dangerous surface conditions in its parking lot.
In reaching these conclusions, we have rejected Carr's contention that no cause of action can be maintained by a business invitee against a landowner for injury resulting from a slip and fall occasioned by natural accumulations of ice and snow. 9 We have also declined to adopt Carr's argument to the effect that any duty of care owed by a possessor of land to a business invitee is discharged by virtue of the invitee's knowledge of the dangerous condition of the land. 10 Finally, our holding in the case at bar reflects the view that none of our own prior precedents preclude the result reached here.
Concerning this last point, Carr's contends that a trilogy of past slip and fall decisions rendered by this court requires us to sustain the trial court's grant of a directed verdict against Kremer. Ogden v. State, 11 Morrison v. City of Anchorage, 12 and Hale v. City of Anchorage 13 comprise this trilogy. In the Hale case, this court concluded that
a municipality is not liable for injuries sustained by persons due to ice and snow on sidewalks, where climatic conditions such as we have discussed are prevalent and where the presence and condition of the ice and snow are the result of natural causes. We do not pass upon situations where ice and snow conditions may be due to unnatural or artificial causes. 14
Morrison adhered to Hale. In Morrison we held, in a pedestrian slip and fall case, that the city of Anchorage was 'not negligent for not having taken remedial measures with respect to natural accumulations of ice and snow on its sidewalks.' 15 In Ogden v. State, 16 the trial court found that Ogden was injured as a result of his own negligence when he slipped and fell on some ice at the Fairbanks International Airport. On appeal, the trial court's findings pertaining to Ogden's contributory negligence were affirmed. In regard to Ogden's contention that the trial court erred in holding that the state was not negligent in permitting the icy condition to exist, we said, 'We need not decide this issue, for even if appellee were negligent appellant's contributory negligence would bar his recovery.' 17
We believe that the natural-unnatural accumulation standard of Hale and Morrison is inapplicable to the case at bar. 18 Unlike the business invitee-private possessor of land situation present in the case at bar, Hale and Morrison involved the duty of a municipality toward a licensee. In Hale v. City of Anchorage, 19 this court found that the city had no duty to clear icy, rutted sidewalks, because it could not possibly do so in time to avoid rough, uneven ridges, and because even the most diligent efforts would have left a smooth surface of ice more dangerous than the sidewalk's original condition. It is no small significance that in the Hale case it was emphasized that:
The City of Anchorage has 80 miles of paved sidewalks and about 178 miles of unpaved walks, and hundreds of curbcuts or driveways such as the one involved in this case. It would be an impossible task for the city to clean all of the sidewalks and curbcuts before pedestrian and vehicular traffic caused ice to form in rough and uneven ridges. 20
Thus far the natural-unnatural accumulation of ice and snow rule has been limited to cases involving the duty owed by municipalities to licensees who, as a class, must take the condition of the land as the possessor himself uses it. 21 We decline to extend this rule to the business invitee-private possessor of land situation. Unlike the licensee, the invitee enters upon the possessor's land accompanied by an implied representation that 'the land has been prepared and made ready and safe for his reception.' 22 A business invitee may be entitled to the undertaking of affirmative steps by the possessor of land in order to promote the invitee's safety. 23 We discerna significant distinction between the standard of care which is owed by municipalities in Alaska to licensees upon their streets and sidewalks, and that owed by private possessors of land, such as Carr's, to a business invitee. Alaska's climatic conditions do not metamorphize all risks arising from ice and snow conditions into reasonable risks for the business invitee. Nor are we persuaded by appellee Carr's policy argument that in Alaska it would result in unreasonable costs to the private-commercial possessor of land to require the possessor to clear ice and snow, or otherwise remedy conditions which amount to unreasonable risks of harm to its business invitees. The mere fact...
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