Wiedmeyer v. Equitable Life Assur. Soc.

• Citation: 644 N.W.2d 31
• Decision Date: 08 May 2002
• Docket Number: No. 00-0957.,00-0957.
• Parties: Marcia WIEDMEYER, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A New York Corporation, Appellee.
• Court: Iowa Supreme Court

644 N.W.2d 31

Marcia WIEDMEYER, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A New York Corporation, Appellee.

No. 00-0957.

Supreme Court of Iowa.

May 8, 2002.

Patrick L. Woodward of McDonald, Stonebraker & Cepican, P.C., Davenport, and George B. Norman, Davenport, for appellant.

Peter J. Thill of Betty, Neuman & McMahon, L.L.P., Davenport, for appellee.

CARTER, Justice.

Plaintiff, Marcia Wiedmeyer, appeals from an adverse summary judgment in a slip-and-fall damage action against the Equitable Life Assurance Society of the United States (Equitable), the owner of Duck Creek Plaza, a shopping mall in Bettendorf. Plaintiff alleged Equitable failed to maintain the parking lot of its shopping center in a safe manner and that, as a result, she fell and sustained serious injuries. Equitable asserted, among other defenses, that it was not the possessor of the real estate as the result of a management agreement that it had entered into with General Growth Management Company (General Growth).

The district court sustained Equitable's motion for summary judgment on the basis that General Growth rather than Equitable was the possessor of the property where plaintiff sustained her injury. After reviewing the record and considering the arguments presented, we reverse that decision and remand the case to the district court for further proceedings.

Plaintiff has alleged that she visited Duck Creek Plaza December 7, 1996, for the purpose of shopping in certain of the stores located there. She parked her vehicle in a parking area provided for Duck Creek Plaza customers. While traversing the parking lot, she alleges that she slipped and fell on a patch of ice, fracturing her ankle. She contends that her fall was the result of an unsafe condition of the property, which she asserts was possessed by Equitable.

Equitable owned Duck Creek Plaza on the date of plaintiff's injury. It had, however, entered into a real estate management agreement with General Growth, which appointed the latter as the exclusive managing and renting agent for the mall. Among the matters that General Growth agreed to perform on behalf of Equitable was to "arrange for cleaning and snow removal for the parking areas and roadways of the premises." Specific provisions of the management agreement that relate to this controversy will be discussed in connection with our consideration of the legal issues presented.

I. Standard of Review.

The ruling of the district court was based on its conclusion that Equitable owed no legal duty to the plaintiff because it was not the possessor of the real estate. The standard of review when the issue is whether a legal duty exists is correction of errors at law. Iowa R.App. P. 6.4; Allison by Fox v. Page, 545 N.W.2d 281, 282 (Iowa 1996). It is well established that in assessing whether summary judgment is appropriate the court views the entire record in the light most favorable to the nonmoving party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

II. Whether Equitable Was the Possessor of Duck Creek Plaza so as to Make it Responsible for the Duties Recognized in Section 343 of the Restatement (Second) of Torts (1965).

The determinative issue on appeal is whether Equitable was the possessor of Duck Creek Plaza so as to be subject to the duties recognized in section 343 of Restatement (Second) of Torts (1965). That section of the Restatement provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The status of a "possessor of land" turns on occupation and control of the land, not mere ownership. Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999). We have adopted the definition of "possessor" contained in section 328E of Restatement (Second) of Torts. Id. at 719. This section of the Restatement provides:

A possessor of land is

(a) a person who is in occupation of the land with intent to control it, or

(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under clauses (a) and (b).

Restatement (Second) of Torts § 328E.

We have recognized that the owner of land may in some situations loan its possession to another, thus rendering that party the possessor and negating the owner's status as such. Galloway v. Bankers Trust Co., 420 N.W.2d 437, 441 (Iowa 1988). Equitable urges that it loaned possession of the Duck Creek Plaza to General Growth and thus was not itself a possessor at the time of plaintiff's injury. Plaintiff asserts that one who exercises control over land through an agency agreement with a contract manager is a possessor for purposes of the liability recognized in section 343 of the Restatement.

Equitable argues that in the present case the specific law of absentee owner immunity takes precedence over general principles of agency law. It urges that, although generally a principal may be liable for the acts or omissions of its agent, in no circumstance does premises liability exist unless the defendant occupies the status of a possessor of the land. Section 422 of the Restatement provides that

[a] possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of the land during the progress of the work, or

(b) after he has resumed possession of the land upon its completion.

(Emphasis added.) We relied upon this section of the Restatement in Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 703-04 (Iowa 1995), to visit premises liability on a retail store that entrusted snow removal to an independent...