*1 Allegretti, Verna Hammond L.M. et al. M.D. 6, 1974.] 674S110. Filed June [No. Ruman, Hammond, I. appellant.
Saul Dougher- Spangler Jennings, Spangler, Hawk, D. Robert Gary, appellees. ty, To Transfer
On Petition Cir- in Lake The plaintiff-petitionerfiled suit J. Hunter, *2 result damages injuries seeking as a sustained cuit Court defendant-respondent, Hammond slip a and fall of the then Clinic’s, icy parking venued lot. The cause was judgment motion, on Superior Upon Porter defendant’s Court. by the trial conclusion entered court was evidence Appeals plaintiff’s in of affirmed. of chief. The Court case presents following question What of law: This case duty a of does a landowner-inviter owe to business invitee on respect accumulation of with natural ice and snow adjacent place private parking lot to his landowner’s business? Judge relying Appeals, per Hoffman, primarily
The Bowl, Beacon on of Kalicki Inc. 673,
App. 132, held that landowner-inviter duty to a business to clear the natural owe invitee open-air parking of snow and ice from lot. only Court, however, if the stated landowner-inviter dangerous condition than would otherwise a more “creates natural accumulation of and snow attributable ice be imposed.” will facts summarized the of the case
The Court follows: approximately 1967, 4, 1 inch January there was
“On snow snow No snow approximately of new ground inch on the % fell. January 5, another inch of snow fell. On however, 1967, an inch January 6, .05 on fell morning during January 7,1967. fell of rain snow of the Hammond Clinic parking lot January 4,1967, the “On L. plowed R. and salted had been defendant herein] [the Babcock. drove 7, January on 1967 she testified plaintiff “The accompanied by her husband Clinic Hammond there testified the car. She in passengers other two also not solid. She highway was but on the ice was parking testified that there was ice and on the whole lot. parked parking testified She that she her car in the Upon lot returning into the her went clinic. she car slipped fell causing injuries on thereby complained appeal.” of in this Appeals’ find (and the Court of We decision decision Kalicki) entirely in princi- to be inconsistent with bedrock ples liability. occupier’s granted reason, For this have we doing, transfer proper and, delineate rule of so expressly overrule Kalicki. owed landowner-inviter to a invitee English
was formulated Court of Common Pleas the landmark case of Indermaur v. Dames L.R. C.P. L.J.C.P. aff’m’d. L.R. C.P. 36 L.J.C.P. guests respecting licensees, “The authorities and other bare respecting and those in servants others who consent to being a risk, cur inapplicable, therefore we are consider what is building the law as to the persons resorting thereto the course reference *3 business, upon express implied. his invitation, or com mon that shop: case is of a customer in a but obvious it is only that class; this is for, one of a whether the customer actually chaffering not, time, buys is actually the or or is, according he practice, to an authority and undoubted course of to by entitled the exercise of the reasonable care damage occupier prevent danger, from unusual of which occupier ought know, trap-door knows or a the unlighted: open, unfenced, left Lancaster Canal Com pany Parnaby, (E.C.L.R. 39), v. 11 Ad. E. & 223 vol. 162; per Chapman Rothwell, & D. P. cur. E.B. & E. (E.C.L.R. 96), vol. (Q.B.) 315, 27 L.J. where Southcote Stanley, cited, 1 H. & (Ex.) N. L.J. was +25 Justice, Erie, J., the Lord Chief then distinction said: ‘The (as of plaintiff is the a between visitor the inwas Stanley), himself, who must Southcote v. take care of a customer, who, of public, as one the is invited for the purposes protection by carried on of business the defendant.’ This depend upon being a contract fact of way shopkeeper’s during into in the entered of stay customer, but that the customer of fact shop pursuance into a has come tacit invitation shopkeeper, given by view to tvith business which concerns himself. “And, respect to such it least, a visitor at consider we law, he, using part settled that reasonable care on his his for safety, expect occupier own his danger, there is entitled to shall on part prevent use reasonable damage care to unusual ought which he know; that, knows where neglect, question evidence whether such rea- sonable taken, by care has been notice, lighting, guarding, otherwise, and whether there was contributory negligence sufferer, in the jury determined as matter of (emphasis added) L.R. C.P. at fact.” Indermaur has become occupier’s liability cornerstone of in all American jurisdictions. common law The Restate- ment (Second) Torts (1965) incorporated has § English rule: possessor “A subject land is physical harm caused to his invitees land, if, condition on the only but (a)
