Ruth A. CARRENDER аnd Walter R. Carrender, her husband v. Paul FITTERER and Linda L. Fitterer, his wife, Appellants.
Supreme Court of Pennsylvania.
Decided Dec. 14, 1983.
469 A.2d 120
Argued Oct. 17, 1983.
Herbert A. Schaffner, Harrisburg, for appellees.
OPINION OF THE COURT
ROBERTS, Chief Justice.
This appeal arises from an action in trespass brought by appellee Ruth Carrender in which appellee sought to recover for injuriеs sustained when she slipped on a patch of ice in a parking lot owned by appellants Paul and Linda Fitterer and used by appellants to provide parking to patients attending appellants’ chiropractic clinic.1 A jury found appellants to have been sixty-five percent negligent and appellee to have been thirty-five percent negligent, and awarded appellee damages of $70,000, an amount which was molded by the trial judge to reflect the parties’ percentages of negligence. The judgment entered was affirmed by a panel of the Superior Court, and this Court granted allowance of appeal.
We conclude that the evidence presented by appellee was insufficient to support a verdict in her favor. Accordingly, we reverse the order of the Superior Court and remand the record to the Court of Common Pleas of Dauphin County with the direction that judgment be entered in favor of appellants.
Appellee had been a patient of appellants’ clinic for approximately seven years prior to the accident. On January 16, 1979, the day of the accident, apрellee drove to appellants’ clinic to receive treatment for a back ailment. She parked her car next to a parked car in the patients’ lot, which is built on an incline contiguous to the clinic. A sheet of smooth ice covered the area of the parking lot between the two cars, but the rest of the surface of the parking lot
Although appellee was aware that several convenient parking spaces free of ice were available, she kept her car
Appellee brought the рresent trespass action alleging that appellants had been negligent in failing to maintain the parking lot properly. At the close of appellee‘s case, appellants requested the entry of a compulsory non-suit on the ground that appellee had failed to establish a prima facie case of negligence. The trial court denied the request and dirеcted appellants to proceed with their evidence.
At the conclusion of the parties’ presentation of evidence, the trial court instructed the jury that a possessor of land has only a limited duty to prevent harm to invitees from known or obvious dangers. The court also instructed that if the jury should find that appellee had been contributorily negligent, such negligence could be taken into account in apportioning fault, and that any negligence on appellee‘s part would mitigate appellants’ liability, if any, to appellee. The court, however, refused appellants’ proposed “assumption of risk” charge, reasoning that the defense of assumption of risk as a complete bar to recovery had been wholly merged with the dеfense of contributory negligence, and that the proposed charge was thus incompatible with Pennsylvania‘s comparative negligence statute,
On appeal, a panel of the Superior Court sustained the trial court‘s denial of appellants’ motions for judgment n.o.v. and a new trial, ruling that the trial court had not erred in refusing to charge the jury on the defense of assumption of risk. On this appeal, appellants renew their contention that the motions for judgment n.o.v. and a new trial should have been granted.
On this record the controlling issue is whether the trial court properly allowed the case to proceed to the jury on appellee‘s theory that appellants owed a duty to prevent harm to appellee from a known or obvious danger. We conclude that appellee‘s own testimony compels the conclusion that, as a matter of law, appellants were under no duty either to take precautions against or to warn of the isolated patch of ice on the parking lot.
The standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, licensee, or invitee. See Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); Restatement (Second) of Torts §§ 328-343B (1965). The parties agree that appellee was an invitee on the day she was injured.
(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 invitee, 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.
