Turcol v. Shoney's Enterprises, Inc., 43228

• Decision Date: 14 September 1982
• Docket Number: No. 43228,43228
• Citation: 640 S.W.2d 503
• Parties: Vanita TURCOL, Plaintiff-Respondent, v. SHONEY'S ENTERPRISES, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 503

640 S.W.2d 503

Vanita TURCOL, Plaintiff-Respondent, v. SHONEY'S ENTERPRISES, INC., Defendant-Appellant.

No. 43228.

Missouri Court of Appeals,

Eastern District,

Division Five.

Sept. 14, 1982.

Motion for Rehearing and/or Transfer

Denied Oct. 15, 1982.

Application to Transfer Denied

Nov. 15, 1982.

David M. Duree, St. Louis, for defendant-appellant.

Sidney Fortus, Clayton, for plaintiff-respondent.

KELLY, Chief Judge.

Shoney's Enterprises, Inc., appeals from a judgment of the Circuit Court of the City of St. Louis entered on a jury verdict in favor of Venita Turcol in a sum of $12,000 for personal injuries sustained by Mrs. Turcol when she slipped and fell on a parking lot of a restaurant operated by the appellant (as Shoney's Enterprises, Inc. shall hereinafter be identified) at 2711 Dunn Road in St. Louis County, Missouri.

Appellant initially contends on appeal that respondent (as Mrs. Turcol shall hereinafter be identified) failed to make a submissible case because she failed to plead, prove or submit to the jury a required element of her case, i.e. that she neither knew nor could have known of the alleged defective condition, she claims caused her injuries the trial court erred, therefore, in overruling (1) its motion for directed verdict at the close of all of the evidence in the case and (2) its motion for judgment n.o.v.

Appellant's argument in support of this contention is based, in part at least, on the second paragraph in M.A.I. 22.03 that: "... plaintiff did not know and by using ordinary care could not have known of this condition, ..."

It also relies on the rule of law respecting the duty of a possessor of land towards a business invitee and liability for harm caused to a business invitee stated in Harbourn v. Katz Drug Co., 318 S.W.2d 226, 228[1-3] (Mo.1958), Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 107[2-6] (Mo.1973), and Kelly v. Dairy Queen Enterprises, Inc., 581 S.W.2d 903, 905[2-3] (Mo.App.1979).

This rule is that a possessor of land is subject to liability for bodily harm caused to a business invitee if, but only if, he (a) knows or in the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care (1) to make the condition reasonably safe, or (2) to give a warning adequate to enable them to avoid the harm.

The duty to keep premises safe for invitees, it argues, applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, which are not known to the invitee and would not, in the exercise of ordinary care be observed by him. The basis of the invitee's liability is his superior knowledge.

According to appellant plaintiff must allege prove, and submit that she did not know, and by using ordinary care, could not have known of the conditions causing her to slip and fall on its parking lot; therefore, (1) his motion to dismiss should have been sustained because respondent's second amended petition contained no such allegation, (2) his motion for judgment n.o.v. should have been sustained because (a) plaintiff failed to prove this element of her case, and (b) submitted the cause to the jury under a modified M.A.I. 22.04, which contains no required finding that she neither knew nor could have known of this condition.

When considering the question of the sufficiency of evidence to warrant submission of cause to jury, we must view the facts in a light most favorable to the plaintiff. Norwood v. Lazarus, 634 S.W.2d 584, 585 (Mo.App.1982).

Viewed in this light the evidence at trial was that respondent and her two young daughters went to appellant's restaurant in north St. Louis County on Sunday, January 16, 1977, at approximately 6:00 p.m., and drove into the parking lot of the restaurant which was furnished by appellant for its patrons. This restaurant is situated on the north side of Dunn Road, faces southwardly, and is surrounded on all four sides by the parking lot when this incident occurred. At the time respondent drove onto the parking lot there was packed down snow on most of the parking lot and this snow had tire tracks, ruts and ridges, and the parking lot was "dimly" lighted. One of defendant's witnesses, Jerry R. Eichholz, described it as "a matted, rough, rugged condition," "... it was settled snow--not snow-covered in a white, fluffy snow, but it was snow-packed where vehicles had gone over the area and the snow had been compacted and there were ridges and ruts." Some patches of ice were visible.

