Luthy v. Denny's, Inc.

• Citation: 782 S.W.2d 661
• Decision Date: 07 November 1989
• Docket Number: No. WD,WD
• Parties: Lillian Frances LUTHY, Respondent, v. DENNY'S, INC., Appellant. 41331.
• Court: Court of Appeal of Missouri (US)

Page 661

782 S.W.2d 661

Lillian Frances LUTHY, Respondent, v. DENNY'S, INC., Appellant.

No. WD 41331.

Missouri Court of Appeals,

Western District.

Nov. 7, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 2, 1990.

Application to Transfer Denied Feb. 13, 1990.

Frederick G. Thompson IV, Kansas City, for appellant.

Joseph A. Hamilton, Pleasant Hill, for respondent.

Before GAITAN, P.J., and MANFORD and ULRICH, JJ.

GAITAN, Presiding Judge.

Lillian Frances Luthy brought an action against Denny's Inc. for damages arising out of a slip and fall accident at one of defendant's restaurant locations. A jury returned a verdict, assessing zero percentage of fault to both plaintiff and defendant. Plaintiff then filed a motion for new trial which was sustained by the trial court. Defendant Denny's appeals from the order granting a new trial, contending that the trial court erred in: (1) overruling defendant's motion for directed verdict at the close of all the evidence because plaintiff failed to make a submissible case; (2) granting plaintiff's motion for new trial without specifying the grounds in its order; and (3) ruling that evidence of the absence of other similar accidents was inadmissible. Judgment affirmed.

The accident occurred on February 11, 1987 at the Denny's Restaurant on 87th and I-435 in Kansas City, Missouri. Arriving with her church group, the plaintiff entered the restaurant at approximately 12:30 p.m. Mrs. Luthy went through the front entryway and walked to the rear dining area. After taking off her hat and coat, plaintiff returned to the front of the restaurant to the ladies restroom, which was in a hall near the main entrance. At this time, plaintiff noticed at least one, bright orange cone, approximately one and one-half feet tall with the marking "wet floor," in the hall leading to the restrooms. The restaurant allegedly used the warning cones to caution patrons of a wet floor due to spills or routine mopping. Plaintiff noted that although she saw a warning cone, the floor was dry and she observed no one mopping the floor.

Mrs. Luthy returned to her table. Her luncheon meeting was not completed until approximately 2:15 p.m. Plaintiff went to the front cash register to pay her bill. Some congestion existed at the register as members of the group, including plaintiff, paid their bills. After settling her bill, Mrs. Luthy turned to walk to the ladies restroom. Several men moving toward the restroom area were in front of plaintiff, and as plaintiff concentrated on not bumping into the man closest to her, she fell over a cone. The plaintiff suffered a broken hip and incurred approximately $17,000 in subsequent medical expenses. Plaintiff testified that at no time did anyone from the restaurant warn her that the cone still remained in the hallway to the restrooms.

I.

Defendant in its first point contends that the trial court erred in not granting its motion for directed verdict at the close of all the evidence, because plaintiff failed to make a submissible case in that there was not sufficient evidence to warrant a finding that a defective condition existed on defendant's premises.

In determining whether the plaintiff made a submissible case, we must construe the evidence, together with all reasonable inferences drawn therefrom, in a light most favorable to plaintiff, and disregard defendant's evidence that does not support the plaintiff's case. Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 504 (Mo. banc 1986); Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984).

The general duty owed to an invitee by the owner of the premises is the exercise of reasonable and ordinary care in making the premises safe. Schultz v. Webster Groves Presbyterian Church, 726 S.W.2d 491, 495 (Mo.App.1987). The elements of a cause of action for an injured invitee are: (a) a dangerous condition, existing on the floor of defendant's store which involved an unreasonable risk; (b) that defendant knew or by using ordinary care should have known of the condition; (c) that defendant failed to use ordinary care in removing or warning of the danger; and (d) as a result plaintiff sustained injury. Patton v. May Department Stores Co., 762 S.W.2d 38, 39-40 (Mo. banc 1988); Jones v. National Supermarkets, Inc., 729 S.W.2d 218, 220 (Mo.App.1987); see also MAI 22.03 (1989). In order to show that the instrumentality which caused the injury was defective, plaintiff must show that it was inherently dangerous and/or defective, or that it was placed in such a way that it created a dangerous condition. Jones v. National Supermarkets, Inc., 729 S.W.2d at 221; see also Grube v. Associated Dry Goods, Inc., 663 S.W.2d 310, 312 (Mo.App.1983).

