Proctor v. Waxler

Decision Date28 July 1972
Docket NumberNo. 9301,9301
Citation84 N.M. 361,503 P.2d 644,1972 NMSC 57
PartiesCarolyn Kay PROCTOR and Roger K. Proctor, Plaintiffs-Appellants, v. James WAXLER et al., Defendants-Appellees.
CourtNew Mexico Supreme Court
Willard F. Kitts, Albuquerque, for plaintiffs-appellants
OPINION

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 defendants.

The pertinent facts, as set forth in the opinion of the Court of Appeals in Proctor v. Waxler, supra, are as follows:

'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 clear 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 Court of Appeals reversed the summary judgment entered by the trial court in favor of the defendants on the grounds that a gemiune issue of fact existed for the jury. In so doing, it applied Restatement (Second) of Torts § 343 (1965), holding that the amended section was now the applicable law of New Mexico. The Court of Appeals further held that, under the circumstances, the affirmative defense of assumption of risk could not be decided as a matter of law because the 'reasonable alternative course of conduct,' as set forth in Restatement (Second) of Torts § 496E (1965), presented a factual question which could not be decided as a matter of law. The Court of Appeals also held that plaintiff's conduct, in walking from her car at the time of the fall, created a genuine issue of fact on the issue of contributory negligence.

There are three decisions in New Mexico concerning the question of liability in so-called 'slip and fall' cases involving ice and snow. In each case summary judgment in favor of the defendant was affirmed. 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); and Hallett v. Furr's, Inc., 71 N.M. 377, 378 P.2d 613 (1963). Because these cases were decided prior to the amendment of § 343, Restatement, supra, one question presented here is whether to adopt the principles stated in the amendment and thereby overrule the prior 'slip and fall' cases involving ice and snow hazards as decided by this Court.

The opinion of the Court of Appeals in this case apparently assumes that the courts of this State must consider the amendments to the Restatement of the Law of Torts as binding precedent that must be followed, even though contrary to some of the opinions of this Court. We granted certiorari because of the importance and timeliness of the need to decide the applicability of the Restatement, supra, as now amended, and its conflict with our prior decisions.

In discussing the issues involved herein, we are mindful that we are only concerned whether there exists a fact question to be determined by the fact finder, which precludes the granting of summary judgment.

A reading of the trilogy of 'slip and fall' cases involving ice and snow decided by this Court, where summary judgment was entered in behalf of the property owner, reveals that the Court relied on § 343, Restatement, supra, which was amended in 1965 after these above-mentioned cases were decided. To resolve the question of what effect shall be given to the 1965 amendment, it is necessary to examine § 343, Restatement, supra, as amended, which reads as follows:

' § 343. Dangerous Conditions Known to or Discoverable by Possessor

'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.'

The comment to § 343 in paragraph (a) states that § 343 should be read together with § 343A, which considers the effect of the fact that the condition of the land is known to the invitee, or is obvious to him, as well as the fact that the invitee is a patron of a public utility. Further comment under the same section is made under paragraph (b) as follows:

'As stated in § 342, the possessor is under no duty to protect the licensee against dangers of which the licensee knows or has reason to know. On the other hand, as stated in § 343A, 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, Restatement, supra, states with respect to known or obvious dangers, as follows:

' § 343A. Known or Obvious Dangers

'(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.'

Comment (f), following § 343A supra, at 220, reads as follows:

'f. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.'

The rule, as stated in § 343A supra, has been applied in...

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