Vollmar v. J. C. Penney Co.

• Decision Date: 14 June 1960
• Docket Number: No. 49969,49969
• Citation: 103 N.W.2d 715,251 Iowa 1026
• Parties: Hannah VOLLMAR, Appellee, v. J. C. PENNEY COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 715

103 N.W.2d 715

251 Iowa 1026

Hannah VOLLMAR, Appellee, v. J. C. PENNEY COMPANY, Appellant.

No. 49969.

Supreme Court of Iowa.

June 14, 1960.

Harper, Gleysteen & Nelson, Sioux City, for appellant.

Burton Dull, Le Mars, Marvin J. Klass, Sioux City, for appellee.

HAYS, Justice.

Law action for injuries plaintiff sustained in a fall while in defendant's place of business. The petition alleges she was in the store to make some purchases. As she was returning to the main floor from the balcony by way of series of steps and was on the second from the last step from the main floor, the heel on her right shoe caught against the molding on the step causing her to suddenly twist and fall forward, resulting in the injuries complained of. It alleges that the defendant was negligent (a) In failing to keep said molding tightly fastened to the step; (b) In maintaining steps with molding which protruded over the level of the step to such an extent that it created a hazard to people using the same; and, by a later amendment, (c) In that the molding was permitted to become loose and that the defendant knew or in the exercise of reasonable care should have known of the condition. The jury returned a verdict for the plaintiff and the defendant appeals.

Defendant assigns two errors. I, In overruling its motion for a direct verdict at the close of plaintiff's testimony and at the close of all of the testimony; II, In overruling its motion for a judgment notwithstanding the verdict or for a new trial. It is in effect conceded by the defendant that plaintiff has the status of an Invitee; that she fell on a stairstep while in the store; and, that she was injured thereby. The crux of the appeal rests upon two propositions; Sufficiency of the evidence as to existence of a hidden defect, and, of the evidence relative to knowledge of the defendant as to the existence of the same.

I, The duty and responsibility of an owner of a place of business, in regard to the condition thereof as it pertains to Invitees, has been before this court many times and the law is well settled in regard thereto. In Chenoweth v. Flynn, 251 Iowa ----, 99 N.W.2d 310, it is said: 'The possessor of real estate is not an insurer of invitees who come upon his premises, nor does the mere fact an accident happened, of itself, create liability. His duty is that of reasonable care to keep the property in a reasonably safe condition for the contemplated use. * * * This duty applies only to defects or conditions which are in the nature of dangers, traps, snares, pitfalls, and the like, which are not obvious or known to the invitee but which are, or in the exercise of due care should be known to the possessor. It is predicated upon a superior knowledge.' See, also, Warner v. Hansen, 251 Iowa ----, 102 N.W.2d 140; Anderson v. Younker Brothers, Inc., 249 Iowa 923, 89 N.W.2d 858; Atherton v. Hoenig's Market, 249 Iowa 50, 86 N.W.2d 252; 65 C.J.S. Negligence §§ 45b and 50; 38 Am.Jur. Negligence, section 131. Thus plaintiff assumes the burden of proof as to the existence of the hidden defect, and knowledge upon the part of the defendant. The answer of the defendant denies that a hidden defect or an unsafe condition of the premises existed.

II, As to the first proposition, i. e., existence of a hidden danger or defect such as to make the premises unsafe. In an examination of the record upon this point, as well as upon the second proposition, it must be viewed in its most favorable light to the plaintiff. Holmes v. Gross, 250 Iowa 238, 93 N.W.2d 714, and cases therein cited.

Defendant J. C. Penney Company owns and operates a store in Le Mars, Iowa. It consists of a main floor and a balcony on which is located the business office and a ladies ready to wear department. To reach the balcony from the main floor, there are three steps leading to a landing and then another series of steps to the balcony. It is equipped with a handrail. It is the steps from the main floor to the landing that are here involved. These steps were built in 1951. They are covered with linoleum and along the outside edge of the step is a metal molding which curves around the edge of the step and butts up to the linoleum. It is held in place with screws placed at regular intervals along the molding. Plaintiff, a lady 70 years of age, testified that she was a frequent visitor at the store; that she used these steps many times; that at the time in question she was watching the steps, as she descended from the balcony, and that they appeared to be alright. She had never observed and thing wrong with them. She simply states 'I caught my right heel on the molding of that step, and I twisted, turned my ankle and fell.'

Plaintiff's son, a business man in Le Mars, is the only witness for plaintiff who testified to the condition of the steps. Shortly after his mother sustained her fall, he went to the Penney store to find out what happened. He said he observed the steps, particularly the second one which his mother said was the one she fell upon. He observed them from different angles and could not see any irregularity, nor did he find one when he walked upon them. When he got down and examined them with his hands, he observed that the molding upon the second step, for a distance of four inches from the outside handrail, was raised toward the end of the step. There was a screw, holding the molding, about five inches from the west...