DAWSON, Appellant, v. PAYLESS FOR DRUGS, Respondent.
Supreme Court of Oregon
Argued June 5, reversed and remanded November 29, 1967
433 P.2d 1019
Walter H. Grebe, Portland, argued the cause for respondent. With him on the brief were Morrison & Bailey and Thomas E. Cooney, Portland.
Before PERRY, Chief Justice, and McALLISTER, SLOAN, O‘CONNELL, DENECKE, HOLMAN and LUSK, Justiсes.
This is an action to recover damages for personal injuries. At the close of plaintiff‘s case defendant moved for a judgment of involuntary nonsuit which was granted, and plaintiff appeals.
Plaintiff, a 63-yеar-old woman, was injured when she slipped and fell on ice in defendant‘s parking lot in La Grande, Oregon. Plaintiff and her husband drove into defendant‘s parking lot to shop at defendant‘s store. After making her purchasе she left the store and on the way back to her car she slipped and fell on the icy surface of the parking lot. The accident occurred on December 15. Two inches of snow had fallen. Plaintiff wоre low shoes and galoshes. There had been measurable precipitation for eight days prior to the accident. Ice formed on the ground as a result of the rain freezing at night. Plaintiff testified that when shе arrived at the parking lot and got out of her car she knew that “it was icy and slick all over,” but that it was more slippery where she fell than other areas on which she had walked in the parking lot. She testified that because of the icy condition of the parking area she tried to walk carefully, watching her footing so that she would not fall. She admitted that from her previous use of the parking lot she knew that defendant did nоt do anything to remove snow or ice from that area.
Defendant‘s motion for an involuntary nonsuit was made upon the ground that defendant was not negligent or alternatively that plaintiff was contributorily negligent. Defendant‘s position is that which is expressed in
“A possessor of land is not subject to liability to his licensees, whether business visitors or gratui-
tous licensees, for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein.”
Ordinarily, if those who come upon an occupier‘s premises are aware of a dangerous condition therеon, the occupier‘s conduct in maintaining the condition cannot be regarded as unreasonable and therefore he is not negligent. The question is whether the plaintiff‘s knowledge of the danger inevitably bars his recovery.1 Section 340 of the
But the rule has been severely criticized and in a growing number of cases it has been held that the plaintiff‘s knowledge of the danger does not necessarily absolve the occupier from liability. Recently we adopted this view. In Mickel v. Haines Enterprises, Inc., 240 Or 369, 372, 400 P2d 518 (1965), we said:
“* * * Prior knowledge of the danger by the injured persоn will not in all instances absolve the property owner of responsibility.”
The Second Restatement of the Law of Torts now states the rule in this qualified form.
“(1) 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.”
2 Restatement (Second), Torts at p. 218 (1965).
“There are, however, cases in which the рossessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obviоus condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.”
2 Restatement (Second), Torts , Explanatory Notes § 343A, comment f at 220 (1965).
The rule stated in
Although plaintiff was aware of the dangerous condition of the parking lot, it cannot be said that she was contributorily negligent as a matter of law. Massor v. Yates, 137 Or 569, 3 P2d 784 (1931) is in point. In that case the court held that the plaintiff, a tenаnt in defendant‘s apartment house, was not contributorily negligent as a matter of law in attempting to use steps on which defendant had permitted snow and ice to accumulate. The court said:
“The question of contributory negligence is one of fact for the determination of the jury. If plaintiff knew that the steps were in a dangerous condition, it was incumbent upon her to exercise a higher degree of care, but we cannot say, as a matter of law, that she failed to use that degree of care which an ordinarily prudent person would have exercised under similar circumstances: Reardon v. Shimelman, supra [102 Conn 383, 128 A 705, 39 ALR 287]; Roman v. King, 289 Mo. 641 (233 S.W. 161, 25 A.L.R. 1263).” Massor v. Yates, 137 Or at 574, 3 P2d at 786.4
Our adoption of the rule stated in
Nor does our present holding go so far as to impose a duty upon the possessor in every case in which he has knowledge of a condition of danger upon his business premises. The duty arises only when the condition is unreasonably dangerous. The distinction is developed in 2 Harper and James, The Law of Torts § 27.13, p. 1489-90 (1956). There it is said:
“People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to takе perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.”
Thus, it is pointed out that an ordinary flight of stairs in a common outdoor setting is not an unreasonably dangerous condition, whereas the same stairway covered with ice may be. In the latter circumstance, “the condition of danger is such that it cannot be encountered with reasonable safety even if the danger is known and appreciated.” Id. at p. 1493. When the potential for harm reaches this level the possessor of business premises should have a duty to take certain precautions for the safety of the invitee.
It does not follow that the possessor is the in-
In the present case the jury could have reasonably found that (1) the probability of harm created by the icy condition of the parking lot was unreasonably great, (2) it was not infeasible for defendant to eliminate the unreasonable danger, (3) plaintiff was not contributorily negligent, and specifically that the importance of plaintiff‘s mission in shopping at defendant‘s store was sufficient to justify encountering the danger.
The judgment is reversed and the cause is remanded for a new trial.
I find I am unable to agree with the majority‘s views under the facts of this case.
The majority fails to mention the fact that according to рlaintiff‘s testimony the means of ingress and egress from the defendant‘s parking lot to defendant‘s store was through the rear door and that the sidewalks from which shoppers could enter and leave the front door оf defendant‘s store had been cleared of ice and snow. Therefore, since, as pointed out in the majority‘s opinion, the plaintiff knew “that from her previous use of the parking lot * * * the defendant did not dо anything to remove snow or ice from that area,” and as I have pointed out there was a safe means of ingress and egress to the store, it clearly appears that the plaintiff was not confrоnted with the necessity of “foregoing” the right to enter the store for the purpose of making a purchase.
The law is well established—and needs no citation of authority—to the effect that a person whо needlessly encounters a known hazard is guilty of contributory negligence as a matter of law.
I would affirm the judgment of the trial court.
McALLISTER, J., and LUSK, J., join in this dissent.