Proctor v. Waxler
| Decision Date | 02 July 1971 |
| Docket Number | No. 606,606 |
| Citation | 488 P.2d 108,1971 NMCA 106,83 N.M. 58 |
| Parties | Carolyn Kay PROCTOR and Roger K. Proctor, Plaintiffs-Appellants, v. James WAXLER et al., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
This is a 'slip and fall' on 'ice and snow' summary jdugment for defendants.
We reverse.
The City of Albuquerque is the owner, and Waxler and Johnson are operators of a public parking building at Fourth and Silver in Albuquerque, New Mexico. Carolyn Kay Proctor was a tenant who regularly occupied an automobile parking space for rent on the uncovered top floor. Johnson and Waxler maintained and operated the structure under a lease from the City of Albuquerque. The top floor, including the ramp leading to that floor, contains 28,647.79 square feet.
On December 2, 1968, the car park opened for business at 6:45 a.m., with Waxler arriving at 6:40 a.m. Proctor arrived at the car park around 8:15 a.m. It had snowed early in the morning, but it is not lcear whether it had stopped snowing before Proctor and another patron arrived. Upon arrival on the top floor of the car park, at the place where Proctor parked, there was one to three inches of serene, fresh snow. She parked in her regular place, alighted from the car and started walking slowly to the elevator to the west and north of her car, and did not notice that ice lay beneath the snow. After she walked about 15 feet from her car, she suddenly slipped and fell on snow or covered ice and landed on her back. Another patron, coming to her rescue, also slipped and fell on the snow-covered surface. Both of them then noticed the slipperiness of the walking surface. Proctor was wearing 'black patent flat heeled shoes,' and the snow was not above the shoe level.
No inspection was made by defendants of the top floor until 9:00 a.m., after Proctor's fall. Defendants had on the premises for use on ice and snow, shovels, brooms and salt. It was understood these implements would be used 'when necessary,' and Waxler was the one who 'would have used the implements and material.'
The trial court found there was no genuine issue as to any material fact, and that defendants were entitled to judgment as a matter of law.
We shall not repeat again the many rules which guide a trial court to summary judgment. The questions in this case are: Was there a genuine issue of fact as to, (1) defendants' negligence; (2) Proctor's assumption of risk; and (3) Proctor's contributory negligence?
There are three New Mexico cases on 'ice and snow' where a patron slipped and fell. Carter v. Davis, 74 N.M. 443, 394 P.2d 594 (1964); Crenshaw v. Firestone Tire & Rubber Co., 72 N.M. 84, 380 P.2d 828 (1963); Hallett v. Furr's, Inc., 71 N.M. 377, 378 P.2d 613 (1963). In each case, summary judgment was entered for defendant. Each case was decided before 1965.
In Crenshaw the court relied on 2 Restatement of the Law of Torts, § 343. This section was amended in Restatement of Law of Torts 2d, § 343 (1965), after each of the above cases had been decided. Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). This amended section is now applicable law in New Mexico. In need not be repeated here.
We are now concerned with the effect of the 1965 Restatement amendments on Crenshaw, Hallett and Carter. The trends establish that the 1965 amendments change the summary judgment rule therein contained. Consideration will be given only to those cases which discuss the amendments. We mention, however, in passing, Husband v. Milosevich, 79 N.M. 4, 438 P.2d 888 (1968). Crenshaw and Hallett are mentioned. Carter was applied. That case was tried to the court. It involved a slip and fall on the surface of a paved area which was icy or slippery. Plaintiff urged that the trial court should have found that defendants be charged with superior knowledge of the condition of the premises. The Restatement was not mentioned. Nevertheless, the court said:
We do not find this to be the law under the circumstances here. In a case such as this, the question of the knowledge of the condition is one of fact to be determined by the trier of fact. If the proprietor does not have superior knowledge of the unsafe condition while having acted as a reasonable man in attempting to keep informed, then he can hardly be charged with failure to give timely notice thereof. (Emphasis added.)
A study of the Comments discloses that § 343 should be read together with § 343A in which 'there are some situations in which there is a duty to protect an invitee against even known dangers, where the possessor should anticipate harm to the invitee notwithstanding such knowledge.' Section 343A reads as follows:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated. Restatement (Second) Torts § 343A (1965), at page 218. (Emphasis added).
