Weidenhaft v. Shoppers Fair of Des Moines, Inc.

• Decision Date: 11 March 1969
• Docket Number: No. 52962,52962
• Parties: Norma WEIDENHAFT and Dale Weidenhaft, Appellants, v. SHOPPERS FAIR OF DES MOINES, INC., Appellee.
• Court: Iowa Supreme Court

Page 756

165 N.W.2d 756

Norma WEIDENHAFT and Dale Weidenhaft, Appellants, v. SHOPPERS FAIR OF DES MOINES, INC., Appellee.

No. 52962.

Supreme Court of Iowa.

March 11, 1969.

Killmar & Reynoldson, Osceola, for appellants.

Clyde Putnam, Jr., Des Moines, for appellee.

STUART, Justice.

This is the latest in the long line of cases in which an invitee seeks to recover damages from the possessor of real estate for personal injuries sustained in a fall allegedly caused by a defective condition on the premises. The jury returned a verdict for defendant. Plaintiffs appealed from the judgment rendered thereon. Defendant seeks to uphold the trial court by claiming its motion for directed verdict should have been sustained. It may do so without appealing. Atherton v. Hoenig's Grocery, 249 Iowa 50, 52, 86 N.W.2d 252, 253. As we believe this proposition to be determinitive, we shall dispose of the appeal on this contention. Henceforth, we will refer to Mrs. Weidenhaft as if she were sole plaintiff.

In considering the propriety of a motion for directed verdict we view the evidence in the light most favorable to the party against whom the motion is made. R.C.P. 344(f), par. 2.

On January 16, 1965, plaintiff, Norma Weidenhaft, accompanied by her husband and two of her children, drove from their farm home near Osceola to Des Moines. At approximately 2:30 p.m., they arrived at Shoppers' Fair, parked in the north parking lot and entered the east entrance to the store where they intended to shop.

The parking lot was covered with packed snow as a result of 3.3 inches of snowfall January 14 and 15. There had been no precipitation Saturday, January 16. The weather was cold but there was heavy traffic in and about Shoppers' Fair.

Plaintiff and her family walked into the store through an outer door into an entrance way with corrugated rubber mats on the floor. The mats extended through an inner door into the store proper. The arrangement of Shoppers' Fair is typical for a self-service department store. There are many large signs suspended from the ceiling to direct the customers to the various departments within the store. Plaintiff testified: 'When I came in the door of the store and was coming in the entranceway I observed dirty water all around on the floor. I couldn't see on the other end of the mat, or wasn't paying attention to the far end of the mat at that time, but in that center piece and over around the sides of those, it was muddy water, a mess. It covered quite a space. It was all around in between those mats.'

On cross-examination plaintiff continued: 'As I got into the store there were rubber mats in the entranceway for both doors. I was not wearing galoshes. When I went into the store I went onto these rubber mats that were in the store. I stomped my feet on the rubber mat. I had walked quite a ways from the parked car to the store. There was some snow on the bottom of my shoes, but it was pounded down. There was enough traffic in the parking lot that the snow was mashed down. * *

'I didn't lift up my feet to look at my shoes after I stomped them. My shoes were sponge rubber soles. I didn't look at the bottom of them. It's possible that there still could have been snow on my feet after I stomped my feet. When I was on the mat stomping my feet I could see water on the floor between the mats off of the mat on the floor itself. I could see the water around there was dark. While I was on the mats I did observe the water on the floor in the area of the mat. There was nothing else on the floor that I observed except the water and some slush, that was all.'

Proceeding south on the mat toward the stocked area, plaintiff was looking to see where one daughter had gone and where she wanted to go when she stepped off the mat onto the asphalt tile floor and fell.

'I stepped off the mat with my right foot, because the left one is the one I fell on. I came down very hard. * * * There were no railings or anything that I could grab ahold of when I fell. I saw no signs in this area relative to the condition of the floors. * * * After the fall I observed mud and water, and some slush on the floor.'

On redirect examination, plaintiff stated she did not see any slush on the floor of the store before she fell.

The assistant manager of Shoppers' Fair at the time of plaintiff's fall, came to Mrs. Weidenhaft's aid while she was still in a sitting position where she fell. He stated it was the custom of the store to mop up the standing water which had resulted from customers tracking in snow every hour or two. There were no drains near the entrance to carry the water away. There was no evidence as to the last time prior to plaintiff's fall the entranceway had been mopped. He testified stock boys 'would do that on occasion without my having to call them. I didn't keep records on who it was, or the time that they came to do this. This was customary by reason of people tracking in snow and water. It was pretty warm in the store and if there was slush, and with that heater above there it wouldn't be alush very long. It would be water primarily. This was a dirty kind of appearing water from people's shoes.'

