Privitera v. Coastal Mart, Inc., WD
| Decision Date | 29 August 1995 |
| Docket Number | No. WD,WD |
| Parties | Rosana PRIVITERA, Respondent, v. COASTAL MART, INC., Appellant. 49920. |
| Court | Missouri Court of Appeals |
Ben T. Schmitt, Kansas City, for appellant.
Stephen C. Caruso, Kansas City, for respondent.
Before BERREY, P.J., and ULRICH and ELLIS, JJ.
On April 24, 1991, Rosana Privitera Biondo ("Privitera") stopped after work at a Coastal Mart Inc. gas station in Raytown, Missouri to purchase gasoline. Privitera, who was wearing high heels, pumped the gasoline into her car and walked across the station lot to pay the cashier. As she left the cashier and began walking back across the lot to her car, she caught her heel in a small marble-sized hole in the concrete and fell to the ground. As a result of her fall, Privitera's lip was badly cut and some of her teeth were broken. Privitera filed suit against Coastal Mart in Jackson County, alleging negligence. Coastal Mart answered, denying the allegation of negligence and affirmatively asserting Privitera's injuries were a result of her own negligence or the negligence of third parties. Following trial on April 25, 1994, the jury returned a verdict awarding Privitera $40,000 in damages and assessing 70% fault to Coastal Mart and 30% fault to Privitera. On April 27, 1994, the court entered judgment in favor of Privitera in the amount of $28,000 (70% of $40,000). Coastal Mart filed a motion for judgment notwithstanding the verdict or in the alternative motion for new trial, which was denied. It now appeals. The judgment is affirmed.
In its first point, Coastal Mart contends the trial court erred in denying its motions for directed verdict as well as its motion for judgment notwithstanding the verdict because the condition of the parking lot was so open and obvious that under Harris v. Niehaus, 857 S.W.2d 222 (Mo. banc 1993), Coastal Mart owed no duty to Privitera. Under Harris, if a condition on the property is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees unless the possessor should anticipate the harm despite such knowledge or obviousness. Id. at 226.
[A] possessor of land is not an absolute insurer of the well-being of its invitees. As a general matter, therefore, a possessor's actions do not fall below the applicable standard of care if the possessor fails to protect invitees against conditions that are open and obvious as a matter of law.
Coastal Mart contends the condition of the lot, which had numerous marble-sized pits on the surface of the concrete, was so open and obvious that a person should reasonably be expected to see it and realize her heel could catch in one of the small holes and consequently, it did not breach the standard of care owed to Privitera.
In Harris, a woman left her children in a car on a hill facing down toward a lake at the bottom of a hill. The Court found it to be completely obvious to a reasonable person that a car will roll down a hill, and that if there is a lake at the bottom of the hill, the car will likely roll into the lake, drowning the children inside the car.
In the case at bar, we are dealing with the maintenance of the surface of the gas station lot rather than the placement of parking spaces at the top of a hill. The most obvious distinction between the Harris scenario and this one is that the allegedly defective condition in Harris was a natural condition: a hill leading down to a lake. On the other hand, in the case at bar, while the defect may have been caused by natural forces, i.e., pop-outs in the concrete caused by water seeping into the concrete and freezing, it is not a natural condition: it is merely a normal occurrence with concrete in Midwestern weather. While such a condition on pavement may be quite visible and is something women in high heels are confronted with every day, it does not necessarily follow that Coastal Mart had no duty to repair the surface of the lot if it became unreasonably dangerous.
While we do not imply that only natural conditions may be considered open and obvious, if we follow Coastal Mart's argument to its logical conclusion, the possessor of land will never be liable if the condition on property is visible, no matter how negligent the possessor was in maintaining its property. But a possessor of land is still subject to liability for injuries caused by a condition on the land if the possessor:
(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.
Harris v. Niehaus, 857 S.W.2d at 225-26 (quoting Restatement (Second) of Torts, § 343 (1965)). As noted in Harris, this means:
Thus, to meet the applicable standard of care a possessor of land must (1) exercise reasonable care; (2) disclose to the invitee all dangerous conditions which are known to the possessor and are likely not to be discovered by the invitee; and (3) see that the premises are safe for the...
To continue reading
Request your trial
-
Ford v. Ford Motor Co.
...that the danger of the pinch point was open and obvious.This Court rejected this precise argument in Privitera v. Coastal Mart, Inc. , 908 S.W.2d 779 (Mo. App. W.D. 1995). In Privitera , as here, a defendant argued that the circuit court should have granted it a directed verdict because an ......
-
Peterson v. Summit Fitness, Inc.
...to exercise due care, the case was not submissible to the jury. Id. The opposite conclusion was reached in Privitera v. Coastal Mart, Inc., 908 S.W.2d 779 (Mo.App.1995). There, the plaintiff went to a gas station to purchase gas. While she was walking across the gas station lot to pay the c......
-
Shoop v. Forquer
...realize that it involves an unreasonable risk of harm to such invitees." See Harris, 857 S.W.2d at 225-26; Privitera v. Coastal Mart, Inc., 908 S.W.2d 779, 781 (Mo. Ct. App. 1995). Plaintiffs' allegation that "Defendant Forquer through the exercise of ordinary care should have known that th......
-
Underwood v. Target Corp.
...as matter of law, placement of briefcase in hallway of doctor's office was open and obvious to plaintiff); Privitera v. Coastal Mart, Inc., 908 S.W.2d 779, 781 (Mo. Ct. App. 1995) (declining to find that parking lot riddled with holes on which woman caught heel of her shoe was open and obvi......