Willis v. Springfield General Osteopathic Hosp.

• Decision Date: 20 February 1991
• Docket Number: No. 16596,16596
• Citation: 804 S.W.2d 416
• Parties: Shirley A. WILLIS and Toby G. Willis, Plaintiffs-Appellants, v. SPRINGFIELD GENERAL OSTEOPATHIC HOSPITAL d/b/a Springfield General Hospital, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 416

804 S.W.2d 416

Shirley A. WILLIS and Toby G. Willis, Plaintiffs-Appellants, v. SPRINGFIELD GENERAL OSTEOPATHIC HOSPITAL d/b/a Springfield General Hospital, Defendant-Respondent.

No. 16596.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 20, 1991.

Richard H. Stevens, Stevens & Nolan, and William C. Prince, Springfield, for plaintiffs-appellants.

Kent O. Hyde, William C. Love, Harrison, Tucker & Hyde, Springfield, for defendant-respondent.

PARRISH, Presiding Judge.

Plaintiffs Shirley A. Willis and Toby G. Willis assert separate claims by this action. Shirley seeks recovery for personal injuries she sustained in a fall on defendant's ice-covered parking lot (Count I). Toby (Shirley's husband) seeks recovery for loss of consortium occasioned by reason of Shirley's fall (Count II). Plaintiffs allege that Shirley's fall and resulting injuries occurred because defendant was negligent by failing to remove ice from its parking lot, failing to barricade the area on the parking lot that was slick due to icy conditions, or failing to apply an appropriate substance to the surface of the parking lot to improve traction. A jury returned verdicts assessing no fault to defendant. Judgment was entered in favor of defendant in accordance with the verdicts. Plaintiffs appeal. This court affirms.

Plaintiff Shirley Willis spent the evening of January 22, 1984, and the early morning of January 23, 1984, at Springfield General Hospital, a facility operated by defendant. Shirley went there to visit her grandfather who was a patient at that hospital. She went to the hospital knowing that it might be necessary that she spend the night. Her grandfather was difficult to control. Shirley testified, "He was belligerent, and they couldn't do anything with him, he was hard to control, out of his head, so forth." She spent most of the evening in a waiting area near an intensive care unit where her grandfather was a patient. During the early morning on January 23, Shirley went into the intensive care area to assist with the care of her grandfather. Someone from the nursing staff suggested that her presence might be of assistance in maintaining control over her grandfather.

At the time Shirley arrived at the hospital on the afternoon of January 22, no precipitation had fallen. There was no snow or ice on the ground. She described the weather at that time as "[j]ust a cold winter day." Throughout the evening of January 22 and during the early morning hours of January 23, there was freezing rain. Shirley knew it was slick outside. She had overheard some of the nursing staff and other personnel talking about the slick conditions.

Sometime between 7:15 and 8:00 a.m. the morning of January 23, Shirley left the intensive care unit to go home. It was light outside by the time she left the hospital. Shirley left the hospital building and proceeded across the parking lot to her car. Her car was "45, 50, steps" away from the building. Knowing that the parking lot was slick, she crossed the lot "[g]ingerly, very carefully." She approached her car, unlocked the door, reached into the car and got her ice scraper. Shirley then went to the back window of the car to scrape ice from it. She gave the following account of her actions:

Q. Did you begin scraping it or--

A. I can't recall, I think I had just started to scrape it, sir.

Q. You just started to scrape it and what?

A. And I fell, my feet slipped out from under me.

Q. Both your feet slipped out from under you?

A. I think so.

Q. Was there anybody else standing near you?

A. No, sir.

Q. Was there any other object that was in your way?

A. No, sir.

Q. Had you reached up to scrape yet?

A. I think I was just getting ready to, sir.

Q. Your feet went out from under you?

A. Yes, sir.

Q. And you fell, on what part of your body did you fall?

A. My buttocks.

Q. Did you get your hands down or any other part of your body down?

A. I can't remember, I think I just hit my buttocks.

After she fell, Shirley felt pain in her lower back. She then got into her car and went home. She arrived home about 9:00 or 9:15 a.m. She took a bath and went to bed. She continued experiencing pain but fell asleep. She awoke about 1:30 or 2:00 p.m. On the next day, January 24, Shirley went to work but had to return home because of her discomfort. On the following day, January 25, Shirley went to a doctor. She was given medication. On February 17 she was hospitalized. It was determined that Shirley was suffering from a ruptured fourth lumbar disk. On February 23 a chemonucleolysis procedure was performed. She was later released. Shirley was again hospitalized in April 1984 for a period of 10 or 12 days during which the injured disk was surgically removed by means of a laminectomy. Shirley was hospitalized a third time in August 1985. Three caudal blocks were performed in an attempt to relieve pain.

