Mozert v. Noeding

• Decision Date: 13 June 1966
• Docket Number: No. 7830,7830
• Citation: Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364, 1966 NMSC 113 (N.M. 1966)
• Parties: Zoe MOZERT, Plaintiff-Appellant, v. Otto NOEDING, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 364

415 P.2d 364

76 N.M. 396

Zoe MOZERT, Plaintiff-Appellant, v. Otto NOEDING, Defendant-Appellee.

No. 7830.

Supreme Court of New Mexico.

June 13, 1966.

George T. Reynolds, Taos, McRae, Ussery, Mims, Ortega & Kitts, Albuquerque, for appellant.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Mary C. Walters, James E. Casados, Albuquerque, for appellee.

OPINION

LaFEL E. OMAN, Judge, Court of Appeals.

This is a suit for personal injuries sustained by plaintiff-appellant, Zoe Mozert, as a result of a fall into an unguarded stairwell situate in a storeroom on premises owned by defendant-appellee, Otto Noeding. Plaintiff seeks reversal of a judgment in favor of defendant entered upon a verdict directed by the trial court at the close of plaintiff's case in chief.

There are some questions as to what the facts were in certain particulars. However, in considering the motion for a directed verdict at the close of her case, plaintiff was entitled to have the evidence, together with all reasonable inferences deducible therefrom, viewed in the light most favorable to her. Sandoval v. Brown, 66 N.M. 235, 346 P.2d 551; Romero v. Shelton, 70 N.M. 425, 374 P.2d 301.

In so viewing the evidence, we find that defendant owned and operated, on the same premises where the storeroom was situate, an art gallery, gift shop, museum and some apartments. The storeroom was used primarily in connection with the apartments, was small, had a dirt floor, had no windows, and had but one door. There was one overhead light fixture in the room which was equipped with a 25-watt bulb. Near one end of the room and diagonally opposite the doorway was an unguarded stairwell leading to a small basement room in which there was a water heater. The stairs themselves were constructed of rough lumber.

On the day of her fall, plaintiff had gone to the gallery for the purpose of getting a 'pegboard,' which was approximately 2 1/2 feet in width by 6 feet in length, and which defendant had theretofore indicated she could have. When she asked him for the pegboard on the day in question, he informed her that he believed it was in the storeroom. She had never been in the storeroom, which was situate about 200 feet from the gallery. As he started for the storeroom, he stated to her that he was not sure what piece of pegboard she had in mind and that she had better come with him and look for it.

They proceeded together to the storeroom which he unlocked. He entered and she followed. The door was left open to admit light, but it was still dim inside. The room contained a work table, items of furniture, tools and junk, which were stored primarily against the walls, leaving a somewhat limited area in which to walk about. However, the floor in the open area was not cluttered.

Upon entering the room, plaintiff looked about in an area which was slightly visible by reason of the light entering through the doorway. As her eyes became more accustomed to the dim light, she looked and moved further into the room in her search for the pegboard. She came to what appeared to her to be a partition. She took a small step and bent forward to peer around this partition. About that time the dirt floor at the edge of the stairwell broke under her feet and she fell down the stairs.

Plaintiff and defendant had been in this small room searching for the pegboard for a period of from two to four minutes before her fall. He had not turned on the light and had not warned her of the presence of the stairwell, athough he was fully familiar with the storeroom and with the fact that the unguarded stairwell was difficult to see unless a person knew it was there.

In her brief in chief, plaintiff has set forth three points relied on for reversal, but has broken them down into five points for argument. Her argument under the first three of these points is that there was sufficient evidence to submit to the jury the question of defendant's negligence in maintaining a dangerous and hazardous condition in the storeroom, and in failing to warn or otherwise protect her against harm from such condition, regardless of whether her status was that of an invitee or a licensee.

Her position as to her status is that there was evidence from which the jury could have found her to be an invitee, but, even if she were a licensee, there was still evidence from which the jury could have found defendant breached his duties owing to her under the circumstances of the case.

Our review of the record convinces us that plaintiff is correct. Defendant is also in accord. He does not resist plaintiff's arguments under these points, but asserts in his answer brief that for the sake of the argument he will assume that it can reasonably be deduced from the evidence that a dangerous condition existed and that he failed to warn plaintiff, knowing she was unaware of the hazard. He then argues that the trial court was still correct in directing the verdict for him, because plaintiff's evidence established as a matter of law that she was contributorily negligent. He asserts that 'the sole basis of appellee's (defendant's) motion for directed verdict was appellant's (plaintiff's) own negligence, proximately contributing to her accident.'

In oral argument before this court he conceded that there was evidence from which the jury might have found him to be negligent, but he again strongly urged that the evidence established plaintiff's contributory negligence as a matter of law.

However, in the arguments made to the trial court on the motion for a directed verdict, a great deal was said by both parties as to the status of plaintiff at the time of her fall and the duties owed to her by defendant. In view of this, we feel it proper to comment briefly upon the status of plaintiff on defendant's premises and the duty owed to her by defendant.

It would serve no useful purpose to detail the evidence as to the relationship between the parties during the six weeks of their acquaintance prior to the accident, and which led up to the search for the pegboard. On a retrial of the case, and after the defendant has adduced his evidence, there will undoubtedly be additional evidentiary matters to be cnsiderered by the court, and very likely be the jury, on the question of whether the plaintiff was a licensee or a business invitee. If she was not a business invitee, she was certainly a licensee.

A business invitee, or business visitor, is defined in Restatement of the Law of Torts 2d, § 332(3) as follows:

'A business visitor is a persn who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.'

See Sandoval v. Board of Regents of N.M. State Univ., 75 N.M. 261, 403 P.2d 699, wherein we quoted and adopted the definition from 2 Restatement of the Law of Torts, § 332, which is identical with the above quoted definition, except there has been eliminated from the definition in the second edition the word 'or permitted.'

In Crenshaw v. Firestone Tire & Rubber Company, 72 N.M. 84, 380 P.2d 828, and again in Sandoval v. Board of Regents, supra, we quoted with approval the rule relative to the duties owed by a possessor of land to his business invitees as set forth in 2 Restatement of the Law of Torts, § 343. This rule of liability is now set forth in Restatement of the Law of Torts 2d, § 343, in the following language:

'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.'

If on retrial of this case the court should determine as a matter of law, or the jury should determine, under proper instructions by the court, that plaintiff was a license, then the applicable rule of liability is set forth in Restatement of the Law of Torts 2d, § 342, as follows:

'A possessor of land is subject to liability for...