Warner v. Hansen

• Decision Date: 05 April 1960
• Docket Number: No. 49934,49934
• Citation: 102 N.W.2d 140,251 Iowa 685
• Parties: Wilma WARNER, Appellant, v. Leonard V. HANSEN, d/b/a Western Auto Associate Store, Appellee.
• Court: Iowa Supreme Court

Page 140

102 N.W.2d 140

251 Iowa 685

Wilma WARNER, Appellant, v. Leonard V. HANSEN, d/b/a Western Auto Associate Store, Appellee.

No. 49934.

Supreme Court of Iowa.

April 5, 1960.

C. T. Cline and Hildreth & Ford, Burlington, for appellant.

Pryor, Hale, Plock, Riley & Jones, Burlington, and McDonald & McCracken, Davenport, for appellee.

THOMPSON Justice.

The plaintiff, a woman 46 years of age, in good health and with good eyesight, entered defendant's store in Burlington on December 29, 1956, for the purpose of buying a toy. She had been for 11 years an instructor in Western Illinois University, at Macomb, Illinois. She had never been in this store before. At the time she was wearing shoes with medium height heels and a rather broad base. It was stipulated that she was at all material times an invitee in the store.

Plaintiff suffered a fall shortly after entering the store, through failure to see a step-off from a landing at the bottom of the stairway leading from the first floor to the basement. She mistook the landing for the basement floor proper, and fell from it to the floor, with consequent injuries. At the close of her evidence, the trial court granted defendant's motion for a directed verdict upon six grounds, all of which were based upon the holding that there was no sufficient showing of negligence of the defendant to engender a jury question. So upon this appeal we must give plaintiff's evidence the most favorable construction it will reasonably bear, and must consider that defendant's motion for a peremptory verdict is in the nature of a demurrer to evidence and admits its truth.

Plaintiff admits the premises were adequately lighted. Her specifications of negligence against the defendant are these; (a), a change in floor level where it would not be expected; (b), a change in floor level not visible from a safe distance away; (c), displaying merchandise on a landing so that an invitee would think it was a part of the main floor; (d), displaying merchandise under such conditions as to distract the attention of an invitee from the change in floor level; (e), failing to provide a handrail for the change in floor level or step; (f), failing to warn plaintiff of the dangerous condition existing in the basement shopping area. The trial court, by granting the motion for directed verdict, held that none of these specifications had been proven.

Some additional statement of facts is required. When plaintiff entered the store she inquired of a clerk on the first floor and was told the particular toy she was seeking would be found in the basement. It is plaintiff's testimony that the employee also told her 'she could proceed down the basement stairs since there was a handrail on the stairway.' She accordingly went to the stairway and down it. As she reached the head of the stairs she noticed signs which read 'Watch Your Step'.

The stairway sloped from south to north, so that as plaintiff went down it she was going in a northerly direction. There were handrails on each side, which she noticed ended two steps before the bottom of the stairs was reached. She kept to the right, or east, side of the stairs, holding to the right handrail, as she went down. She held to this rail until she had reached the bottom of the stairway, apparently reaching back with her right hand as she crossed the two bottom steps.

At this point plaintiff believed she had reached the bottom of the stairway and the main basement floor. In fact, however, she was on a landing, the size of which is not directly given us, but which appears from photographs in evidence to have been perhaps five or six feet square. At any rate it was not large. On the west side of the landing was a wall. On the north, directly in front of plaintiff as she came down the stairs, there was merchandise in the form of toys stacked on the landing and taking up a considerable part of its north area. Back of these toys was the north wall of the building.

It is evident that with a wall at her left, toys and another wall in front of her, and the stairway down which she had just descended behind her, plaintiff could move only to her right. She testified that she could not see to her right until she reached the bottom of the stairs, which were enclosed. Shelves extended across the north wall of the basement, including that portion as the back of the landing. These shelves were horizontal all the way across; that is to say, there was no break in them at the back of the landing. They contained merchandise in the form of toys. On the landing was a 'nest' of toy wagons, and on the basement floor immediately adjoining, to the east, was another 'nest' of wagons. The height of the two stacks of wagons was substantially the same, because the pile on the basement floor contained more wagons than the stack on the landing, so there was no impression that one was lower than the other.

