Smith v. Mill Creek Court, Inc.

• Decision Date: 21 March 1972
• Docket Number: No. 71-1195.,71-1195.
• Citation: 457 F.2d 589
• Parties: Neva I. SMITH, Appellee, v. MILL CREEK COURT, INC., Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 589 (1972)

Neva I. SMITH, Appellee, v. MILL CREEK COURT, INC., Appellant.

No. 71-1195.

United States Court of Appeals, Tenth Circuit.

March 21, 1972.

Richard C. McLean, Sheldon, Bayer, McLean & Glasman, Denver, Colo., for appellant.

Virgil D. Dohe, of Corbridge & Dohe, Denver, Colo., for appellee.

Before HAMLEY^*, SETH, and McWILLIAMS, Circuit Judges.

SETH, Circuit Judge.

This is an appeal by defendant-appellant, Mill Creek Court, Inc., from a judgment of the United States District Court for the District of Colorado entered on a jury verdict in a personal injury diversity suit.

The record shows that plaintiff had spent some forty-five minutes visiting shops in a shopping center of defendant at Vail, Colorado, during the winter. As she was leaving by a covered walkway, she slipped and fell, sustaining injuries which required medical attention. The walkway where she fell was owned and controlled by the defendant. From evidence presented at trial, there is little if any doubt that the accident was caused by plaintiff stepping on ice which had been covered by snow.

The defendant moved for dismissal at the close of the plaintiff's case on the ground that no notice to it of the condition of the walkway had been shown. The motion was denied, as was defendant's motions for directed verdict, judgment n. o. v., and for a new trial. The court also refused defendant's request to instruct the jury on contributory negligence and assumption of risk.

On this appeal the defendant questions the ruling of the trial court as to the standard of care owed to the plaintiff and the sufficiency of the evidence to show a breach of this duty. Defendant also challenges the trial court's refusal to instruct the jury on contributory negligence and assumption of risk.

The test for the sufficiency of the evidence in ruling on motions is a federal one in diversity cases such as this. Weeks v. Latter-Day Saints Hospital, 418 F.2d 1035 (10th Cir.); Kiner v. Northcutt, 424 F.2d 222 (10th Cir.). The standard is set out in the last cited case, and this court will not reverse the trial court's determination of the issue unless we can say the court was clearly wrong. Chicago, Rock Island & Pacific Ry. v. Howell, 401 F.2d 752 (10th Cir).

It is apparent that liability is dependent upon a showing that the defendant had either actual or constructive notice of the hazard which produced Mrs. Smith's injuries. Appellant urges that the trial record is completely devoid of any evidence upon which a finding of any notice could be based, and thus argues that its motions should have been granted.

Appellant relies strongly on Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391 (1955), as a statement of Colorado law on the notice issue. There the plaintiff slipped and fell on an icy parking lot. She presented no evidence to show when the ice had formed and how long it had been on the pavement prior to her injury. The defendant showed that no snow had fallen within eighteen hours of plaintiff's accident. The trial court dismissed the case because of plaintiff's inability to form a basis for jury determination that the condition had existed for any length of time. In Kanter v. City & County of Denver, 153 Colo. 389, 386 P.2d 349 (1963), the plaintiff slipped on an icy sidewalk and sued for her injuries. Evidence showed that there had been numerous snowfalls in Denver three weeks before the plaintiff's fall, but that on the day of the accident the sidewalk was generally clear and dry. The court affirmed the judgment of the trial court dismissing the claim on the ground that there was no evidence as to when or how the ice formed. Also see Miller v. Crown Mart, Inc., 162 Colo. 281, 425 P.2d 690 (1967).

In Miller, as in Brent and Kanter, it was held that no inference of notice, either actual or constructive, could be drawn from the evidence presented. Several related cases, most notably King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006 (1959), are cited by the appellee as controlling the present case. In King Soopers, the plaintiff slipped and fell on a patch of ice in defendant's parking lot. The court held that there was no actual notice of the hazard by defendant, but it could still be held liable where there was evidence that there had been intermittent snow and freezing spells prior to the time of the injury. Distinguishing Brent, the Supreme Court said:

". . . But we agree with the conclusion of the trial court that that case is distinguished from the case at bar. The lack of evidence to form a basis for jury determination that the condition had existed for any length of time was there the determining factor. The Court pointed out that the burden was upon the plaintiff to establish that the condition complained of was present for a time of sufficient duration prior to the accident to enable a prudent man to discover and remedy it. Another distinguishing fact is the more hazardous condition apparent here, created by the snow covering the ice. Furthermore, the icy area in the present case sloped downward from the ridge so as to create a risk to a person carrying a sack of groceries. The additional fact that defendant here seemingly made no effort to clear the areas or to give warning convinces us that neither Brent v. Bank of Aurora, supra nor the decision of the Court in F. W. Woolworth Co. v. Peet, 132 Colo. 11, 284 P.2d 659 (which was relied on in the Brent case) are here applicable."

In the instant case, as in King Soopers, there was testimony at trial that the place where the plaintiff was walking when she fell was partially covered with snow and the ice on which plaintiff slipped was snow-covered. Furthermore, there was testimony that appellant had not removed snow from the area. It can be seen that, on the facts, the instant case aligns more readily with King Soopers than with Brent. Appellant contends that Mrs. Smith should have presented evidence of the precise weather conditions in Vail on the day of the accident, including variations in temperatures, as did the plaintiff in King Soopers. Although the court in King Soopers did point out that freezing temperatures coming on the heels of a thaw form ice, and held the defendant knowledgeable of that fact, no more detailed showing than was here made is required. The cited case set out an example...