We believe that an issue of fact of negligence arises as to the possessor's anticipation of harm to an invitee notwithstanding the known and obvious danger of ice and snow.
Defendants rely on Luebeck v. Safeway Stores, Inc., 152 Mont. 88, 446 P.2d 921 (1968). The facts involved are similar to those in the present case. A verdict for plaintiff was reversed and the cause dismissed because the trial court should have directed a verdict for the defendant store. The court did not follow § 343 or § 343A. It rejected the decision in Dawson v. Payless For Drugs, 248 Or. 334, 433 P.2d 1019 (1967), because Dawson purported to rely on the 2nd Restatement of Torts, § 343A, reasoning that the duty imposed upon the possessor 'arises only when the condition is unreasonably dangerous.' (Emphasis by the court). Dawson also held 'the jury could have reasonably found that (1) the probability of harm created by the icy condition of the parking lot was unreasonably great. * * *' (Emphasis by the court).
The Luebeck court said:
We reject the Oregon rationale that natural conditions such as obvious snow and ice create such an unreasonably dangerous condition as to require the owner of the premises to take certain precautions. (Emphasis by the court).
The Luebeck court followed cases like Crenshaw which did not consider the 1965 Restatement amendment. We reject Luebeck. But we do not express agreement with Dawson that the condition must be 'unreasonably dangerous.' Section 343A does not state this, and § 343 mentions a condition which 'involves an unreasonable risk of harm.' This phrase was defined in Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963), as follows:
It may generally be defined as one (a condition) attended with an unreasonable risk of harm, one that is hazardous or unsafe or one that constitutes a danger to persons travelling thereon. It does not have to be such that is very, very hazardous, very, very unsafe or very, very dangerous. (Emphasis by the court).
Dawson did not discuss § 343. It cites Peterson v. W. T. Rawleigh Co., 274 Minn. 495, 144 N.W.2d 555 (1966), which also relied on § 343A. The Minnesota court said:
Here a jury could find defendant should have foreseen that its elderly distributors would come to the loading dock for its products and attempt to negotiate the area between the dock and the entryway despite the slippery conditions. Under such circumstances we concur in the court's holding that the evidence supports a conclusion it was defendant's duty either to make the area safe for fedestrian travel or take appropriate measures to prevent the lot from being accessible. We therefore hold it was proper to submit defendant's negligence to the jury.
Kremer v. Carr's Food Center, Inc., 462 P.2d 747 (Alaska 1969), was decided December 22, 1969, and appears to be the latest decision in ice and snow cases under the Restatement. It holds that amended § 343 is determinative. It reversed a directed verdict in favor of Carr, where the parking lot was icy and Kremer slipped in a rut six inches deep. This was not a natural accumulation, but was unnatural or artificial accumulation of ice and snow. This distinction does not appear to have been significant to the Alaska court because the court did not discuss the importance of the difference in its decision. Comments from amended § 343 are recited to the effect that The court also applied § 343A. It pointed out that, even though ice and snow prevail in Alaska for many months, such climatic conditions do not negate 'the possibility that the possessor should have anticipated harm to the business invitee despite the latter's personal knowledge of the dangerous snow and ice conditions or the general obviousness of such conditions.'
The court further said:
What acts will constitute reasonable care on the part of the possessor of land will depend on...
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Valdez v. Warner, 9043
...harmful acts were being done or were about to be done is one of fact to be determined by the trier of fact. See Proctor v. Waxler, 83 N.M. 58, 488 P.2d 108 (Ct.App.1971), aff'd, 84 N.M. 361, 503 P.2d 644 (1972). Thus, we hold that plaintiff's requested jury instruction on premises liability......
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Proctor v. Waxler
...MONTOYA, Justice. This cause is before us on a writ of certiorari directed to the New Mexico Court of Appeals in Proctor v. Waxler, 83 N.M. 58, 488 P.2d 108 (Ct.App.1971), which reversed a summary judgment entered by the trial court in favor of the The pertinent facts, as set forth in the o......