Luebeck v. Safeway Stores, Inc.

• Citation: 446 P.2d 921,152 Mont. 88
• Decision Date: 03 December 1968
• Docket Number: No. 11454,11454
• Parties: Gertrude LUEBECK, Plaintiff and Respondent, v. SAFEWAY STORES, INC., a corporation, and Ivan Smith, Defendants and Appellants.
• Court: United States State Supreme Court of Montana

Page 921

446 P.2d 921

152 Mont. 88

Gertrude LUEBECK, Plaintiff and Respondent, v. SAFEWAY STORES, INC., a corporation, and Ivan Smith Defendants and Appellants.

No. 11454.

Supreme Court of Montana.

Submitted Sept. 24, 1968.

Decided Nov. 7, 1968.

Rehearing Denied Dec. 3, 1968.

Poore, McKenzie, Roth & Robischon, James A. Robischon (argued), Butte, for appellants.

D. L. Holland (argued), Robert J. Holland (argued), Butte, for respondent.

CASTLES, Justice.

This is an appeal from a judgment entered upon a jury verdict for personal injuries, after motions for judgment notwithstanding the verdict and for a new trial were denied.

On Saturday, January 21, 1967, plaintiff and her husband, the Luebecks, planned to go to defendant's store in the City of Butte, Montana, to purchase a few groceries. It was snowing heavily during the morning and the Luebecks waited for the snow to stop. About 2:00 p. m., after the snow stopped, the Luebecks drove their pickup truck to defendant's store and into the large parking lot owned by defendant Safeway.

Luebeck parked about 100 feet from the entrance of the store. The parking lot was level and snow covered. None of the snow that had fallen had been removed. Plaintiff wore 'kickerinos', a sort of snow boot. She knew the condition of the driveway in the parking lot was 'bad'. As she put it, 'We walked real carefully because we could see the conditions were bad. * * *.' She also testified that conditions were the same going into the store as they were coming out.

A witness for the plaintiff, an eye witness to the fall, testified that as he parked in the parking lot, he had 'a very difficult time controling (sic) my automobile. It was real slippery.' Further he testified, 'Well, it was all packed snow and it was glazed and it was with great difficulty that we got her up and in the truck. We had all we could do to hold our own footing. I remember when I parked my car I almost slid into the one on the left side of may car.'

Luebecks went into the store, purchased a few items, and left the store without the assistance of box boys. Mr. Luebeck carried two sacks of groceries. Plaintiff carried her purse and a cake box. They were returning to the pickup when plaintiff slipped and fell, suffering a broken ankle. The area where she fell was a level snow covered surface.

Plaintiff testified that after she fell, her husband saw ice where she slipped.

Mr. Smith, manager of the store, testified that he knew the condition of the parking lot, knew it to be hazardous; and had done nothing about it.

The single issue necessary to discuss is whether at the close of the plaintiff's case the court erred in denying a motion for directed verdict and/or for judgment of dismisal. To determine the issue, the question is whether under the foregoing fact situation, damages can be recovered at all, or, put another way, what is the duty of a landowner to a business invitee as it pertains to maintenance of a public parking lot with regards to the natural accumulation of snow and ice?

In Cassaday v. City of Billings, 135 Mont. 390, 393, 340 P.2d 509, 510, this Court said:

'Actionable negligence arises only from a breach of a legal duty. Jonosky v. Northern Pacific Ry. Co., 57 Mont. 63, 72, 187 P. 1014.

'It is well-established in Montana that a landowner is obligated toward an invitee to either use ordinary care to have the premises reasonably safe, or to warn the invitee 'of any hidden or lurking danger therein.' Milasevich v. Fox Western Montana Theatre Corp., 118 Mont. 265, 270, 165 P.2d 195, 197, and see Restatement, Torts, Negligence, § 343. He is not an insurer against all accidents and injuries to such persons while there. Milasevich v. Fox Western Montana Theatre Corp., supra.

'There was no hidden or lurking danger under the circumstances herein requiring a warning. The plaintiff saw and tested the ice. The condition was open, visible and obvious.'

While Cassaday involved an ice rink, the same situation applies here in that the condition was open, visible and obvious. The plaintiff here knew the conditions to be 'bad'.

Authority from other jurisdictions is cited in both briefs. Respondent cites, among others, Dawson v. Payless For Drugs (Or.1967) 433 P.2d 1019. There the Oregon court in a divided opinion held liability on the owner of a parking lot sufficient to go to a jury in a slip and fall case. The court purported to rely on the Second Restatement of Torts, Section 343A, reasoning as follows at page 1022 of 433 P.2d:

'Nor does our present holding go so far as to impose a duty upon the possessor in every case in which he has knowledge of a condition of danger upon his business premises. The duty arises only when the condition is unreasonably dangerous. The distinction is developed in 2 Harper and James, The Law of Torts, § 27.13, p. 1489-90 (1956). There it is said:

"People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.'

'Thus, it is pointed out that an ordinary flight of stairs in a common outdoor setting is not an unreasonably dangerous condition, whereas the same stairway covered with ice may be. In the latter circumstance, 'the condition of danger is such that it cannot be encountered with reasonable safety even if the danger is known and appreciated.' Id. at p. 1493. When the potential for harm reaches this level the possessor...