Lindstrom v. Mason City

• Decision Date: 11 February 1964
• Docket Number: No. 51215,51215
• Citation: 256 Iowa 83,126 N.W.2d 292
• Parties: Dorothy LINDSTROM, Appellee, v. MASON CITY, Appellant.
• Court: Iowa Supreme Court

Page 292

126 N.W.2d 292

256 Iowa 83

Dorothy LINDSTROM, Appellee, v. MASON CITY, Appellant.

No. 51215.

Supreme Court of Iowa.

Feb. 11, 1964.

William Pappas, Mason City, for appellant.

Westfall, Laird & Burington, Mason City, for appellee.

SNELL, Justice.

The sole question before us is the distinction, if any, between the responsibility of a city to persons using municipal facilities such as parks and the liability of other property owners to invitees.

Under our cases there is a clear line of demarcation between the responsibility of a city and that of a business proprietor or owner to an invitee. The limitations on liability appearing in business invitee cases do not appear in cases against a city.

Defendant, City of Mason City, is a municipal corporation. The city owns and operates a public library. To the south of the library building, but on the library grounds, is a garden and wooded area open to the public. In this garden area there is a pathway covered with loose crushed rock and steps built of rough hewn stones leading to a lower level.

On May 24, 1962 plaintiff, a resident of Mason City, accompanied by her daughter, visited the library. It was their first visit there. One of the librarians mentioned with pride the gardens and how to get there. Plaintiff and her daughter began an unattended tour of the garden area. While descending the rough hewn stone steps plaintiff fell and was injured. To recover for her injuries plaintiff sued the city alleging six specifications of negligence incident to the building and maintenance of the steps by the city, proximate cause, her own freedom from contributory negligence and damage.

The case was tried and submitted to a jury. The court's instruction #6 1/2 was as follows:

'The Court will in this instruction state to you some general rules of law and will in later instructions attempt to assist you in applying these gneral rules to the facts in this case.

'The first general rule of law is that the owner of premises is required to use reasonable care to protect from injury those who come upon the premises at his invitation. This rule, however, is subject to some limitations which include:

'(a) The duty to keep premises safe for invitees applies only to defects or conditions which are in their nature hidden dangers which are not known to the invitee and which would not be observed by him in the exercise of ordinary care.

'(b) The invitee assumes all normal, obvious or ordinary risks attendant upon the use of the premises.

'(c) The owner is under no duty to alter or reconstruct premises so as to obviate known and obvious dangers.

'(d) An owner is not liable for injuries which may be caused by dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner.

'These limitations, however, may not be construed to relieve an owner from the duty to use reasonable care to protect an invitee from injury which may arise from hidden dangers or from dangers which are unknown to the invitee, or which could not be discovered by the invitee by the use of reasonable care.'

Plaintiff took timely exceptions to the giving of the instruction. The jury returned a verdict for defendant.

In a motion for new trial plaintiff attacked the propriety of this instruction in a case against a city. The trial court in a carefully considered opinion concluded that precedent if not logic made the limitations in an ordinary invitee case improper in a case against the city. A new trial was ordered and defendant city appealed.

I. What is referred to as the 'open and obvious rule' limiting the responsibility of an owner or occupier of premises to an invitee has been well settled. "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers." 65 C.J.S. Negligence § 50; Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252; see also Corrigan v. Younker Brothers, Inc., 252 Iowa 1169, 1175, 110 N.W.2d 246.

The court's instruction #6 1/2 quoted supra, was admittedly drawn in conformity with and to state the limit of responsibility of merchants to business invitees under these cases.

The same limitations do not apply to all persons injured on the property of another. We have recently held that a higher degree of care is required in landlord-tenant common-way area matters than in ordinary business invitee cases. Bostian v. Jewell, Iowa, 121 N.W.2d 141, 144.

As the trial court correctly observed our court has not held that the limitations recognized in business invitee cases are available to a city.

The nonavailability to a city has not been expressly stated but is clear from our precedents. Most of the cases involve questions of contributory negligence, but it is clear that the conditions under which liability exist are less favorable to a city than to an individual owner or operator.

