Vinyard v. Vinyard Funeral Home, Inc.

• Decision Date: 19 November 1968
• Docket Number: No. 32971,32971
• Parties: Elizabeth Ann VINYARD, Plaintiff-Respondent, v. VINYARD FUNERAL HOME, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 392

435 S.W.2d 392

Elizabeth Ann VINYARD, Plaintiff-Respondent, v. VINYARD FUNERAL HOME, INC., Defendant-Appellant.

No. 32971.

St. Louis Court of Appeals, Missouri.

Nov. 19, 1968.

As Modified Dec. 18, 1968.

Motion for Rehearing or for Transfer to the Supreme Court

Denied Dec. 18,

1968.

Dearing, Richeson, Weier, Roberts & Wegmann, J. Richard Roberts, Hillsboro, for defendant-appellant.

Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for plaintiff-respondent.

CLEMENS, Commissioner.

Plaintiff got a verdict and $13,000 judgment for injuries from a fall on defendant's parking lot. (Plaintiff was the daughter-in-law of the corporate defendant's president.) Defendant appeals, challenging the sufficiency of plaintiff's evidence, the form of her verdict-directing instruction, and the admission of evidence about other patrons slipping on the parking lot.

Defendant contends the evidence failed to show that its premises were unsafe and, even so, that the condition was undiscoverable by plaintiff. We recite the verdict-consistent evidence.

In short, one rainy night plaintiff slipped and fell when she stepped from a roughly paved surface onto a smoothly paved surface of a ramp in defendant's dimly lighted parking lot. The defendant knew the smoothly paved area was slippery when wet. In more detail we recite the evidence about the parking lot, the paving, plaintiff's fall, and defendant's knowledge of danger.

The plaintiff fell after she had parked her car and was walking up a ramp toward the defendant's funeral home. Its parking lot is flanked by the president's residence on the south and by the funeral home on the north. The ground slopes upward from south to north, toward the funeral home. The parking lot is on two levels, connected by paved ramps at the front and the rear. The lower level adjoins the residence and the upper level adjoins the funeral home. Photographs indicate the ramps are about 30 feet wide and 30 feet long. Expert testimony showed the west ramp's grade was 14 percent, i.e., a rise of 1.4 feet for each 10 feet of length. This would indicate there was a rise of 4.2 feet from the lower to the upper level.

The parking lot was laid out in May, 1961, about eighteen months before plaintiff's fall. It was paved with asphalt, making a rough surface. In September, 1961--fourteen months before plaintiff's fall--the defendant spread a clear liquid sealer on the upper level of te parking lot. This sealed area extended half way down the ramps; it was smoother than the unsealed area and slick when wet. Thus a person walking up the ramp would start out on a rough surface and cross over onto a smooth surface. Daylight photographs show the two surfaces differ only slightly in color.

Before her fall plaintiff was unaware of any difference in the two surfaces. She had used the parking lot before but only when visiting her in-laws' residence south of the parking lot. Thus, she had used only the roughly surfaced lower level of the lot. On the night of November 11, 1962, plaintiff intended to go to the funeral home to visit the family of a deceased friend. It had been and was drizzling rain. The parking lot was lighted, but dimply, by a single, shaded light bulb atop a post fifteen feet from where plaintiff fell. The shade over the bulb directed the light downward. Plaintiff parked her car on the lower level, near the west ramp, intending to walk up the ramp to the upper level and then into the funeral home. This was a customary route for patrons. Plaintiff got out out of her car, walked around its rear, and started up the ramp. All this was on the rough, unsealed surface. Plaintiff said: 'It was dimly lit, it wasn't bright, but I could tell there was pavement there and I could see where I was going, but I couldn't tell the difference in the pavement.' She suddenly 'hit this slick place and it was slick as glass, and when I fell, I fell very quickly.' This was plaintiff's first step onto the slick, sealed surface, half way up the ramp.

Defendant's prior knowledge that the sealed surface was dangerously slick when wet was shown in three ways: observations by defendant's officers and employees, remedial actions taken by them, and notice received through other patrons' complaints of slickness.

As soon as the clear sealer was applied on the lot's upper level, the defendant's officers and employees noticed the surface was slick when it rained. They discussed the condition numerous times; they spoke to paving contractors about 'roughing it up' but did nothing except spread sand on the smooth paving when it rained. (This, however, was not done on the night plaintiff fell.) This sanding followed complaints by patrons about the slickness. These complaints began right after the sealer was applied and came from several persons.