As Miss Warner reached what she thought was the bottom of the stairway, she was looking at the merchandise displayed before her on the shelves and floor at the back of the landing, and on the shelves along the north wall to the east. She testified that the covering on the landing and on the main floor of the basement was substantially the same color or 'value'. As she came to what she thought was the end of the stairway she had been looking down to see what was in front of her; but when she reached the landing she watched the merchandise displayed before her, moved to her right and fell from a further step or change in floor level to the basement floor. This was one step, about one to two feet east of the spot where plaintiff reached the landing at the foot of the main stairway. She says she 'Just stepped off into space.' The step-off was seven to eight inches.

I. An owner of real estate is liable to invitees for injuries from dangers that are not known to the invitee and would not be observed by him in the exercise of ordinary care. Anderson v. Younker Brothers, Inc., 249 Iowa 923, 927, 89 N.W.2d 858; Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, 254. The basic rules are discussed and applied in these cases and in others cited therein. It is the defendant's contention here that he was not negligent because the change in floor level was visible to plaintiff if she had exercised ordinary care in looking. Steps and changes in floor levels are so common in buildings, he argues, that an invitee must be on the alert for them; he cannot walk along indifferent to what lies before his feet and then be heard to complain if some change in level causes a fall and consequent injury.

Undoubtedly this is the general rule. But the plaintiff says that she was told there was a railing on the stairway, which led her to believe the stairs ended with the railing, or at least that there were no additional steps around the corner; and that she was distracted by the merchandise on display before her as she descended the stairs and reached the landing. The question is not free from difficulty. But we must remember that we are not here determining whether or not the defendant was guilty of negligence. Our problem is only to say whether, giving plaintiff's evidence its most favorable aspect and taking its truth as admitted by the motion to direct, reasonable minds might say the defendant was negligent. If reasonable minds might differ, there is a jury question. We have reached the conclusion the jury should have been permitted to decide.

II. Authorities on the question of distraction by display of merchandise are lacking in Iowa. There are, however, cases in other jurisdictions which have dealt with the question, and each party here cites such authorities. They are persuasive in proportion as they appear to be well reasoned and logical, but of course are not binding upon us.

Generally, the presence of different floor levels, connected by one or more steps, does not constitute such a dangerous condition as to make the building owner or occupant liable to an invitee. But there may be exceptional circumstances or conditions relating to the character or location of the step or steps which will avoid the general rule, if they are such that the average prudent person might not see the drop-off. The defendant here of course knew of the condition of the stairway, the landing, and the step-off a few feet to the right of the last step of the stair proper. He knew of the displays of merchandise on the landing and along the north wall to the east. The plaintiff did not know of the change in floor level to her right as she reached the bottom of the stairs, or that the landing was not in fact a part of the main floor; that is, that it was not on the same level. The difficult question is whether the situation should have been apparent to her in the exercise of ordinary care. If so, there was no negligence of the defendant in so maintaining its premises or failing to warn her. 38 Am.Jur. Negligence, section 97, pages 757, 758; Atherton v. Hoenig's Grocery, supra.

But we think the governing rule here is that expressed by the Maryland Court of Appeals in Chalmers v. Great Atlantic & Pacific Tea Company, 172 Md. 552, 192 A. 419, 422: 'The storekeeper expects and intends that his customers shall look not at the floor but at the goods which he displays to attact their attention and which he hopes they will buy. He at least ought not to complain, if they look at the goods displayed instead of at the floor to discover possible pitfalls, obstructions, or other dangers * * *'. It is true, as defendant urges, that this case involved an obstruction arising from leaving a carton of canned goods in an aisle. The same factual situation obtained in Brown v. Slack, 159 Neb. 142, 65 N.W.2d 382, 386 where the Nebraska Supreme Court quoted with approval from Glenn v. W. T. Grant Co., 129 Neb. 173, 260 N.W. 811, 812: 'Under such surroundings, reason suggests that the proprietor's invitee might not be required to exercise the...