Montgomery Ward & Co. v. Kerns

• Decision Date: 01 June 1970
• Docket Number: No. 22597,22597
• Citation: 172 Colo. 59,470 P.2d 34
• Parties: MONTGOMERY WARD & CO., Plaintiff in Error, v. Katherine KERNS, Defendant in Error.
• Court: Colorado Supreme Court

Page 34

470 P.2d 34

172 Colo. 59

MONTGOMERY WARD & CO., Plaintiff in Error, v. Katherine KERNS, Defendant in Error.

No. 22597.

Supreme Court of Colorado, In Department.

June 1, 1970.

Rehearing Denied June 29, 1970.

Warberg & Dressel, Sonja Warberg, Fort Collins, for plaintiff in error.

O. Rex Wells, James P. Johnson, Samuel L. Anderson, Fort Collins, for defendant in error.

PRINGLE, Justice.

Katherine Kerns, hereinafter referred to as the plaintiff, was injured while an invitee on the premises of a store operated by Montgomery Ward & Co., hereinafter referred to as the defendant. At trial, the jury awarded the plaintiff $22,500 in damages.

The defendant makes four contentions of error. (1) The trial judge erred in refusing to grant the defendant's motions for a directed verdict. (2) The trial judge erred in giving certain instructions to the jury and in refusing certain instructions tendered by the defendant. (3) The jury verdict is inconsistent. (4) The defendant did not receive a far trial. We do not agree with these contentions and we therefore affirm the judgment of the trial court.

I.

There is no dispute concerning the condition which caused injury to the plaintiff. The store where the injury occurred has two entrances onto a street running East and West. At each entrance is a single door consisting almost entirely of glass which opens inward. The floor level of the store is approximately 4 1/2 inches higher than the level of the sidewalk without. At the West entrance a ramp has been built to eliminate the step, but outside the East entrance there is a 4 1/2 inch step immediately in front of the door.

There were no witnesses to the plaintiff's mishap, and the only testimony concerning her accident came from the plaintiff. Plaintiff testified that she entered the store by the West entrance which had the ramp in place of a step. After shopping, she exited by way of the East entrance, a doorway she had never used before. There were no signs on the door to warn her of the step immediately beyond, and though the plaintiff testified that she looked through the door to the surface beyond it, she could not see the difference in levels. She opened the door and after taking a step or two fell on the step wrenching her back as she did so.

Relying primarily on our decision in Drake v. Lerner Shops of Colorado, Inc., 145 Colo. 1, 357 P.2d 624, the defendant argues that the plaintiff failed to make out a prima facie case for recovery since the condition which caused her injury does not constitute an unreasonable risk of harm.

We have uniformly held that an occupier of business premises owes a duty to use reasonable care to protect an invitee who comes to the premises against dangers of which the occupier knows or might discover by the exercise of reasonable care. In applying this rule, we held in Drake, supra, that in order to establish a prima facie case of negligence on the part of an occupier of business premises the evidence must establish the existence on the premises of a condition creating an unreasonable risk of harm to the invitee. Whether or not the invitee has proven such a condition to exist must depend on the circumstances of each case.

There is more than the mere existence of a step in this case. The step was situated immediately outside a glass door through which it was intended customers would enter and exit, and there existed circumstances from which the jury could infer that the step was a concealed one. While the step outside the West entrance was eliminated by a ramp, this was not done at the East entrance. There were no signs posted on the door to warn of the step beyond, as there were in the Drake case. Under all of the circumstances, we conclude that the plaintiff presented sufficient evidence from which the jury could infer that an appreciable risk of harm existed. See Blackburn v. Tombling, 158 Colo. 369, 407 P.2d 337.

Nor can we conclude as a matter of law that the plaintiff was guilty of contributory negligence. She testified that as she approached the door she looked through it to the surface beyond and saw no difference in level. She further testified that she looked on the door for any warning sign but saw none. From this testimony the jury could conclude that the plaintiff was proceeding with ordinary caution under the circumstances.

II.

The defendant argues that the court was in error in giving instructions number 9, 10, 12, 13 and 15. Of these instructions only instruction 13 was specifically objected to by the defendant at trial on the same grounds set forth on this appeal. As to the other instructions, it is sufficient to note that this court will not ordinarily consider objections to instructions given to the jury when those objections were not made during the course of the trial. C.R.C.P. 51; Wales v. Howard, 164 Colo. 167, 433 P.2d 493.

Instruction 13 instructed the jury that a person has a duty to use ordinary care while walking and to observe where she is going, and that to look and fail to see that which was plainly...