McCain v. Bankers Life & Cas. Co.

• Decision Date: 07 April 1959
• Docket Number: No. 58-207,58-207
• Parties: Deryk McCain, a minor, by his father and next friend, David P. McCain and David P. McCain, individually, Appellants, v. BANKERS LIFE AND CASUALTY CO., an Illinois corporation, Appellee.
• Court: Florida District Court of Appeals

Page 718

110 So.2d 718

68 A.L.R.2d 1194

Deryk McCain, a minor, by his father and next friend, David P. McCain and David P. McCain, individually, Appellants, v. BANKERS LIFE AND CASUALTY CO., an Illinois corporation, Appellee.

No. 58-207.

District Court of Appeal of Florida, Third District.

April 7, 1959.

Rehearing Denied April 29, 1959.

Same, Anderson, Eaton & Alper and Phillip Goldman, Miami, for appellants.

Walton, Lantaff, Schoreder, Atkins, Carson & Wahl, Miami, for appellee.

PEARSON, Judge.

The appellants are a minor and his father. They appeal from a summary final judgment entered in an action brought to recover damages for injuries sustained by the eight year old boy when he walked into and broke a plate glass door. The question to be determined is whether, under those facts which were established to be without genuine issue, the defendant is entitled to a judgment as a matter of law. We hold that the question of negligence is, upon the facts of this case, an issue for the jury, and accordingly the judgment is reversed.

The complaint alleged that the defendant owned and operated the model home in which the minor was injured. It was further charged that the defendant was guilty of negligence in that:

'(1) They failed to keep the said premises reasonably safe for small children, although they knew, or should have known, that children would be on the premises with their parents '(2) They failed to notify or warn the minor plaintiff of the presence of said glass door, although they knew, or should have known, that a minor child was likely to injure himself in the manner in which the plaintiff did injure himself;

'(3) They failed to place any stripping or other warning sign on the said glass, as is customary in this community under the same or similar circumstances.'

The defendant answered, denied nigligence and presented the defense that the minor was guilty of contributory negligence. Final summary judgment was granted upon the basis of the pleadings, answers to interrogatories, affidavits and certain depositions including that of the minor.

It was established that the defendant, Bankers Life, was in the business of selling homes in a subdivision. Its model homes were open to the general public and were for the purpose of stimulating the buying of homes in the subdivision. Immediately prior to the accident the minor plaintiff and his mother had visited and inspected a model home belonging to the same defendant which was located next door to the house in which the accident occurred. Both homes were fitted with sliding glass doors or panels separating the Florida room from the back yard. The minor plaintiff during his mother's inspection of the adjoining house had walked back and forth between the living room area and the backyard several times through the open glass doors. Immediately upon leaving the first model home the plaintiff and his mother went to the house next door; the accident occurred when the minor plaintiff walked into one of the glass panels in the closed door of the second house.

It is urged that the final summary judgment was proper under the general proposition that a person is required to see what is there to be seen by the ordinary use of his senses, and if it is there to be seen, it is deemed, in law, to have been seen. Cf. Kagan v. Eisenstadt, Fla.App.1957, 98 So.2d 370. Following this view, it is urged that the present case is governed by the opinion of the Supreme Court of Florida in Pettigrew v. Nite-Cap, Inc., Fla.1953, 63 So.2d 492, 493.

In the Pettigrew case, supra, the appellant-plaintiff was injured when she walked into a large plate glass door at the entrance of appellee's restaurant. Appellant's testimony revealed that the accident occurred in the evening, that the door was of clear glass, and that there was a wide metal strip on the top and the bottom of the door and a lucite handle located in the usual place on the door with black knobs at the top and bottom to hold it in place. At the close of the appellant's case the lower court directed a verdict for the appellee. The Court held:

'The handle, knobs, and metal strip on the door were plainly visible and the door was located at the place a door would naturally be expected. It is clear to us that that the sole proximate cause of plaintiff's injury was her failure to see that which, by the exercise of reasonable care, she should have seen.'

See also Stone v. Hotel Seville, Fla.App.1958, 104 So.2d 847. Courts in other jurisdictions have reached similar conclusions and are in accord with Pettigrew v. Nite-Cap, Inc., supra.