Beach v. City of Des Moines, 238 Iowa 312, 26 N.W.2d 81, exhaustively analyzes the authorities involving knowledge of the dangerous condition of a sidewalk.

In the Beach case the plaintiff knew of the condition of the sidewalk. She thought that with care she could traverse it without harm. She actually took a calculated risk and lost. The condition of the sidewalk was open and obvious, but the so-called open and obvious rule followed in invitee cases was not recognized in the city's behalf.

In Reuter v. City of Oskaloosa, 253 Iowa 768, 113 N.W.2d 716, plaintiff sued the city for damages following a fall over a ramp extending onto a sidewalk. There was no hidden danger. The hazard, if it was such, had existed for ten years. We held plaintiff entitled to have the question of negligence created by the condition submitted to a jury.

In Engman v. City of Des Moines, Iowa, 125 N.W.2d 235 we considered the liability of the city for an injury resulting from a defect in a city street. It was dark and there was no claim that plaintiff assumed the risk of an open and obvious danger so the facts differed from the case at bar. We did, however, quote with approval authorities holding that it is the unquestioned rule of law in this state that cities and towns are required to keep all streets and public places within their limits, and open for public use, free from dangerous obstructions and pitfalls.

In Cox v. City of Des Moines, 235 Iowa 178, 16 N.W.2d 234 (second appeal) plaintiff was injured when he fell into a pit near a building in a city park. Recovery was denied when it appeared that plaintiff was not where he should have been and at a time when the park was closed for the night. These statements from the opinion are significant.

'* * * plaintiff was an invitee to the club house and as such the city owed to him the duty of exercising due care in maintaining the premises in a reasonably safe condition. (Citations)

'In order for plaintiff to recover upon the theory of an injured invitee not contributorily negligent, it was incumbent upon him to show (1) that he was injured during the time covered by the invitation (2) at a place where he was invited and (3) the unsafe condition of the premises, negligently allowed to exist, that was the proximate cause of the accident. * * *' (Loc. cit. 182, of 235 Iowa, loc. cit. 236 of 16 N.W.2d)

An annotation disclosing pronouncements from 24 different jurisdictions on municipal liability for outdoor steps appears in 92 A.L.R.2d 469. Iowa is listed among the jurisdictions where the municipality is held liable. The cited case was decided in 1895 and the problem was not exactly the same as in the case before us. It appears, though, that for many years our court has recognized the high degree of responsibility of a city.

The law recognizing municipal responsibility is not the same in all jurisdictions and evolves from different premises. Reconciliation would be impossible. We will mention only a few instances.

In Burnett v. City of San Diego, 127 Cal.App.2d 191, 273 P.2d 345, 47 A.L.R.2d 1079 plaintiff was injured when he fell down unlighted outdoor steps of a fine arts gallery in a city park. It was dark. The lights were not turned on. There was arboreal litter on the steps such as is claimed in the case before us.

The opinion says that in the absence of a statute a city is not liable for the negligent acts of its officers and employees in discharging duties pertaining to governmental functions. Under the California Public Liability Act it was held that the city could not reasonably be required to keep a man on duty at all times to sweep up each leaf as it fell. A similar argument is made in our case. The failure to turn on the lights was held chargeable to the Fine Arts Society using the building and not to the city.

In City of Tulsa v. Harman (Okl.), 299 P. 462 decedent, with permission, was fishing in a city water reservoir. He was swept over a high concrete dam and killed. In holding that there was no liability on the city the court applied the same rules as we follow in business invitee cases. We note, however, that the city charged a fee for the privilege of fishing and for boat transportation by an employee and that decedent was actually a paying business invitee.

In Franklin v. City of Galveston (Tex.Civ.App.) 256 S.W.2d 997 plaintiff fell into Galveston Bay from a ramp on city-maintained waterfront docks. The Texas court in exonerating the city from liability used the same rules as applied to private occupiers of premises.

In Iowa a city's responsibility is statutory.

Chapter 389, Code of Iowa, I.C.A., deals with streets and public grounds. Section 389.12 provides:

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