Restatement, supra, § 343. Thus, as is made clear by section 343A of the Restatement,
“[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”
Restatement, supra, § 343A. See Atkins v. Urban Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 352-53, 414 A.2d 100, 104 (1980) (“the law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee“); Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 106-07, 266 A.2d 478, 480, 483 (1970) (same); Repyneck v. Tarantino, 415 Pa. 92, 95, 202 A.2d 105, 107 (1964) (same); Kubacki v. Citizens Water Co., 403 Pa. 472, 170 A.2d 349 (1961) (same). A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Restatement, supra, § 343A comment b. For a danger to be “known,” it must “not only be known to exist, but . . . also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id. Although
Appellee‘s own testimony showed not only that the existence of the ice was obvious to a reasonably attentive invitee, but also that appellee herself was aware of the ice and appreciated the risk of traversing it. Before alighting from her vehicle, appellee knew both that a sheet of ice lay next to the driver‘s side of the parking space which she had selected and that this condition presented a danger. She nevertheless proceeded across the ice, both when she emerged from her car and again on her return to the car. There was nothing presented on the record to indicate that, notwithstanding the obviousness of the danger, appellants should have anticipated that the patch of ice might go unnoticed by appellee or any other patient; on the contrary, appellants could reasonably expect that, in light of the number of clear, convenient spaces available, appellee and other invitees would recognize the danger posed by the ice and choose to park in another, ice-free space to avoid it. See Restatement, supra, § 343A comment g.5
In light of appellee‘s uncontradicted testimony, it must be concluded that the danger posed by the isolated patch of ice
Although appellee concedes that her testimony supports a determination that the danger was either known or obvious to her, Brief of Appellee at 10, she contends, and the Superior Court concluded, that her knowledge of the risk is relevant only to the question whether she assumed the risk, and not to the issue of whether appеllants owed her a duty of care in the first instance. According to appellee, once the invitee proves the existence of the invitee-possessor relationship, the existence of a duty has been established, and the burden then shifts to the possessor of land to show that the invitee is not entitled to relief because the invitee assumed the risk of injury from a hazardous conditiоn of the possessor‘s property. Appellee further argues that the comparative negligence statute,
Appellee misperceives the relationship between the assumption-of-risk doctrine and the rule that a possessor of land is not liable to his inviteеs for obvious dangers. When an invitee enters business premises, discovers dangerous
Viewed in this context, appellee‘s claim based on the comparative negligence statute must fail. For fault to be apportioned under the comparative negligence statute, there must be two negligent acts: a breach of duty by the defendant to the plaintiff and a failurе by the plaintiff to exercise care for his own protection. Whatever the effect of the adoption of a system of comparative fault on the defense of assumption of risk where that defense overlaps and coincides with contributory negligence, the adoption of such a system has no effect where, as here, the legal consequence of the invitеe‘s assumption of a known and avoidable risk is that the possessor of land is relieved of a
As the record fails to establish a duty owed to appellee by appellants, the order of the Superior Court affirming the denial of appellants’ motion for judgment notwithstanding the verdict must be reversed and the record remanded to the Court of Common Pleas of Dauphin County with the direction that judgment be entered in favor of appellants.
Order of the Superior Court reversed and record remanded to the Court of Common Pleas of Dauphin County for proceedings consistent with this opinion.
FLAHERTY, J., joins in this opinion and files a concurring opinion in which LARSEN, J., joins.
FLAHERTY, Justice, concurring.
I join the majority but write separately to emphаsize that plaintiff is barred from recovery because the possessor of land owed no duty to protect from an obvious hazard, not because plaintiff assumed a risk. As was observed in Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), where a plaintiff, as here, subjects herself without any justification to the danger of injury, the proper disposition of the case is “the court‘s determination that, as a matter of law, defendant owed plaintiff no duty. . . .” supra, 496 Pa. at 613, 437 A.2d at 1209.
LARSEN, J., joins this Opinion.
Notes
Q. Did you notice what the surface of the parking lot was on January 16th when you put your feet down on the ground?
A. Yes, it was icy.
Q. Did you look down at the ice?
A. Yes, I looked down at the ice.
Q. Were you worried about it at that point?
A. No, I was not.
Q. But you knew that you could not walk on ice with that prosthesis without endangering yourself?
A. For any distance, yes, sir.
Q. You knew that if you did not have something to balance yourself or to hold onto in this particular situation you were subjecting yourself to a danger of your foot slipping, did you know that?
A. I had not given it a thought.
Q. But you knew it when you got out of the car because you were concerned about it, weren‘t you?
A. I was concerned about the ice underneath me, yes, sir.
Q. Your concern was that you could slip because of your prosthesis?
A. There was a possibility that I could.
Q. And you knew that?
A. I knew that but how was I going to get from that car over to my door.
At another point during cross-examination, the following exchange occurred:Q. You knew from past experience ice was a special hazard to you?
A. And I tried to avoid it.
Q. I understand that and if ice was a special hazard to you unless you had some means by which you could hold or gain support, then you realized the hazard of injuring yourself, didn‘t you and you knew that?
A. Yes, I think I can answer yes to that question.
(a) General rule.— In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(b) Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.