he knows or the exercise reasonable would condition, discover the and should realize involves an unreasonable risk in- of harm to such vitees, and
(b) expect should they will not discover or realize danger, protect against will fail to themselves it, and (c) protect exercise reasonable care to them fails against danger.” (emphasis added) Dean Prosser characterizes the nature the landowner’s duty vis-a-vis an invitee as follows: occupier “The invitees, safety is not an insurer of the only to exercise reasonable care protection. obligation But the care is a full one, applicable respects, extending everything in all that threatens the invitee toith an risk harm. unreasonable occupier only injure must not use care visitor by negligent activities, dangers and warn him of latent inspect which premises he does knows, but must also he possible to discover conditions of which *4 know, precautions not protect take reasonable to dangers
the invitee from which are foreseeable from arrangement obligation original or use. The extends to the premises, dangerous construction of the where it results in a premises open condition. fact public are account, greater must be taken into and will call for pres- private of a visitor at a If the than home. meddling pro- expected, to their ence of children is be anticipated; ‘attractive
pensities principle of be and the trespassers. applies to no less to nuisance’ child invitees than resulting “On the there other hand is no for harm be conditions from which no risk to unreasonable was anticipated, or which not those did know mere could discovered with care. The have danger enough or of a defect is not existence liability, such to establish it is to of such unless shown be a character or of may jury reasonably duration that conclude that (citations (em- omitted) due care phasis discovered.” would have Prosser, added) (4th ed.) (1971), of Torts Law § p. 392-3. principle firmly Indermaur imbedded is also The venerable Indiana—which, us, to in the decisional law makes the Court Appeals’ all more decisions the Kalicki case legal duty by a This Court defined the owed remarkable. early as business-landowner business-invitee as 1884: “If, however, occupant any owner of lands, by or en ticement, inducement, allurement or to come causes others lands, obligation upon or over his then he assumes the persons provide coming, reasonably toward so purpose. way may by suitable invita An owner tion, or express implied, or another either induce to come pass premises, keeping such over his them in without passing by the safety his over as admit of condition of provided injury, designated prepared means or he without occupant for an or uses injury To make owner liable due care. something premises, passing by over his one received acquiescence land passive of his in the use more than a mere by necessary. long used lands So are convenience, others is others, frequent, for own it never so his, designation if, act or But some is not liable. he persons was way path or over that a are led believe having travellers, others used to be intended persons then as go way, lawful occasion obligation keep it free an occupant comes under owner might pitfalls cause which obstructions from them hurt. equivalent to invita must be inducement permission implied; express or mere is not tion, either Co., Iron and Franconia Steel Carleton sufficient. added) The Evansville & Terre (emphasis 216.” Mass. Griffin, R. R. Co. v. Haute
87
Railway
Indiana, Bloomington
and Western
See also:
121;
399,
Co.,
(1888),
Barnhart
115
16
et al. v.
Ind.
N.E.
McCullough
90
(1910),
477,
Co.
174 Ind.
William Laurie
v.
Thompson
1014;
Cemetery
East Hill
Rushville
N.E.
Co.
v.
of
(1912),
App. 417,
(landowner
53
an
Ind.
