Szyplinski v. Midwest Mobile Home Supply Co., Inc.

• Decision Date: 09 April 1976
• Docket Number: No. 45756,45756
• Parties: Kari Marie SZYPLINSKI, a Minor, by Her Father and Natural Guardian, Richard J. Szyplinski, and Richard J. Szyplinski, Respondents, v. MIDWEST MOBILE HOME SUPPLY CO., INC., et al., Defendants and Third-Party Plaintiffs, Appellants, GRISWOLD MANUFACTURING CO., INC., Defendant and Third-Party Plaintiff, v. Bernice A. SZYPLINSKI, Third-Party Defendant, Respondent.
• Court: Minnesota Supreme Court

Page 306

241 N.W.2d 306

308 Minn. 152

Kari Marie SZYPLINSKI, a Minor, by Her Father and Natural

Guardian, Richard J. Szyplinski, and Richard J.

Szyplinski, Respondents, v. MIDWEST MOBILE HOME SUPPLY CO., INC., et al., Defendants and Third-Party Plaintiffs, Appellants, GRISWOLD MANUFACTURING CO., INC., Defendant and Third-Party Plaintiff, v. Bernice A. SZYPLINSKI, Third-Party Defendant, Respondent.

No. 45756.

Supreme Court of Minnesota.

April 9, 1976.

Syllabus by the Court

Where storekeepers allow children to accompany customers, their duty to eliminate conditions on their premises which are hazardous to children extends not only to known hazards but also to those which are discoverable by reasonable inspection.

Jardine, Logan & O'Brien and Michael J. Healey, St. Paul, for appellants.

Collins & Buckley and Michael J. Sauntry, St. Paul, and Edward E. Coleman, Anoka, for Kari and Richard Szyplinski.

Robert Gislason and Patrick M. Flynn, Edina, for Bernice Szyplinski.

Heard before ROGOSHESKE, TODD and BREUNIG, JJ., and considered and decided by the court en banc.

ROBERT J. BREUNIG, Justice. ^*

Defendant storekeepers appeal from an order denying their motion for judgment n.o.v. or for a new trial and from judgment entered on a jury verdict finding that a negligent display in their store was the proximate cause of injuries to plaintiff, a minor child. We affirm.

Midwest Mobile Home Supply Co., Inc., and Snowmobile Specialties, Inc., together maintained a retail store in which was displayed a shop lift, designed and produced by Griswold Manufacturing Co., Inc., for the purpose of raising and lowering snowmobiles incident to repairs. This lift had been displayed on the sales floor without accident every winter since 1968. On December 3, 1970, Richard and Bernice Szyplinski, with their daughter, Kari, aged 3 years and 9 months, entered the store to purchase snowmobile helmets. While her parents were paying for their helmets at the checkout counter, Kari climbed the shop lift, which toppled over upon her.

For her injuries, Kari, through her father as natural guardian, sued Midwest and Snowmobile Specialties for negligence in displaying the shop lift and Griswold for products liability. Defendants answered that Kari's injuries were due to her own negligence. Further, in a counterclaim against Richard Szyplinski and a third-party complaint against Bernice Szyplinski, defendants alleged negligent parental supervision and sought contribution or indemnity. The court found as a matter of law that Kari was not negligent. The jury found on special interrogatories that the parents were not negligent in supervising their child, that Griswold had not been negligent in design and production of the shop lift, but that Midwest and Snowmobile Specialties had displayed the lift in a negligent manner. Midwest and Snowmobile Specialties appeal.

On appeal, appellants do not challenge the jury findings that the parents were not negligent in supervising their child and that Griswold had not been negligent in design and production of the shop lift. However, with respect to the finding that they had displayed the lift in a negligent manner, appellants argue (1) that plaintiff's injury was not foreseeable because they had neither actual nor constructive notice that the lift was dangerous; (2) that they had a right to display the lift and the utility of their conduct outweighed the risk; (3) that the jury's answers to special interrogatories were perverse because storekeepers could not be negligent in displaying a product which was not inherently dangerous as a result of defective design or manufacture; and (4) that the intermeddling of plaintiff was the proximate intervening cause of this accident. ¹

In Peterson v. Balach, 294 Minn. 161, 173, 199 N.W.2d 639, 647 (1972), we prospectively abolished the traditional distinction between licensees and invitees in all causes of action arising after July 14, 1972. Since this cause of action arose on December 3, 1970, the trial judge correctly instructed the jury on the law of business visitors or invitees in language derived from 4 Hetland & Adamson, Minnesota Practice, Jury Instruction Guides (2 ed.) JIG II, 333.1 G-S.

In Gimmestad v. Rose Brothers Co., Inc., 194 Minn. 531, 536, 261 N.W. 194 196 (1935), this court adopted the rule applicable to this case now summarized in Restatement, Torts 2d, § 339, as follows:

'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

In Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 221, 89 N.W.2d 712, 717 (1958), we applied the Restatement rule to children licensees, stating:

'* * * A child who is a licensee has at least all the rights of a trespasser and probably some more.'

Under traditional terminology, the child of store customers would be a business invitee. Annotation, 44 A.L.R.2d 1319, 1329; Prosser, Torts (4 ed.) § 61, p. 387; Pepperling v. Emporium Mercantile Co., Inc., 199 Minn. 328, 330, 271 N.W. 584, 585 (1937). As such, plaintiff is entitled to greater protection than a licensee. Restatement, Torts 2d, § 343, comment B.

Appellants' first argument focuses on condition (b) of the Restatement, Torts 2d, § 339. They contend that they had neither actual nor constructive notice that the display presented an unreasonable risk of harm to children because no accidents had occurred before. However, appellants overlook their duty toward...