Plaintiffs present two points on appeal. Both points assert trial court error in the giving of certain instructions to the jury.

Plaintiffs' first point is directed to jury instructions Nos. 10 and 15. Instruction No. 10 was part of the jury instructions given with respect to Shirley's claim for personal injuries. Instruction No. 15 was part of the jury instructions given with respect to Toby's claim for loss of consortium. Both instructions are identical other than their respective numbers and the references in each instruction to the verdict director applicable to the appropriate plaintiff's claim. For brevity, only Instruction No. 10 is set out below.

Instruction No. 10 states:

You must not assess a percentage of fault to defendant Springfield General Hospital if you believe that, at the time plaintiff Shirley Willis fell on said defendant's parking lot, there existed throughout the City of Springfield a general condition of ice, and the condition of said defendant's parking lot, as submitted in Instruction No. 8, was not a special, isolated condition.

The copies of the jury instructions included in the legal file have no MAI notations nor designations of what party submitted the instructions. ¹ Appellants state in their brief, however, that Instructions Nos. 10 and 15 are "essentially modified MAI 33.01, 33.05 and 37.04."

Instruction No. 8, to which Instruction No. 10 refers, states:

In your verdict you must assess a percentage of fault to defendant if you believe:

First, there was ice on the parking lot of defendant and as a result the parking lot was not reasonably safe for customers, and

Second, defendant knew or by using ordinary care could have known of this condition, and

Third, defendant failed to use ordinary care to remedy it, and

Fourth, as a direct result of such failure, Plaintiff Shirley A. Willis was injured.

Instruction No. 13, to which Instruction No. 15 refers, is the same as Instruction No. 8 other than the words, "Plaintiff Toby G. Willis' wife was injured and Plaintiff Toby G. Willis thereby sustained damage," are substituted for those words appearing in the last line of Instruction No. 8 as it is quoted above.

Plaintiffs contend that Instruction No. 10 and Instruction No. 15 misstate the law because those instructions assert that defendant was not subject to liability if the icy condition on its parking lot was a result of a general condition within the geographic area. Plaintiffs claim that Instructions Nos. 10 and 15 permitted the jury to wrongfully conclude that defendant had no duty, under the facts of this case, in the exercise of ordinary care, to clear the parking lot. They contend that defendant had a snow removal policy and, therefore, had a duty to clear or otherwise make the parking lot safe to walk upon, and that Instructions Nos. 10 and 15 did not permit the jury to so find.

Plaintiffs concede that the general rule of law is that an invitor has no duty to remove snow or ice on outside areas where the snow or ice accumulated naturally as a result of general weather conditions within the community. That rule was first applied in Woodley v. Bush, 272 S.W.2d 833, 834-35 (Mo.App.1954). ² Woodley was a case in which a tenant in an apartment building sued the owner of the building for personal injuries she sustained from a fall on icy grounds adjacent to the building. The area where the tenant fell was owned by the owner of the building and used by tenants to exit from the building. The tenant was denied recovery. The rule that there is no duty required to remove snow or ice that accumulates naturally and is a condition general to the community is the same for landlords, municipal corporations, invitors and employers. Alexander v. American Lodging, Inc., 786 S.W.2d 599, 601 (Mo.App.1990). In adopting the rule, the court, in Woodley, concluded:

This appears to be reasonable for where the condition is one general to the community it creates a natural hazard to everyone who ventures out at such time. The condition is brought about by no one and no one's efforts can appreciably lessen the danger present. As applied to the state of facts before us, the alley through which the plaintiff walked was just as icy as the premises upon which she lived, so that when she was on her way to and from work she was at all times subject to the danger of slipping. Had there been a clear walk to the alley it would have afforded her sure footing but for a very few feet and left her confronted with an icy road for the rest of her way. Thus any effort of the landlord would in fact only diminish the natural hazard to a very negligible degree.

The logic of the majority of the cases is consequently impelling and the landlord should not be held liable to a tenant for injuries caused by a natural accumulation of ice and snow general to the community.

Woodley v. Bush, supra, at 835.

Plaintiffs assert, however, that the facts upon which they base their claims fall within an exception to this general rule (the general rule is known as the "Massachusetts rule"). That exception is explained in ...