Judge writing Emmert, for a unanimous court in case of Dept. Stanley (1950), Robertson Bros. Store 228 Ind. following authority support 90 N.E.2d cites the of in line proposition of duty that a of business-landowner owes a ordinary to maintain reasonable care business reasonably safe condition: “ recognized proprietor is store ‘While of a degree is not for any burdened unusual care of safety regard required customers, of and in that is only ably ordinary keep to exercise care to his in a store reason condition, and safety is an of of insurer customers, nevertheless, he must maintain it in injury lawfully entering manner as not to cause one purpose purchases.’ making store of Atlantic Great v. Custin (1938), Tea 54, 59, Co. 214 Ind. 13 Pacific express ‘Invitation, N.E.2d 14 N.E.2d whether 538. implied, imposes duty ordinary me care that place reasonably invitation be the invitee.’ safe for 163, 170, Silvestro v. Walz 222 (1943), 51 629. Ind. N.E.2d active, duty continuous It ‘This is an one. owed her against through injury negligent protection duty of acts of 8th, Roebuck & v. Peterson employees.’ Sears, (CCA Co. its 1935), Penny, 2d also J. C. Inc. Keller 76 F. See App. 253, meyer 899; N.E.2d N.E.2d v. Moore Company Ind. Woolworth F. W. added) (emphasis 490, 48 644.” Ind. at 378. foregoing discussion, inescapably led light is one
In occupier under that a landowner is to the conclusion protection of for the reasonable care exercise premises. duty arises This on invitees question of whether the de a matter law. degree requisite fendant-landowner exercised Bros., question for Robertson strictly the trier fact. supra, at 381. Appeals appellee
The Court of and the concede that general vitality. However, rules have continued above both this case and Kalicki carves out exception principle to the sound law first enunciated zealously Indermaur and later In followed in the courts exception That property diana. is that an owner or (as is under no as matter law to remove natural distinguished unnatural) accumulations open-air parking occupied from an lot owned or Although position supported authority inviter. by ample *6 jurisdictions,1 repugnant from other we believe it to be principles foundational liability. occupier’s of common law important, It is point, emphasize at this that this private parking adjacent involves a It lot to a clinic. medical public area. public parking sidewalk involve in Our decision this case should and be limited to its facts no others. Two cases which the Court relied public cases, involve sidewalk there accidents. In sidewalk present are additional factors which are not in this case— being municipal abutting requiring those ordinances owners occupiers duty ice or and common remove snow law municipalities reasonably to maintain and streets In bar, sidewalks.2 the case at the Hammond Clinic maintained private adjacent parking exclusive dominion over the area. advocating emphasize imposi are not We we suggesting tion of strict in case, nor we are requiring there be an inflexible rule immediately inviter remove the natural accumulation premises. of ice and snow from his business What (1963 Neb.), 578, 1. Crawford v. Soennichsen 120 W. 2d 175 N. Neb. Company (1963 87; M.), Crenshaw v. Firestone Tire & Rubber N. 380 (1963 M.), 84; P. 2d Hallett v. Furr’s Inc. 72 N. M. N. 378 P. 2d (1963 377; Wyo.), 718; M. Watts Holmes 386 P. 2d Wise 71 N. Great Ohio), (1953 Ohio Atlantic Pacific Tea 115 N.E.2d & Co. 320; Company (1963 Ill.), App. Ill. Zide v. Jewel Tea App. 2d 217. Sears, App. Cowin v. Roebuck Co. 2. See: 131; Nyers App. 117, v. Gruber Ind. 275 N.E.2d 129 N.E.2d advocating duty imposed upon is that are be a we there landowner-inviter reasonable care in the mainte- exercise premises. nance of business as a This should obtain arising matter all cases out of inviter-invitee legal matter, liability is, course, Ultimate context. another separate legal duty. distinct from the of a There existence will be situations when natural liable, inviter will render the will others when it point to
