Tichenor v. Lohaus

• Decision Date: 23 July 1982
• Docket Number: No. 44224,44224
• Citation: 212 Neb. 218,322 N.W.2d 629
• Parties: Robert A. TICHENOR, Appellee, v. J. J. LOHAUS, doing business as Jack and Jerry's Parking, Appellant.
• Court: Nebraska Supreme Court

Page 629

322 N.W.2d 629

212 Neb. 218

Robert A. TICHENOR, Appellee, v. J. J. LOHAUS, doing business as Jack and Jerry's Parking, Appellant.

No. 44224.

Supreme Court of Nebraska.

July 23, 1982.

Syllabus by the Court

1. Negligence: Invitor-Invitee. Even though a dangerous condition on land may be open and obvious or known by an invitee, the possessor of the land may owe a duty of reasonable care to the invitee if the circumstances are such that he should expect that the invitee will fail to protect himself against the hazard.

2. Negligence: Invitor-Invitee. Generally, an invitee, who has knowledge of a dangerous condition on the premises or where the dangerous condition is obvious, is negligent as a matter of law if he fails to use reasonable care to avoid injury. However, to constitute negligence as a matter of law the intentional exposure must be unreasonable.

3. Negligence: Invitor-Invitee. If the defendant possessor of land has made the invitee's exercise of a right or privilege impossible unless he exposes himself to risk of bodily harm, the invitee is not guilty of contributory negligence in so doing unless he acts unreasonably.

4. Negligence: Invitor-Invitee. Among the matters which must be considered in determining whether the invitee is guilty of negligence is the effect of distracting events or circumstances.

5. Negligence: Juries. Where different minds may reasonably draw different conclusions or inferences from the evidence adduced concerning the issues of negligence or contributory negligence and the degree thereof when one is compared with the other, such issues must be submitted to the jury.

Larry E. Welch and Joseph E. Jones of Gross, Welch, Vinardi, Kauffman & Day, P. C., Omaha, for appellant.

John P. Inserra of Inserra Law Office, P. C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

CLINTON, Justice.

The plaintiff-appellee brought this action in the District Court for Douglas County for personal injuries allegedly caused by the defendant's negligent maintenance of an icy parking lot ramp. The issues of the defendant's negligence, contributory negligence of the plaintiff, assumption of risk by the plaintiff, and plaintiff's damages were submitted to a jury after the evidence was presented. The jury returned a verdict for the plaintiff in the amount of $25,000, and the defendant appeals from that judgment to this court.

The defendant parking lot operator asserts that his motion for a directed verdict should have been granted because: (1) The evidence was insufficient to show that the defendant breached any duty owed to the plaintiff because the plaintiff had as much knowledge of the condition of the ramp as did the defendant. (2) The evidence showed that the plaintiff was guilty of contributory negligence as a matter of law. (3) The evidence demonstrated as a matter of law that the plaintiff assumed the risk of injury.

The evidence established the following facts, either directly and without dispute or by reasonable inference from the evidence. The plaintiff, Robert A. Tichenor, was employed by the Union Pacific Railroad Company at its headquarters at 1416 Dodge Street, Omaha, Nebraska. The defendant, J. J. Lohaus, was the operator of the Jack and Jerry's Parking lot. He, likewise, was employed by the Union Pacific Railroad at its headquarters. Plaintiff paid to the defendant the sum of $10 per month for the right to park his automobile in the lot. The parking lot is bordered by Davenport Street on the south, 13th Street on the east, 14th Street on the west, and an Interstate ramp on the north. The only sidewalk adjacent to the parking lot is on the Davenport Street side. The topography of the land is such that the western part of the lot, that is, the portion nearest 14th Street and the Union Pacific headquarters building, is below the level of Davenport Street and 14th Street by as much as 12 feet. The eastern portion of the lot adjacent to 13th Street is only slightly below street level. Access to and egress from the lot is accomplished by means of a curb cut on Davenport Street midway between 13th and 14th Streets leading onto an earthern ramp. The ramp itself, which is parallel to Davenport Street on the south side of the parking lot, is about 80 to 90 feet in length and descends westerly at a grade of 10 percent; that is, it drops about 1 foot for each 10 feet of its length. Abutting the ramp on the south and adjacent to the sidewalk is a stone retaining wall. The ramp is wider than is necessary to permit the passage of one car but not quite wide enough to permit the passage of two. It is covered with earth and gravel as is most of the lot.

On the morning of the accident, February 14, 1979, the plaintiff entered the parking lot by way of the ramp and noted the icy condition of the ramp and the lot. He proceeded slowly down the ramp and parked his car along the west retaining wall. He got out of his car and proceeded up the icy and slick ramp without incident. There had been no precipitation that day, and the sidewalks and streets were clear once he exited the lot.

At the end of the plaintiff's workday, he left Union Pacific headquarters around 5:15 p. m. and headed for his car. It was still daylight and the sidewalks were clear. But when the plaintiff arrived at the parking lot, he noted the conditions had changed on the ramp. It appeared as though something had been placed on the ramp to cause melting so that the ramp was muddy where cars had traveled, but slick and icy on either side of the traveled way. The temperature was below the freezing mark. The plaintiff began picking his way down the center of the ramp. He was wearing steel-toed engineer boots with rubber soles. Shortly after he started down the ramp, he became aware that a car or cars were approaching the ramp to depart. He then moved to the left toward the retaining wall in order that the cars might pass. As he moved to the side, his left foot stepped on a patch of ice, and he fell on the ramp about 2 to 3 feet from the adjacent retaining wall, suffering a fractured ankle. Two men, one of them Peter Larmon, whose car was approaching the ramp and who saw the plaintiff fall, came to his aid, loaded him into Mr. Larmon's van, and took him to Saint Joseph Hospital.

One of the allegations of negligence contained in the plaintiff's petition was that the defendant failed to adequately clear the ramp so that it would afford a reasonably safe passage. The defendant argues that he owed no duty to the plaintiff because the hazards of the icy ramp were as well known and apparent to the plaintiff as to the defendant. He relies upon the principles stated in Restatement (Second) of Torts § 343 (1965), which provides: "A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

"(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

"(c) fails to exercise reasonable care to protect them against the danger." He cites precedents of this court which have applied the principles of that section. Syas v. Nebraska Methodist Hospital Foundation, 209 Neb. 201, 307 N.W.2d 112 (1981); Crawford v. Soennichsen, 175 Neb. 87, 120 N.W.2d 578 (1963).

It is to be noted that subsection (b) of § 343 contains alternatives. Despite the fact that the danger may be open and obvious or known, the possessor of the land may owe the duty if he should expect that the invitee will fail to protect himself against the hazard. In this case the evidence would permit the jury to infer that the ramp was the only established way for persons, after parking their cars or returning to get them, to leave and enter the lot; that the ramp was for simultaneous use by vehicles and persons on foot; that a person on foot might be required to make way for vehicles entering or leaving; and that in such circumstances the invitee might fail or be unable to protect himself against the hazard resulting from icy conditions. The defendant fails to mention that § 343 is not a complete statement of the applicable rules. Restatement (Second) of Torts § 343 A (1965) discusses the matter of known or obvious dangers on the land and the duty of the possessor. It provides, among other things, that the possessor is not liable to invitees for physical harm caused to them by a condition on the land whose danger is known, unless the possessor should anticipate the harm despite such knowledge on the part of the invitee. The commentary to the above section discusses the ordinary cases where the possessor owes no duty. However, in commentary f. at 220, it discusses the other cases: "There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.

"Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his...