Without objection, plaintiff showed that three years after her fall the defendant resealed the upper level with the same liquid compound. But this time the defendant mixed the liquid sealer with an equal amount of sand. This mixing followed the manufacturer's recommendation for use where the user wants a 'non-slip protective surface.'

The defendant contends the trial court should have directed a defendant's verdict since the evidence of the condition of its parking lot did not show an unreasonable risk of injury to visitors and that the condition was not discoverable by visitors. The two elements of liability--dangerous condition and non-discoverability--are interlaced, since a reasonably discoverable danger does not create an unreasonable risk. (See Albers v. Gehlert, Mo., 409 S.W.2d 682(3), citing the rationale in 2 Restatement of Torts, 2d, p. 219.)

The determinative, interrelated factors of unreasonable risk here are (1) a slope of 14 percent, (2) a surface that became slick when wet, (3) a change of texture of the surface from rough to smooth, and (4) dim lighting near the point of fall.

We need not analyze and compare all the cases briefed. The parties' contentions are adequately presented by two cases decided at the same term by the Supreme Court. Defendant relies on Schmoll v. National Shirt Shops, 354 Mo. 1164, 193 S.W.2d 605(1--7), and plaintiff on Corley v. Kroger Grocery & Baking Co., 355 Mo. 4, 193 S.W.2d 897(2--5).

In attacking the sufficiency of plaintiff's evidence, defendant says the National Shirt Shop case is 'very close to the case at bar.' There the plaintiff entered the defendant's store on a rainy day, walking through a slightly inclined entrance lobby. On other rainy days the defendant had spread a rubber mat in the entrance way. The wet flooring was terrazzo and embedded in it were polished brass letters spelling out the defendant's name, each letter about four by six inches. All this was seen by the plaintiff. She stepped on the wet, brass letter 'A', slipped and fell. The court said that 'Plaintiff had as much knowledge of the condition of the brass lettering as had defendant' and reversed plaintiff's judgment, holding: 'There is no liability of defendant for injuries from dangers that are obvious, or as well known to plaintiff as to defendant.' Later, in the case of Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617(2), the Supreme Court explained its ruling in the National Shirt Shop case: 'The principal basis of that decision was that this lettering was obvious, 'was seen by plaintiff; and by her seen to be wet'; and that 'plaintiff had as much knowledge of the condition of the brass lettering as had defendant.''

Ours is more akin to the Kroger case (193 S.W.2 897). There customers entered defendant's store over a metal strip across the floor at the doorway. The strip had been grooved to afford good traction but had worn smooth. On the day of plaintiff's fall, a film of snow covered the metal strip. This court reversed the plaintiff's judgment, but on transfer the Supreme Court affirmed, saying: 'We think the majority of the Court of Appeals inadvertently overlooked testimony to the effect that the smoothness of the metal strip was hidden from view at the time by a film of snow. * * * The snow was obvious but the smoothness underneath was hidden by the snow. It was the combination of the snow and the smoothness of and moisture on the metal strip that occasioned plaintiff's injuries.'

We hold, contrary to defendant's contention, that plaintiff's evidence did show an unreasonably dangerous condition: We first have the combination of the 14 percent grade and the slick, wet surface; from this the jury could find that the defendant maintained a dangerous condition in its parking lot. We also have a change from rough to smooth paving, combined with dim lighting that made that change difficult to detect; from this the jury could find that plaintiff did not know, and by using ordinary care could not have known, of the dangerous condition. Certainly, with this evidence reasonable minds could differ about whether there was an unreasonable risk of injury. So, the issue was for the jury, not for us. We deny defendant's first point. (Tharp v. Monsees, Mo., 327 S.W.2d 889(7, 8).)

Defendant's Point II is a three-pronged attack against plaintiff's verdict director, a modified MAI 22.03, Invitee Injured. As urged by plaintiff, we will consider defendant's point only to the extent that it was specified in defendant's motion for new trial and carried forward into its brief here. (Lands v. Boyster, Mo., 417 S.W.2d 942(3); Richardson v. Cope, Mo., 370 S.W.2d 318(2).) The point raised below is unlike the point made here. Plaintiff's verdict director was based on MAI 22.03 but she necessarily modified paragraphs 'First' and 'Fourth'. It read:

'Instruction No. 3'

'Your verdict must be for the plaintiff if you believe: First, plaintiff fell in defendant's driveway on a wet slope which was covered with an asphalt sealer which caused it to be slick when wet and as a result when it was wet said place was not reasonably safe for visitors, and

'Second, plain...