There was floor wax applied to the asphalt tile floor approximately three times a week. Plaintiff's husband and daughter testified the floor was 'slippery' in the area of the fall. An employee at defendant's courtesy counter on January 16, 1965, testified: 'To my knowledge, no one else fell in the area on that day before or after Mrs. Weidenhaft did during the period of time that I was handling the courtesy counter.'

We must keep in mind the ultimate question is whether defendant as possessor of the real estate exercised reasonable care to make the premises reasonably safe for plaintiff's entry or for her use for the purpose of the invitation. Chevraux v. Nahas, 260 Iowa 817, 150 N.W.2d 78, 80; Meader v Paetz Grocery Co., Inc., 259 Iowa 1101, 1103--1104, 147 N.W.2d 211, 214; Hanson v. Town and Country Shopping Center, Inc., 259 Iowa 542, 544, 547, 144 N.W.2d 870, 872, 874. In an effort to more explicitly define defendant's duty we have, since Hanson v. Town and Country Shopping Center, Inc., 259 Iowa 542, 144 N.W.2d 870, consistently relied on sections 343 and 343A, Restatement (Second), Torts, as we interpret them.

'(W)e must determine whether under all the facts and circumstances there is sufficient evidence defendant, in the exercise of reasonable care to make the premises reasonably safe for plaintiff-invitee, should have expected that despite the obviousness of the condition of the strip involved, plaintiff would not realize the hazard and would fail to protect herself against it.

'While ordinarily a possessor of real estate would not be liable (or would not reasonabl anticipate an unreasonable risk of harm to an invitee from an open or obvious defect), negligence may exist even though a defect is, in fact, open and obvious where the circumstances are such that there is reason to believe it would not be discovered or become obvious to the invitee or the risk of harm involved would not be anticipated or appreciated by the invitee. In such circumstances there may be generated a jury question as to whether the premises are reasonably safe.' 259 Iowa at 549, 144 N.W.2d at 875.

Subsequent cases have restated this principle in various ways. The only amplication has been to make clear the possessor, in judging whether the invitee would realize the hazard and fail to protect herself against it or would not appreciate the risk of harm, is entitled to assume the invitee will exercise the care of an ordinary reasonable prudent person. Chevraux v. Nahas, 260 Iowa 817, 150 N.W.2d 78, 81--82; Meader v. Paetz Grocery Co., Inc., 259 Iowa 1101, 1106, 147 N.W.2d 211, 215--216.

In many recent cases we have attempted to draw the illusive line between facts and circumstances which create a jury question and those which do not, under the principles of law stated above. Ling v. Hosts Incorporated, Iowa, 164 N.W.2d 123; Adams v. R. S. Bacon Veneer Co., Iowa, 162 N.W.2d 470, 472--473; Bradt v. Grell Construction, Inc., Iowa, 161 N.W.2d 336, 347; Knudsen v. Merle Hay Plaza, Inc., Iowa, 160 N.W.2d 279, 282; Chevraux v. Nahas, 260 Iowa 817, 150 N.W.2d 78, 81; Smith v. J. C. Penney Company, 260 Iowa 573, 149 N.W.2d 794, 801--802; Meader v. Paetz Grocery Co., Inc., 259 Iowa 1101, 147 N.W.2d 211; Hanson v. Town and Country Shopping Center, Inc., 259 Iowa 542, 144 N.W.2d 870.

The cases require the possessor of the real estate to have actual or constructive knowledge either of the defective condition or the hazard created by an obvious condition. Ling v. Hosts Incorporated, Iowa, 164 N.W.2d 123, filed January 14, 1969; Bartels v. Cair-Dem, Incorporated, 255 Iowa 834, 840--841; 124 N.W.2d 514, 518. Where, as here, plaintiff has actual knowledge of the condition, the possessor would be liable if he as a reasonable prudent person knows or should know the condition dreates an unreasonable risk of harm which the invitee using the care of a reasonable prudent person would fail to appreciate or guard against.

The question is then, was there an unreasonable risk of harm created by the tracked-in snow which the possessor should have anticipated the invitee would fail to appreciate and guard against. The record is silent on any risk beyond that created by an asphalt tile floor made wet, dirty and slippery by tracked-in snow and water. There is no evidence of an unusual accumulation of water, mud and slush. There is no evidence this floor became more slippery when wet than the normal floor. From all that appears in the record, the invitee should have been as aware of the risk created by the wet floor as the possessor of the real estate. The invitee was faced with a situation which a reasonable prudent person would expect to encounter when embarking on a shopping journey under existing weather conditions. The possessor of real estate would be entitled to...