Raff v. Acme Markets, Inc.

• Decision Date: 11 October 1967
• Docket Number: No. 576,576
• Citation: 233 A.2d 786,247 Md. 591
• Parties: Margaret Frances RAFF et vir. v. ACME MARKETS, INC., et al.
• Court: Maryland Court of Appeals

Page 591

247 Md. 591

233 A.2d 786

Margaret Frances RAFF et vir. v. ACME MARKETS, INC., et al.

No. 576.

Court of Appeals of Maryland.

Oct. 11, 1967.

Paul M. Nussbaum, Hyattsville (Josef B. Brown and Reichelt, Nussbaum & Brown, Hyattsville, on the brief), for appellants.

Thomas A. Farrington, Upper Marlboro (Hal C. B. Clagett, and Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief), for appellees.

Before HAMMOND, C. J., HORNEY, OPPENHEIMER, McWILLIAMS, and FINAN, JJ., and ROBERT E. CLAPP, Jr., Special Judge.

McWILLIAMS, Judge.

New Year's Day, 1963, was cold. At Washington National Airport the temperature did not rise above 27. Five inches of snow lay on the ground. On Wednesday, the 2nd, the thermometer went no higher than 33. Thursday's maximum was 36, Friday's was 38. On Saturday the temperature ranged from a low of 21 to a high of 38. The snow on the ground had shrunk to 3 inches. Neither rain nor snow had fallen at the Airport during the 5 day period.

Ten miles to the north of the airport, near Hyattsville, in Prince George's County, is the Kent Village Shopping Center. One of its lessees is Acme Markets, Inc. ¹ At about 1:00 P.M. on Saturday the Raffs (appellants) entered Acme's parking lot. In the car with them was Edward Morse, Mrs. Raff's brother. Raff parked on the far side of the lot about 70 feet from the entrance to Acme's store. Mrs. Raff, who was 46 at the time, left to do the shopping. The two men remained in the car.

As she walked across the parking lot to the store she noticed there 'was lots of ice and snow and ruts from the car wheels' and she said she had to 'take (her) time and step over them and be careful.' It was 'very cold' and although there had been no snowfall that day she 'thought it (had) snowed flurries the night before.'

When she came out of the store about an hour later she was pushing ahead of her four bags of groceries in one of the wheeled wire baskets provided by Acme. After she came to the 'end of the sidewalk' she had taken 'about three steps on the ramp,' holding on to the basket, when 'all of a sudden * * * (her) feet went out from under * * * (her) and the basket went out in the parking lot * * *.'

The 'sidewalk' mentioned by Mrs. Raff is actually a part of Acme's store. It is an exterior masonry platform, over which there is a canopy. The 'sidewalk' and the main floor of the store are on the same level. A number of masonry platforms, each about 8 by 15 feet, extend from the 'sidewalk' out into the parking lot. Although the witnesses called them ramps, they are level with the sidewalk and inclined only at the outer ends. She intended, she said, to leave the basket on the ramp and have her husband bring the car alongside so that he could put the bags of groceries into the car. This was her usual practice, she testified.

There was neither ice nor snow on the sidewalk but there was snow on the ramp. Asked why she didn't 'go on down a little further and off the sidewalk' she said she 'figured the ramp would be the safer of the two * * *.' After she fell she learned that there was ice under the snow.

Raff corroborated his wife's testimony that the parking lot was 'full of ice and ruts.' He saw his wife in his rear view mirror just as she fell. He and Morse hurried to her side. The surface of the ramp was smooth, he said, and covered with 'powdery snow.' Where the snow was pushed away by her fall he saw ice.

Morse testified he saw no ruts on the ramp nor any footsteps except where Mrs. Raff fell. He said there was ice under the snow.

The case was tried on 3 October 1966 before Loveless, J. and a jury. At the conclusion of the plaintiffs' case the court directed a verdict for the defendants. Acme contends, as the trial judge seems to have found, that there was no evidence of primary negligence and that even if there had been, Mrs. Raff was guilty of contributory negligence as a matter of law. In these circumstances we are required to consider the evidence (including the official weather data) and all logical and reasonable inferences deducible therefrom in a light most favorable to the appellants.

