Sherman v. Arno

• Decision Date: 03 July 1963
• Docket Number: No. 7083,7083
• Parties: Max SHERMAN, Mortimer M. Levin, and Michael Robinson, dba Fiamingo Hotel, Appellants, v. Juanita Marie ARNO, Appellee.
• Court: Arizona Supreme Court

Page 741

383 P.2d 741

94 Ariz. 284

Max SHERMAN, Mortimer M. Levin, and Michael Robinson, dba Fiamingo Hotel, Appellants, v. Juanita Marie ARNO, Appellee.

No. 7083.

Supreme Court of Arizona, In Division.

July 3, 1963.

Chandler, Tullar, Udall & Richmond, Tucson, for appellants.

Udall & Udall, Johnson, Darrow, D'Antonio, Tucson, Hayes & Morales, for appellee.

LOCKWOOD, Justice.

Plaintiff (appellee) Juanita Marie Arno, obtained a judgment against defendants (appellants) Max Sherman, Mortimer M. Levin, and Michael Robinson, dba Flamingo Hotel, for injuries sustained by plaintiff in a fall caused by stumbling over a single step down from a sidewalk on defendants' premises while she was there in the capacity of a business invitee. Defendants have appealed from this judgment and the failure of the trial court to grant defendants' motions for a directed verdict at various stages of and after the trial on the ground that there was insufficient evidence to sustain a finding of negligence on the part of the defendants.

The facts, stated in the light most favorable to sustaining the judgment and allowing plaintiff every reasonable inference, are as follows: On March 30, 1958, plaintiff and a friend drove to the Flamingo Hotel for the purpose of lunching at the restaurant operated there. It was a bright sunny Sunday afternoon when they emerged from the restaurant at its south exit to go to plaintiff's car, which she had left in the parking lot across from this exit. There was a driveway between the building wall containing the exit and the parking lot, and because there was quite a bit of traffic on the driveway, she decided not to cross the drive until there was an open space between the moving cars and she had a clear view of her car. A paved walkway (hereafter referred to as the 'walk') ran parallel to and between the building and the driveway in a westerly direction till it met the public sidewalk about sixty-four feet from the exit.

Plaintiff was familiar with the hotel, but she testified that she had never used this walk before, nor had she previously even known it was there. While waiting for traffic on the driveway to clear she moved along the walk toward the public sidewalk. About fifteen feet from the west end of the walk there was a single step down which plaintiff testified she did not notice or see as she came out of the restaurant. Because her attention was drawn to the automobiles passing by she continued walking until, as she related at the trial:

'A. Well, I was walking down the sidewalk and all of a sudden I just, there was no sidewalk there and my--did you want me to demonstrate?

'Q. No. Just tell us, describe it as best you can.

'A. I took a step. All I knew, I was just down and I had fallen and hit the edge of my hip against the cement edge of that step.'

That plaintiff was severely injured from her fall is not in issue here.

The walk itself is a terra cotta (reddish) color, and was 'glaring bright' in the afternoon sun on the day in question, according to plaintiff's testimony. Although the sidewalk is relatively level, there is one step at the south exit from the restaurant and two more steps where the west end of the walk intersects with the public sidewalk, in addition to the step where plaintiff's accident occurred. The step where plaintiff fell is approximately four to five inches in height. The riser is painted white, and is visible as one approaches from the west but not from the east as plaintiff approached it. A single white stripe, about an inch and a half wide is painted along the top or nose of the step across the walk. There were no other signs, warnings or handrails at the step. A witness, Irvin E. Larsen, testified that it was his duty to keep the stripe painted in order to make it visible to persons using the walk. He further testified that if the step was not painted so that it would be plainly visible, then 'someone would have fallen down on his duty.' Exhibit 4, a photograph of the step, taken some time after the accident, shows that the white stripe on the step is nearly worn off. The plaintiff testified:

'Q. Exhibit 4, Miss Arno, shows a strip of white paint or what has been a strip of white paint along the upper edge of that step. Can you tell us whether or not there was any paint on that step that day as you approached it?

'A. Well, I can almost positively say there wasn't any paint visible at all.'

The basis of plaintiff's action was that defendants were negligent in the construction and design of the step in having it placed in such an unusual and unexpected place on the walk; that they had neglected to keep the white paint on the step properly maintained and that they were negligent in not having some type of warning to users of the walk that a step was located there.

Defendants maintained however that they had exercised the entire duty required of them to use due care in making and maintaining the premises reasonably safe for the customers, and that as the step was openly and obviously visible no warning was required to be given to any users of the walk. They also asserted sole and contributory negligence on the part of the plaintiff.

The issues of sole and contributory negligence of the plaintiff were submitted to the jury and determined adversely to defendants. There was sufficient evidence from which the jury could have reached this decision, and its determination is conclusive. City of Phoenix v. Weedon, 71 Ariz. 259, 226 P.2d 157 (1950).

The question before us are: Was the trial judge justified in allowing the jury to determine whether the condition was dangerous; and if so was it due either to negligent construction or design, or improper maintenance, and was the existing condition open and obvious. Defendants claim that allowing these questions to be submitted to a jury would in effect require defendants to be insurers of business invitees, when their duty was merely to exercise the care necessary to make the premises reasonably safe. It is true that defendant is not liable to invitees for injuries resulting from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to defendant as the owner or occupant of the premises and defendant is not bound to warn plaintiff of such a peril or risk. Moore v. Southwestern Sash & Door Co., 71 Ariz. 418, 228 P.2d 993 (1951); Restatement, Torts § 343; 38 Am.Jur., Negligence § 97. Plaintiff readily admits that these principles of law are correct, but disagrees with defendants' application of the law to the facts herein.

Defendants cite a number of cases involving a fall occasioned by a change of elevation which hold for the defendants therein. Many of these cases fall into the category where the court found as a matter of law the plaintiff was contributorily negligent. ¹ Others involve falls on entering or leaving buildings or stepping off from the sidewalk to the street. ² Seal v. Safeway Stores, 48 N.M. 200, 147 P.2d 359 (1944) upon which defendants rely heavily affirmed a directed verdict for the defendants when a customer fell due to the private store walk being some three or four inches higher than the adjoining store parking area. The essence of the case was that ...