Harvey C. Harris, an assistant manager, at the restaurant, testified that he came to work at about 4:00 p.m. on January 16, 1977, that he walked on the parking lot, and the entire parking lot was "slippery" and packed with snow, and there were tire tracks, ruts and ridges from automobiles. The parking lot was in pretty bad condition.

After respondent drove onto the parking lot she parked the car she was driving "nose-in," in the first available space on the south-east corner of the parking lot, alighted from her car and started to proceed to the restaurant. Her two daughters had started for the restaurant and were ahead of her. As she started walking from the rear of her car toward the sidewalk to the restaurant she was walking very carefully, trying to pick her spots, stepping in areas where the snow wasn't packed and there were no ruts--"crunchy places where you were trying to get good leverage for your footage." While proceeding in this manner, and as she was looking forward and down, appellant stepped on a crunchy piece of snow or ice, her right foot went down, and there was ice underneath. Her right foot went out, and then her left foot, and she fell, landing on the flat of her back and tailbone. She could not tell what was under the crunchy ice or snow she stepped on, but it looked like what she stepped on would give her more leverage.

According to Mr. Harris, the assistant manager, appellant's supervisor instructed it's manager to call Henry Johnson, who was hired by appellant to remove snow from the parking lot, if it snowed an inch to an inch and a half to plow and salt the parking lot. He referred to a "record book" appellant kept and in which records for snow removal were kept. From this record Mr. Harris testified that the parking lot was plowed on January 10, 1977, but was not salted; on January 11th it was salted only. Again on January 15th the parking lot was both plowed and salted.

Henry Johnson, whose deposition was read in the defense's case, testified that since 1973 he'd been engaged in the business of snowplowing and salting and that he did some snow-plowing and salting of the parking lot of appellant's restaurant on Dunn Road but when the deposition was taken he did not have his records for the time of this occurrence, and was unable to recall what work, if any, he did at that time. According to Mr. Johnson he used only rock salt on the parking lot; he never used any sand or cinders.

According to weather records introduced at trial, precipitation, in snow or ice, for the first 16 days of January, 1977, reflected that the accumulation of snow and ice on the ground for the week preceding the accident varied from a minimum of 7 inches to a maximum of 10 inches. On January 15th there was 8 inches of snow on the ground, and on January 16th, 9 inches. There had been a snowfall of .06 of an inch on the 15th and none on the 16th. The temperature on the day of the occurrence reached a high of 0? F and a low of -14? F; at the time respondent fell at about 6:00 p.m. it was -10? >> F.

Appellant, and her daughter, Kelly LaRue, testified that the roads and streets were cleared.

Although there is authority requiring a plaintiff to allege and prove that she neither knew, or in the exercise of ordinary care could not have known of the alleged defective condition which caused her to fall and sustain injury, M.A.I. 22.03, there is also authority to the contrary when the injury occurs on a parking lot. Demko v. H. & H. Investment Company, 527 S.W.2d 382 (Mo.App.1975) and Carden v. Lester E. Cox Medical Center, 519 S.W.2d 338 (Mo.App.1975).

In Demko v. H. & H. Investment Company, supra this court said that in a parking lot case the liability, if any, is based on the merchant's duty to the invitee to provide a reasonably safe means of ingress and egress and that this duty "is a duty to exercise ordinary care to keep its premises reasonably safe and to warn of any danger which is actually or constructively known to it and which invitees would not discover." ¹ When there is ice on the restaurant parking lot the restaurant operator's affirmative duty is to make the parking lot safe or to warn the business invitee of the dangerous condition. The burden of proving that the business invitee knew or in the exercise of ordinary care should have known of the dangerous condition is on the restaurant operator, id. l.c. 385.

The holding in Demko is that in a parking lot case when the plaintiff alleges and proves that he was a business invitee who parked his car on a parking lot furnished by, and in connection with, a restauranteur's business, which parking lot is covered by snow or ice, and he alights from his car and in the course of walking from his parked car to the restaurant over the parking lot aforesaid, slips and falls on the icy or snow covered parking lot, he makes a submissible case against the restauranteur on the question whether the restauranteur has met his non-delegable duty to exercise ordinary care to keep the premises reasonably safe for the business invitee to enter and/or leave the restaurant. Once this is shown, the burden of proving that...