Ollar v. Spakes, 80-81

• Decision Date: 07 July 1980
• Docket Number: No. 80-81,80-81
• Citation: 601 S.W.2d 868,269 Ark. 488
• Parties: E. C. OLLAR and Maude Ollar, his wife, Appellants, v. Mr. and Mrs. George SPAKES, d/b/a George's Place, Appellees.
• Court: Arkansas Supreme Court

Page 868

601 S.W.2d 868

269 Ark. 488

E. C. OLLAR and Maude Ollar, his wife, Appellants, v. Mr. and Mrs. George SPAKES, d/b/a George's Place, Appellees.

No. 80-81.

Supreme Court of Arkansas.

July 7, 1980.

Baim, Baim, Gunti, Mouser & Bryant by Kenneth B. Baim, Pine Bluff, for appellants.

Edward I. Staten, Pine Bluff, for appellees.

PURTLE, Justice.

E. C. and Maude Ollar, appellants, argue that the trial court erred in granting a motion for a summary judgment against them in their suit against Mr. and Mrs. George Spakes, d/b/a George's Place, appellees, for damages arising from injuries received by Maude Ollar in a fall she suffered as she approached the restaurant operated by appellees. We disagree with appellants' argument and affirm the judgment of the trial court.

The complaint alleged that on November 3, 1976, appellants were proceeding toward appellees' restaurant when the injury occurred. The complaint also stated that the appellants intended to dine at appellees' restaurant; and, upon finding the parking lot at George's full, they proceeded to park on the lot next door. It was after dark; and, as appellants walked from their parking place to appellees' premises, Mrs. Ollar fell over a railroad crosstie before reaching the parking lot owned by appellees. Damages were claimed due to the injuries sustained by Mrs. Ollar.

Appellants allege that appellees were negligent, but the abstract of the record does not contain the particular acts which were alleged to have been been negligent.

In their answer, appellees denied the allegations of the complaint and that the accident occurred on their premises. Appellees also argued that the fall was caused by Mrs. Ollar's negligence and that her negligence was greater than the negligence of the appellees, if they were indeed negligent at all.

Appellees moved for a summary judgment on the grounds that the appellants were not on their property at the time of the injury, that appellees were not negligent, and that the Ollars assumed the risk of injury. The motion was based upon the pleadings and depositions of the parties and a Mrs. Herrod, a witness who owned the lot next door. Viewed in the light most favorable to appellants, the record disclosed the following facts:

The Ollars went to George's Place to eat after they had closed their place of business, as they had done once or twice a week for two or three years. Whenever they could they parked on the parking lot at George's Place. If the parking lot at George's was full, they usually parked on Mrs. Herrod's lot next door. On the date in question, George's parking lot was filled to capacity, and the appellants parked on Mrs. Herrod's lot next to George's.

Mrs. Herrod had placed a row of crossties from the north to the south length of her property very near the boundary line between her lot and that of the appellees. The Ollars had parked on the lot previously and were aware of the crossties which had been located in approximately the same place for at least six years. On the night in question, one of the crossties was slightly out of line and apparently Mrs. Ollar stumbled on it and fell to the ground between the crossties next to the boundary line between the lots. She did not know whether she fell on George's lot or Mrs. Herrod's lot.

Mrs. Herrod had placed a sign on either side of her property warning people not to park on her lot. Each sign was about 4' X 4' and placed approximately on the property line facing 28th Street. The Ollars denied noticing these signs although Mrs. Ollar acknowledged she had parked on the Herrod lot previously when the lot at George's Place was full.

After Mrs. Ollar fell, the appellees came out of the restaurant and one of them stated: "Well, we have tried to get Irene to move these things and she hasn't done it, and she said that this thing might happen to me sometime." The purpose of the crossties being placed down was to keep traffic from coming from George's Place onto Mrs. Herrod's parking lot. Originally, the ties had been fastened down with steel pins but apparently vehicles had jarred them loose, and they were subject to being moved by vehicles. Appellees and Mrs. Herrod were not on good terms because she had come into George's Place and ordered his customers to go and move their cars when they were parked on her lot. She had called the police and had cars towed away. About six years earlier, George had moved one of the crossties which became loose and apparently extended over to the edge of his property. After George's Place closed, the Herrods retrieved the crosstie and replaced it in the line of ties separating the property.

Appellees had complained to Mrs. Herrod about having the crossties placed there to prevent vehicular traffic onto her lot. They also complained about her having cars of their customers towed away. Appellees had informed Mrs. Herrod they felt she owed their customers a place to park, and she informed them she felt she owed their customers nothing. Mrs. Herrod warned people by word and signs and by the crossties that she did not want George's customers parking on her lot.

After appellants backed their car into a parking space on the Herrod's parking lot, they got out of their vehicle and proceeded toward George's Place when Mrs. Ollar stumbled and fell. At no time did any testimony place the crosstie on the property of appellees.

There were no lights on the Herrod property. There was a street light on the southeast corner of George's parking lot and two neon-type signs on the lot. In any event, there was not enough illumination for Mrs. Ollar to observe the crosstie before she fell.

Appellants argue that appellees were negligent because they knew the danger was created to their business invitees by the location of the crossties and the absence of lighting during darkness. They further contend that although appellees were aware of this situation, they took no action to stop their customers from parking on the adjacent lot. In summary, they allege that appellees did not use ordinary care to prevent injuries to those business invitees on their way to appellees' place of business.

It is the duty of an owner or occupier of land to his business invitees to maintain a reasonably safe condition for those coming upon his premises. Although we have found no cases in Arkansas holding that this duty goes beyond the limits of the business property, we quoted a Massachusetts case in Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S.W. 712 (1919), which stated:

The owner or occupant of land is liable to those coming to it, using due care at his invitation or inducement, express or implied, on any business to be transacted or permitted by him, for an injury occasioned by an unsafe condition of the land, or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist, and has given them no notice of.

Therefore, the liability of the owner or operator of a business to an invitee is not necessarily confined to his property boundary lines; however, before extraterritorial liability attaches, it must be shown that the owner or operator had actual or constructive knowledge of the danger of injury to his invitees. When an owner or operator learns or should have learned of a dangerous condition existing adjacent to his property and fails to attempt to correct the condition or warn the invitees of such danger, he is guilty of negligence.

In this case it cannot be said that appellees knew of the danger of injury to their invitees. The most that can be said is that they were aware that the crossties were present and that they created an inconvenience to customers coming from the Herrod lot to their own. There was no evidence, or even an inference, that other people had been injured due to the existence of the crossties.

There is no dispute that the appellants were business invitees. The duty owed to an invitee is that of ordinary care to keep the premises in reasonably safe conditions. Davis v. Safeway Stores, Inc., 195 Ark. 23, 110 S.W.2d 695 (1937). The owner is not an insurer of the safety of invitees on his premises, but his liability to an invitee must be based upon negligence. Kroger Grocery & Baking Company v. Dempsey, 201 Ark. 71, 143 S.W.2d 564 (1940). An owner may be held liable when injury could have been avoided by timely notice of a defective condition on the premises. St. Louis I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 S.W. 789 (1906). In Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968), we stated:

The owner is liable regardless of his lack of knowledge of the defective condition if it was also unknown to an injured invitee, when the surrounding circumstances are such that the former could and would have known of the dangerous condition had he exercised reasonable care and foresight for the safety of those who might come upon his premises by invitation, express or implied.

It is noted that the owner of the premises must have known of the dangerous condition or could have, in the exercise of reasonable care, discovered such dangers before he will...