I.

Acme insists there is no evidence to support a finding that it knew or by the exercise of reasonable care could have known of the hazardous condition of the ramp. 'It would be pure speculation,' Acme argues, 'to suggest that this condition existed for such a length of time that * * * (Acme) would have had an opportunity to observe and remedy the condition * * *' or to suggest that it should have anticipated that business invitees would fail to discover the hazard and to protect themselves against it. We do not see it quite that way.

Appellants suggest, justifiably we think, that our recent decision in Honolulu Ltd. v. Cain, 244 Md. 590, 224 A.2d 433 (1966), if not controlling, is nothing less than very persuasive. There snow had been removed from the blacktopped surface of a shopping center parking lot and piled up on the grassed area around the edges. Whenever melting occurred the water ran across the lot to drains on the opposite side. The plaintiff parked her car at a spot where the blacktop was wet and walked safely to one of the stores. While she was shopping the temperature, which had been 33 degrees for some hours, fell to 31 degrees and a patch of thin ice formed near her car, upon which, when she returned, she slipped and fell. An attendant employed to look after the parking lot had quit for the day about two hours before the accident. The trial judge submitted the issues of primary and contributory negligence to the jury. In affirming his decision we said:

'The duty of an occupant of land toward his business 'invitee' rested, in its inception, upon an implied representation of safety, 'a holding out of the premises as suitable for the purpose for which the visitor came * * *', Prosser, Business Visitors and Invitees, Selected Topics of the Law of Torts 243, 261 (1953). The word 'invitee' itself, conveys the idea that the place is held out to the visitor as prepared for his reception. The occupant does not, of course, become an insurer of the safety of those who accept his invitation. But when the public is led to believe that premises have been offered for its entry, the law is clear that the occupant assumes a duty of reasonable care to see that the place is safe for the purpose. The duty extends to those who are injured when they enter in response to the invitation.

'The Restatement of the Law of Torts, Second, sec. 343, sets forth the standards governing the relationship of landowner and business invitee with respect to a hazardous condition. The landowner is subject to liability for harm caused by a natural or artificial condition on his land if (a) he knows or by the exercise of reasonable care could discover the condition, (b) he should expect that invitees will not discover the danger, or will fail to protect themselves against it, (c) he invites entry upon the land without (1) making the condition safe, or (2) giving a warning. These principles have been approved many times by this Court. Yaniger v. Calvert Bldg. & Const. Co., 183 Md. 285, 289, 37 A.2d 263, 265 (1944); Evans v. Hot Shoppes, Inc., 223 Md. 235, 239, 164 A.2d 273, 276 (1960); Morrison v. Suburban Trust Co., 213 Md. 64, 130 A.2d 915 (1957); Glaze v. Benson, 205 Md. 26, 106 A.2d 124 (1954).' Id. 244 Md. at 595-596, 224 A.2d at 435-436.

Appellants also lean heavily on King Soopers, Inc. v. Mitchell, 140 Colo. 1119, 342 P.2d 1006 (1959), where the plaintiff fell on a patch of ice in a supermarket parking lot. He testified he noticed the icy condition as he alighted from his car and that he warned his wife of the danger. After he finished his shopping he returned, laden with a bag of groceries, by a somewhat different route but he slipped and fell before getting to his car. The defendant had made no effort to remove the ice nd snow from the parking lot. The following excerpt from the opinion of the trial judge denying defendants' motion for judgment N. O. V., which the appellant court quoted with approval, seems especially relevant:

"* * * snow commenced falling on March 23d, 1955, at 6:35 a.m., and continued falling until approximately noon of March 25th; that during said period there were melting temperatures, but after the snow ceased at noon of March 25th, the temperature dropped well below freezing and continued at such temperature until after the accident at 9:30 a.m., March 26th.

"It would require a strained interpretation of this exhibit (weather data) to hold that the defendant did not have knowledge of the existence of the moisture, snow, and ice which prevailed for approximately three days previous to the accident, and that the same would create a dangerous condition for customers...