Lulu BLACK, Plaintiff and Appellant, v. V. Pershing NELSON et al., Defendants and Respondents.
No. 13470.
Supreme Court of Utah.
Feb. 24, 1975.
Ray H. Ivie, Ivie & Young, Provo, for Smith.
H. Wayne Wadsworth, Hanson, Wadsworth & Russon, Salt Lake City, for Nelson.
CROCKETT, Justice:
Plaintiff, Lulu Black, sued to recover for injuries sustained from a fall down a flight of stairs just inside the rear door to thе Gladys’ Beauty Salon on the corner of University Avenue and 200 North in Pro-
In reviewing the directed verdict, which deprives the plaintiff of аn opportunity to present her contentions to the jury, it is our duty to survey the evidence, and such inferences as can fairly and reasonably be derived therefrom, in the light favorable to the plaintiff‘s contentions, to see if there is any foundation therein upon which reasonable minds might find facts upon which to predicate a right to recover. But if there is no such foundation, the trial court correctly ruled as a matter of law that there was no basis to justify submitting the case to the jury.1
Plaintiff was a rеgular patron of the Gladys’ Beauty Salon. Pursuant to appointment she went there at 2:00 p. m. on June 25, 1971, to have her hair set. She parked her car and entered thrоugh the front entrance on University Street, as patrons are wont to do. After her hair was put up in curlers, she left for a short time to meet her husband at the nearby Provо Courthouse. Upon her return she parked her car in a different place and decided to enter by the rear entrance. She says this was because she did nоt want anyone to see her with her hair in curlers. This rear door opens onto a hallway landing area, which is five feet wide and ten feet long. On the left, or south side, is a door entering into the beauty salon which is lettered “Employees Only.” On the right, or north side, is the door to The Spice Rack, the other business in the building. At the west end of the landing is аn open stairwell where stairs lead down to the basement. The evidence shows that, though it happened infrequently, some patrons of the beauty salon had been seen to use this rear door; and that the plaintiff had used it herself on another occasion.
The Landlord‘s Liability
Concerning the landlord Nelson: The evidence is that he had instructed his tenants that their patrons were not to use the rear entrance; that it was to be used only by employees and service men; and that the outer rear door should be kept shut and locked. One of the reasons for this is that that was the only access to the basement where valuable property was stored. Further, that the defendants Smith adhered to that policy generally and had instructed their employees accordingly. In view of those uncontroverted facts, and espеcially coupled with what is said below about the plaintiff‘s own conduct, there seems to be no question about the correctness of the trial court‘s actiоn in directing a verdict in favor of the landlord Nelson.
The Beauty Salon‘s Liability
Mrs. Black‘s testimony is that upon closing the outside door behind her she was left in darkness, and that, thinking she was as close to thе beauty shop door as to the outer door, she took two or three steps toward the beauty shop door and fell down the stairway. Her contention as tо the issues of fact which she should be permitted to have passed upon by a jury are: as to defendants’ negligence in their failure to keep this rear hallway lightеd and in providing some safeguard against falling into the stairwell; and whether she used due care for her own safety under those circumstances.
We agree with the general principle that the duty of due care varies according to the dangers reasonably to be anticipated;2 and that this applies to the protection of patrons or customers of business premises in the normal and usual use
We bypass for the moment the question as to whethеr the defendants used due care for the plaintiff as a business invitee: Quite aside from that problem, there is another obstacle to her success here. A well-recognized and fundamental rule of safety is that one may not proceed into an unknown area without exercising some reasonable degree of caution to see that he can safely do so; and that if he fails in that regard and suffers injury, he is precluded from blaming someone else and recovering damages.3
On the basis of the plaintiff‘s own testimony she seems to be confronted with a dilemma. If she was in complete darkness, then she should have reopened the outer door to let in the daylight; if it was light, she should have seen the stairwell, and have avoided stepping beyond the landing and into it.4 In accordance with the rules above stated and the previous adjudications of this court, we are not persuaded that we should disagree with the ruling of the trial court that reasonable minds could not find facts which would еntitle her to recover.
Affirmed. Costs to defendants (respondents).
HENRIOD, C. J., and ELLETT and TUCKETT, JJ., concur.
MAUGHAN, Justice (dissenting):
Respectfully, I dissent on the ground that reasonable minds could disagree as to whether plaintiff exercised reasonable carе for her safety, under the particular circumstances. The cases cited in the majority opinion in footnote 3 are factually distinguishable from the instant actiоn in that the plaintiffs therein stepped into areas with which they were not acquainted. In contrast, the plaintiff here had previously used this rear entrance (as hаd others), and was familiar with the objective she sought, viz., the door to the salon, which was apparent to her because of a beam of light underneath the doоr, between the bottom of the door and the sill. The majority concludes as a matter of law that plaintiff had only one reasonable alternative when the back door closed, i. e., to retreat when she encountered darkness. Considering plaintiff‘s general familiarity with the area, reasonable minds might differ as to her exеrcise of due care in proceeding.
In Whitman v. W. T. Grant Company1 this court stated that to justify holding that a jury question as to negligence exists, where injury has resulted from an observable hazard, it is essential that there be something which could be regarded as tending to prevent one from seeing the danger, thus providing some reasonable basis for finding that even though one exercised due care, one could be excused from seeing and avoiding it.