Maxwell v. Lewis, 37709

• Citation: 186 Neb. 722,186 N.W.2d 119
• Decision Date: 23 April 1971
• Docket Number: No. 37709,37709
• Court: Supreme Court of Nebraska
• Parties: DeLene M. MAXWELL, Appellant, v. Nettie Opal Pugh LEWIS, Appellee.

Page 119

186 N.W.2d 119

186 Neb. 722

DeLene M. MAXWELL, Appellant, v. Nettie Opal Pugh LEWIS, Appellee.

No. 37709.

Supreme Court of Nebraska.

April 23, 1971.

Syllabus by the Court

1. A motion for a directed verdict must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the person against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. Negligence is ordinarily defined as the doing of some act under the circumstances surrounding the accident involved, which a man of ordinary prudence would not have done, or the failure to do some act or to take some precaution which a man of ordinary prudence would have done or taken.

3. A landowner should not be held liable for defects which an investigation might reveal unless the situation suggests an investigation, and the facts indicate to a reasonably prudent man the likelihood of existence of some hidden danger to persons lawfully on the premises.

4. A business inviter owes the duty to exercise ordinary care to keep the approaches to his place of business in a reasonably safe condition for the use of the patrons and customers properly on the premises. In this respect, an inviter must exercise ordinary care in the light of what he knows or reasonably should know to protect an invitee from danger or to notify him of such danger while he is rightfully on the premises and engaged in the proper performance of the purpose of his presence.

5. If conditions and circumstances are such that an invitee has knowledge of a condition in advance or should have knowledge comparable to that of the inviter, it may not be said that the inviter is guilty of actionable negligence.

6. Where different minds may reasonably draw different conclusions or inferences from the evidence adduced concerning the issues of negligence or contributory negligence and the degree thereof when one is compared with the other, such issues must be submitted to the jury.

Eisenstatt, Higgins, Miller & Kinnamon, Omaha, for appellant.

Pilcher, Howard & Dustin, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SPENCER, Justice.

This is an action for personal injuries suffered in a fall on an icy stairway leading to defendant's place of business. At the close of all the evidence, the trial court sustained defendant's motion for dismissal. We reverse the judgment.

A motion for a directed verdict must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the person against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence. Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820.

Defendant's place of business is located at 2556 Ellison Avenue in Omaha, Nebraska. It is a one-story frame dwelling, the front porch of which had been converted into a beauty parlor operated solely by the defendant. There are six cement steps from the street level to a cement sidewalk running a few feet in a north-south direction, to four precast cement steps which provide the entrance to the shop. These steps have raised nodules to provide some protection against slipping. The steps are 6 feet wide, with a handrail on the east side.

Plaintiff had been a regular customer of defendant's beauty shop for a number of years and had a standing Saturday afternoon appointment. At approximately 4 p.m., on January 11, 1969, accompanied by her sister, she went to the shop to have her hair fixed. When she ascended the steps into the shop, she noticed they were wet and damp, but no ice was present. The temperature that afternoon was warm and although the snow which had fallen earlier in the week was melting, it had all been cleared from the sidewalks.

Plaintiff started to leave the premises at approximately 5:15 p.m. She opened the door and looked generally at the house steps before she attempted to descend, but saw no ice. When she stepped out the door onto the top step, her foot slipped and she slid down the steps. At that time her sister was behind her at the door, and the defendant was directly behind the sister. Defendant immediately checked the steps and found a thin coat of transparent ice. She then put Ice-Away, which she kept near the front door, on the steps before the sister descended. The ice disappeared on contact with the Ice-Away.

Because snow was thawing on the slant roof of the house, and the gutter which drained the area was immediately above the steps, some water occasionally dripped on the steps from the overflow of the gutter. Defendant knew that ice would form in the area when the temperature dropped below freezing. The only time it had been necessary to put Ice-Away on the steps that day was before the shop opened in the morning. Defendant did this to remove the ice which had accumulated during the night. A patron of the defendant's shop, who was present when plaintiff arrived and who left the premises about 4:30 p.m., did not see any ice. She did note, however, that the house steps were wet as had the plaintiff when she arrived. Defendant had noticed water dripping from the roof during the afternoon, but did not say anything to the plaintiff about the hazard of ice because the day had been warm and she did not know that the temperature was dropping.

Defendant urges that the judgment of dismissal should be sustained under the authority of Kozloski v. Modern Litho, Inc., 182 Neb. 270, 154 N.W.2d 460. In that case, we held: 'Negligence is ordinarily defined as the doing of some act under the circumstances surrounding the accident involved, which a man of ordinary prudence would not have done, or the failure to do some act or to take some precaution which a man of ordinary prudence would have done or taken.

'In order to impose liability for injury to an invitee, the dangerous condition...