In Rosenberg v. Hartman, 313 Mass. 54, 46 N.E.2d 406, a business invitee upon leaving the defendant's store, walked into a glass door, which had been closed subsequent to the time of his entry. The door was described as being one large piece of practically transparent glass swung on pins at top and bottom with glass handles about a foot in length and a metal plate with a keyhole at about the usual position of a lock. The Court held:

'We do not think negligence ought to be found merely because the door was made of one large piece of glass. It could not have been wholly invisible.

Its handles, lock, and fittings were in plain sight. A door is to be expected at the entrance of a store.'

The same result was reached in the case of Dukek v. Farwell, Ozmun, Kirk & Co., 248 Minn. 374, 80 N.W.2d 53, 56, when a business invitee brought an action against a store owner for injuries sustained when he walked into a glass plate panel constituting a part of the entrance to the store. The entrance of the store consisted of three glass doors with a glass panel on either side. The plaintiff, a Western Union messenger boy, was injured in leaving the building when he walked into the panel on the side of the exterior doors. Before he got to the doors just described, he walked through a vestibule where there were three glass doors practically identical with those descibed and in line with them. There were no glass panels on the sides of the interior doors. Also inside of the vestibule were hand railings for use in ascending or descending three steps and these railings were in line with the doors. The injured party had entered these premises on two other occasions. The court held 'there was nothing to distract plaintiff, nor was there anything to prevent his seeing the door and distinguishing the doors from the adjacent panels.' The court further held: 'it is inescapable that the accident happened because plaintiff did not look where he was going.'

A plate glass window case in which a minor of sixteen years of age was involved, is found in A. C. Burton Co. v. Stasny, Tex.Civ.App.1949, 223 S.W.2d 310, 311. Here the invitee entered the place of business by passing through double doors constructed of iron grillwork, and he observed a plate glass window at one side of the door. When he later proceeded to leave the place of business, he dropped his head when some thirty feet from the doors and window in question, and continued to walk with his head down, 'and never looked up again until he walked through the plate glass window.' The court held that the plate glass window through which the plaintiff walked was small as compared with the double entrance doors, which were clearly defined and of which the plaintiff had full knowledge. Thus the court concluded that plaintiff failed to observe that which should have been observed by him in the exercise of reasonable care.

Acme Laundry Co. v. Ford, Tex.Civ.App.1955, 284 S.W.2d 745, is a case involving a suit brought by a business invitee against a laundry for injuries sustained when the plaintiff walked against and broke a plate glass window as he attempted to leave the defendant's laundry. The court held that the laundry owed the plaintiff the duty to protect him against conditions on its premises which would involve an unreasonable risk to his safety, the danger of which would not be open and obvious to a person exercising ordinary care. The court further held that the plate glass windows did not constitute such an unreasonable risk and plaintiff knew of the glass doors and panels, since they were open and obvious and readily discernible.

A contrary holding to the above cases is found in Grabel v. Handro Co., City Ct. 1955, 161 N.Y.S.2d 998, 999. In that case the plaintiff walked against a glass panel serving as a section of an arrangement of glass doors in the lobby of a commercial building. The glass doors had handles, and the glass panels, one at each end of the bank of doors, were framed with stainless steel. The plaintiff had not been in the building for two weeks, although he worked there. As he was leaving the building on a warm, sunny day, he thought he was walking through an open space, but instead walked into a glass panel from which a red masking tape had been removed. The court held that the entire arrangement gave an illusion of space and 'when the illusion is so successful that some hapless person is injured in mistaking the illusion for reality he can hardly be charged with contributory negligence as a matter of law.'

Shannon v. Broadway & 41st Street Corporation, 298 N.Y. 589, 81 N.E.2d 324, likewise departs from the majority rule appicable to glass door or window accidents. However this case appears to be an exception to the majority rule because of its factual background. Here, the plaintiff was at a sidewalk cafe. A window spearated the outside tables from the cafe and on occasions was let dwon into the floor to permit uninterrupted passage to the outside cafe. The accident occurred on a day when the outside cafe was not in operation, and the plaintiff walked into the window. The court affirmed the appellate division (272 App.Div. 1029, 73 N.Y.S.2d 711), which latter court affirmed a judgment for plaintiff.

In Harold Corporation v. Herzberg, Fla.App.1959, 110 So.2d 683, the factual situation is somewhat analagous to the Shannon case, supra....