Stetz v. Skaggs Drug Centers, Inc.

• Decision Date: 21 September 1992
• Docket Number: No. 12764,12764
• Citation: 840 P.2d 612,114 N.M. 465,1992 NMCA 104
• Parties: Mary Ann STETZ, Plaintiff-Appellee, v. SKAGGS DRUG CENTERS, INC., Skaggs Companies, Inc., and Fair Plaza, Inc., Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 612

840 P.2d 612

114 N.M. 465

Mary Ann STETZ, Plaintiff-Appellee, v. SKAGGS DRUG CENTERS, INC., Skaggs Companies, Inc., and Fair Plaza, Inc., Defendants-Appellants.

No. 12764.

Court of Appeals of New Mexico.

Sept. 21, 1992.

[114 N.M. 466] Mark J. Klecan, Klecan, Childress & Huling, Albuquerque, for plaintiff-appellee.

Matthew P. Holt, Sager, Curran, Sturges & Tepper, P.C., Las Cruces, for defendants-appellants.

OPINION

PICKARD, Judge.

Defendants appeal from the trial court's judgment awarding plaintiff $10,000 in damages from Skaggs and $18,000 in damages from Fair Plaza, Inc., after finding that plaintiff suffered a total of $40,000 in damages from the incident giving rise to this lawsuit. Defendants contend that the trial court erred in determining that (1) defendants were obligated to protect plaintiff against an open and obvious danger, (2) Skaggs had a duty to maintain the sidewalk where plaintiff fell, (3) Fair Plaza was liable when it was not a proper party to the proceedings, and (4) the evidence of aggravation was sufficient to sustain the award of damages. Other issues raised in the docketing statement but not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.1985). We affirm on issues 1, 3, and 4, reverse on issue 2, and remand for further proceedings.

1. LIABILITY FOR AN OPEN AND OBVIOUS DANGER

Plaintiff was injured when she fell on a sidewalk leading to the Skaggs store in the Fair Plaza Shopping Center while on her way into the store. An area of the sidewalk next to the wall and about three feet from the door was in disrepair. Plaintiff did not dispute the obvious nature of the sidewalk disrepair at trial, nor does she contest it on appeal. It also appears that the conspicuous condition of the defect was taken into account by the trial court in determining that plaintiff was comparatively negligent in trying, but apparently failing, to walk around it. Defendants maintain that because of the "open and obvious" quality of the disrepair, the trial court erred in finding that they had any duty to warn plaintiff about it or to protect her from it.

Both parties rely on this court's opinion in Davis v. Gabriel, 111 N.M. 289, 804 P.2d 1108 (Ct.App.1990). In Davis, the trial court directed a verdict for the defendant-lawyer in a malpractice suit. The basis of the directed verdict was that the plaintiff would not have recovered in the underlying suit against a contractor because of the open and obvious nature of debris which caused the plaintiff's fall. Id. at 290, 804 P.2d at 1109. We reversed the judgment, holding that the plaintiff's knowledge of the hazard would not necessarily bar his recovery in the underlying suit because the scope of the contractor's duty was to be determined by reference to the foreseeable behavior of "reasonably careful invitees." Id. at 292, 804 P.2d at 1111.

The reasonably-careful-invitee test of Davis has been abrogated by our supreme court in Klopp v. Wackenhut Corp., 113 N.M. 153, 157, 824 P.2d 293, 297 (1992), holding that "in a place of public accommodation, an occupier of the premises owes a duty to safeguard each business visitor whom the occupier reasonably may foresee could be injured by a danger avoidable through reasonable precautions available to the occupier of the premises." Under Klopp, neither the open and obvious nature of a defect nor the injured party's own negligence constitutes an automatic bar to recovery. Id. Rather, it is only when the contributory negligence of the business visitor is so extraordinary as to have been unforeseeable that the occupant's failure to take precautions against an open and obvious risk does not constitute a breach of duty. Id. at 158, 824 P.2d at 298. Klopp directs the trial court to determine first as a matter of law whether "the contributory negligence of the business visitor was foreseeable in the face of known or obvious dangers," and, if it was, to instruct the jury to decide whether the occupier of the premises breached its duty to use ordinary care to keep the premises safe for such visitors. Id. at 158-59, 824 P.2d at 298-99.