Defendant Denny's objects only to whether sufficient evidence existed as to whether the warning cones were a dangerous or defective condition. Therefore this Court will not address the other elements required for submissibility on this appeal.

Plaintiff Luthy testified that she saw a warning cone in the restroom hallway after she first arrived at the restaurant; that the number of persons around the cash register at the time she prepared to pay her bill caused congestion; that after she paid her bill and turned to walk to the ladies room, several men were in front of her path; that she did not expect to see, nor did she see the warning cone before she fell over it; that no one warned her that cones still remained in the hallway; and that the floor was dry at the time she fell. Plaintiff did concede on cross-examination that she did not look at the floor as she walked to the restroom, and had she been looking at the floor she probably would have seen the cone.

A defense witness, David Kellar who was the night manager of the restaurant at 87th Street when the incident occurred, testified that at the end of each shift the floors of the restaurant were mopped; that during the day the floors were mopped between 1:30 and 2 p.m.; that warning cones were placed around the area mopped to warn of wet floors; and that it generally took between twenty and thirty minutes for the floor to dry. On cross-examination Kellar admitted that a group of seventeen persons such as Mrs. Luthy's church group could cause congestion at the register, and that the restaurant could reasonably expect congestion in the restroom hallway. He further conceded that if he had been at the register, he would have warned people to watch out for the cones.

David Farlow, the day manager of the restaurant on February 11, 1987, testified on cross-examination that he was in his office rather than at the cash register when the accident occurred, and that he did not warn nor had he instructed the cashier to warn individuals about the warning cones. Farlow acknowledged that when he rushed to plaintiff's assistance after the fall, he noticed that the floor was dry.

We find that plaintiff made a submissible case. Defendant knowingly set out the warning cone. Such a cone is not permanent to any location. One of defendant's restaurant managers acknowledged that a crowd of persons could cause congestion in the main entrance way and restroom hallway. Testimony of the plaintiff as well as one of the defendant's restaurant managers established that the warning cone was placed in an area of known congestion. The night manager further conceded that if he had been present he would have warned customers of the presence of the warning cones. Such a statement creates a reasonable inference that the defendant was, or at least should have been aware, that in circumstances such as presented in this case, the warning cone could become a dangerous condition when placed in a congested area and posed a threat of someone not seeing the cone and tripping over it. Plaintiff testified that she received no warning. Therefore, evidence presented at trial created an issue for the jury as to whether the cone, even though it served as a warning device, was in fact a dangerous condition.

Defendant further contends that as the warning cone was an open and obvious condition, defendant had no duty to remove the cone as plaintiff submitted in its verdict directory instruction number seven.

Defendant incorrectly states the holding of this state's supreme court decision in Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28 (Mo. banc 1987). In Cox the Missouri Supreme Court held that comparative fault altered the common law relationship between a business owner and invitee. The language of MAI 22.03 which rested on the common law concept that an open and obvious danger, unanticipated by the defendant, dispenses with the duty to warn, was rejected by the Court as a vestige of the contributory fault system ended by Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983). In so doing, the Court not only broadened the common law duty of the business invitor, but changed what was before the element of the plaintiff's case into a defense upon which the defendant bears the burden of proof. In accordance with Cox, an invitee's knowledge of an obvious danger is considered in determining the invitee's comparative negligence rather than in determining the duty of the owner. Id. at 84; accord, Patton v. May Dept. Stores Co., 762 S.W.2d at 39-40; Hefele v. National Super Markets, Inc., 748 S.W.2d 800, 802 (Mo.App.1988). See also, Garrison and Cook, Missouri Comparative Fault Treatise--Theory and Practice § 5.2(a), 7.2(b) UMKC-CLE, (1989).

To further support his position, appellant cites to Nichols v. Koch, 741 S.W.2d 87, 90 (Mo.App.1987) for the proposition that if defendant's duty is discharged by the invitee's equal knowledge, the issue of comparative fault is not reached. In Nichols, the eastern district was presented with the issue of whether a plaintiff's claim would be barred by knowledge of the defect/danger, or if it became an issue for the jury under Missouri's comparative fault doctrine. Because the issue was first presented in reply brief, the...