Watts v. Holmes
| Citation | 386 P.2d 718 |
| Decision Date | 22 November 1963 |
| Docket Number | No. 3179,3179 |
| Parties | Patricia WATTS, Appellant (Plaintiff below), v. Harold HOLMES, d/b/a Holmes Auction. Appliance, and Furniture Company, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Henderson, Godfrey & Kline, Harry B. Henderson and David D. Uchner, Cheyenne, for appellant.
Williams, Wunnicke & Fennell and Mrs. Brooke Wunnicke, Cheyenne, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
The plaintiff, Patricia Watts, has sought to recover damages from Holmes Auction, Appliance and Furniture Company, for personal injuries suffered when plaintiff slipped on ice in the automobile-parking area maintained by defendant for its customers.
The case was tried to a jury, and at the close of plaintiff's evidence a verdict was directed for defendant. Mrs. Watts claims, on appeal to our court, that the jury should have been permitted to decide the issues in the case. Thus, there is presented for our consideration the question as to whether plaintiff made a prima facie case of negligence against Holmes.
The only claim of negligence asserted by plaintiff in her complaint was that defendant 'had negligently and unlawfully allowed an accumulation of clear ice to accumulate in front of its place of business and in the area where Defendant invited business invitees to park their automobiles.' The record discloses no pretrial conference and nothing of any nature which could be construed as a settlement of or assertion of any further issue on the part of plaintiff.
We therefore confine ourselves to the issue presented and look to see whether any substantial evidence was offered to prove the charge alleged. First, with respect to the unlawful accumulation of ice, the record discloses no ordinance which was violated, and no applicable statute is called to our attention. In short, it is fair to say that no attempt was made to prove defendant had unlawfully allowed ice to accumulate in its parking area.
We turn then next to the evidence to see whether there was proof that defendant had negligently allowed clear ice to accumulate in its parking area. According to plaintiff and her witnesses there was no snow and there had been no recent snow. Also, plaintiff said there was no moisture at the time of accident. The surfacing of the parking area was described by all witnesses as consisting of sand, dirt, gravel and rock.
There is a total absence of evidence tending to show that defendant created a situation which caused ice to accumulate. The only possible conclusion which can be drawn from the evidence is that ice accumulated as a result of natural weather conditions, or in other words as an act of God and in the same manner in which it would accumulate elsewhere.
Also, there is no allegation that defendant negligently permitted the ice to remain on its property, and the evidence does not establish its presence until a matter of minutes before the plaintiff's fall.
As far as our court is concerned, it is sufficiently settled that a storekeeper is not an insurer of the safety of a customer shopping at his store. Dudley v. Montgomery Ward & Co., 64 Wyo. 357, 192 P.2d 617, 622.
If defendant was not an insurer of plaintiff's safety and if the ice in question accumulated by an act of God and not by anything which defendant did or left undone, then the proposition upon which plaintiff actually went to trial was in reality that Holmes negligently allowed the act of God to happen.
If indeed plaintiff intended to assert a different claim against the store owner, we have no way of knowing what it was. Pleading under our rules of civil procedure has sometimes been called 'notice pleading,' but a more appropriate label would probably be 'modern pleading' or 'simplified pleading.' 1A Barron and Holtzoff, Federal Practice and Procedure, § 251, pp. 30-31 (1960).
Irrespective of any views that may be taken for procedural reform, however, a...
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