In this case, the trial court determined that plaintiff stumbled and fell as a result of a "dangerous and defective area," and that "[b]oth Skaggs and Fair Plaza should have foreseen that it was reasonable to expect that someone in the position of the plaintiff attempting to enter the leased premises could have fallen and sustained injury." There was evidence to show that plaintiff tripped as she attempted to avoid the defective area, and that the area had been allowed to remain in disrepair for as long as a year before plaintiff's fall. The evidence before the court also included an admission by Skaggs' manager that the area was dangerous, and testimony as to his complaints concerning the hazard, which failed to result in its repair or other measures to protect or warn business invitees. Based on this evidence, the trial court could conclude that plaintiff's contributory negligence was foreseeable, and that defendants were liable for failing to keep the premises in a reasonably safe condition. See id.

Even under the state of the law prior to Klopp, defendants' first issue would be without merit. Defendants' argument is premised on the fact that plaintiff was negligent and, therefore, they had no duty to take steps that are necessary only to protect the negligent. This argument fails because the conduct of the specific invitee is irrelevant under Davis in determining the duty. Thus, ignoring plaintiff's negligence, there is a duty here for the same reason a duty existed in Davis.

2. LIABILITY OF SKAGGS

Defendants argue that because Skaggs neither owned nor occupied the exact portion of land where plaintiff fell, and because its right to make exterior repairs under its lease with Fair Plaza was limited, it owed no duty to plaintiff "under any set of circumstances." We agree.

Both sides have cited Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (1991), as controlling authority on this point. Our task is to determine how Bober applies in this case. The foundation of premises liability is that owners, occupiers, or possessors of premises have responsibility only for hazards arising on or from their premises. See SCRA 1986, 13-1309 (Repl.1991) (duty to keep owner's or occupant's premises safe); SCRA 1986, 13-1319 (Repl.1991) (consequences of dangerous condition on defendant's premises). Thus, in the context of a shopping mall, it is black-letter law that it is the mall owner, and not the various shopkeepers, who has legal responsibility for conditions in the common areas of a shopping center. 62 Am.Jur.2d Premises Liability Sec. 445 (1990) (citing, inter alia, Torres v. Piggly Wiggly Shop Rite Foods, Inc., 93 N.M. 408, 410, 600 P.2d 1198, 1200 (Ct.App.1979)).

Nothing the supreme court said in Bober is to the contrary. That case merely applied the traditional rule that one who owns or controls property has a duty to refrain from creating or permitting conditions on such property that will foreseeably lead to an unreasonable risk of harm to others beyond the property's borders. Bober involved a hazardous condition on a landowner's premises spilling over onto the property of another. See also Monett v. Dona Ana County Sheriff's Posse, 114 N.M. 452, 840 P.2d 599 (Ct.App.1992) (fair was potentially liable for hazard on its premises that spilled over onto posse's property (mixture of golf carts and crowds of pedestrians), but was not potentially liable for dangerous condition created by posse on its own property (configuration of gate and ticket area)).

Plaintiff here also relies on a provision in the lease between Skaggs and Fair Plaza giving Skaggs the right under certain circumstances to make repairs and then be reimbursed by Fair Plaza. The lease agreement does not help plaintiff. The circumstances set forth in the lease were limited to emergencies when the landlord could not be located by telephone and the cost of the repairs did not exceed $200. There was no evidence adduced at trial sufficient to support a finding that any of these circumstances existed. Thus, plaintiff cannot rely on the lease to create a duty on the part of Skaggs.

Nor does Mitchell v. C & H Transportation Co., 90 N.M. 471, 565 P.2d 342 (1977), support plaintiff's right to recover against Skaggs. While that case stated a duty to provide safe ingress and egress, the duty there was inextricably intertwined with certain highway regulations that extended the landowner's or lessor's responsibility onto the highway right of way when there was a driveway involved. We acknowledge here, as we did in Monett, that language in Mitchell seeming to require that the duty to provide safe ingress and egress extends " 'within limitations dictated by the facts of the case, beyond the precise boundaries of [the owner's] premises.' " Mitchell, 90 N.M. at 475, 565 P.2d at 346 (quoting McDonald v. Frontier Lanes, Inc., 1 Ill.App.3d 345, 272 N.E.2d 369, 372 (1971)). In Monett, we said that the showing of sole control over the posse area by the posse was a limitation dictated by the facts of that case. To a like effect, in this case, the lease provision, giving Skaggs a limited right to make repairs under certain well-defined circumstances, would be a similar limitation.

Because there is a trend toward recognizing that property owners have a duty to business invitees to remedy even open and obvious dangers, see, e.g., Klopp, 113 N.M. at 157, 824 P.2d at 297, it is especially important that appellate courts provide firm guidelines as to when such a duty arises. The Mitchell language provides no such guidelines. If the language imposes on Skaggs a duty to repair a defect in the sidewalk near its entrance, does that duty extend farther down the sidewalk? Into the mall parking lot? Into the public street? Was it shared with other tenants of the mall? Who is responsible if Skaggs...