not. The critical is that made the condition of premises and the actions taken or not taken the inviter must all be considered invitee the trier of fact determining legal liability. the existence or non-existence of preclude To the trier fact’s consideration of condition unnecessarily accident time is to unjustifiably dilute a principle well-established of tort law. judgment, In our dilution the inviter’s under- principles public mines the responsibility. basic If inviter is absolved of all responsibility, privately vis-a-vis operated parking lots, who, then, will remove natural accumulation of ice and snow when such accumulations become Clearly, hazardous ? the removal of private ice and snow from parking lots is not the responsibility of municipality state, highly probable and is point that at some time the natural accumulation of ice and snow will create *7 hazardous society conditions? largely predicated Our is an on allocation of responsibilities duties among and its members government. This allocation enables us to achieve a degree order, reasonable predictability accountability. course, Of this allocation or distribution of burdens should equitable be and reasonable. any
We unable discern why are reason responsibility maintaining reasonably for premises safe business should not placed upon be the shoulders of an inviter. The business inviter holds out the for the of invitees de- use presence rives a direct from benefit Surely, thereon. distribution such a burden inviter—particularly to an 90 dominion, light derived lack of of the benefits and the state’s inequitable allocation. unreasonable constitute authority jurisdictions
There substantial from other support position.3 *S.However, Supreme our we find Alaska Kremer Center, (1969), Court’s decision in Food v. Carr’s Inc. germane. particularly following 462 P. 2d to be excerpts opinion disposi are which we believe be tive the issues this case. reaching “In conclusions, rejected these we have Carr’s contention no cause of action can a be maintained resulting against injury a invitee landowner slip from a and fall occasioned natural accumulations argu- adopt ice and snow. also We have declined Carr’s any duty by possessor ment that a of care a virtue of the owed of land to discharged by business knowledge invitee’s invitee Finally, condition of the land. holding our in the case at reflects the that none bar view prior precedents preclude of our own reached result here. natural-unnatural “Thus far accumulation of ice involving has owed been limited cases rule municipalities who, by condition class, as a to licensees take possessor We himself uses the land as it. invitee-private to the business decline extend rule possessor licensee, invitee of land Unlike the situation. implied possessor’s accompanied by an land enters prepared made
representation land has been that ‘the College (1972), Isaacson Husson 3. A. A. 2d 297 98: jury Supreme question of Maine held that it was a whether Court clearing University pathway used sufficient care between a dorm dining court, however, specifically application That limited the hall. college rule to the situation and noted that it would of the enunciated passer-by apply to the situation. Langhorne Apts., (1966), Bisson 150 Road Inc. v. 207 Va. B. Supreme involving a landlord and tenant. The 2d S. E. Virginia to remove that a landlord had held period of time. within a of snow Super. Co., and Pacific Tea J. Atlantic N. v. Great Nelson C. involuntary after dismissal of a cause involved the 2d 599 A. argument. in effect indicated that there could The court opening light parking properly lot. failure to 464, 121 Co. and Pacific Tea Pa. v. Atlantic Morris D. icy grocery slip parking lot. on an store and fall involved A. 2d The jury. negligence matter for the was a question of Super. Safeway Stores, Inc. 77 N.J. Merkel E. noted Morris decision. parallels the above 2d 52 A. *8 may reception.’ ready and business invitee A for the undertaking steps by to affirmative be entitled safety. possessor promote of land in order the invitee’s significant standard We discern of distinction between the by municipalities care which Alaska is owed sidewalks, that owed a licensees streets by land, private possessors Carr’s, to such as metamorphize Alaska’s conditions invitee. climatic do arising reason- all able risks for the business invitee. Nor from conditions into risks ice snow persuaded are we argument policy in Alaska appellee result in unreasonable it would Carr’s pos- private-commercial costs snow, require possessor to clear of land ice and sessor remedy amount unreason- conditions which otherwise of harm to business invitees. mere risks able fact prevail many throughout months and ice conditions Alaska is not various locations in rationale in and of sufficient itself possessor insulation land liability condi- to his business invitee. Nor do such climatic negate possessor possibilty have tions should despite anticipated to the business invitee harm the latter’s knowledge personal tions snow and condi- general (em- obviousness such conditions.” added) at phasis 2d 462 P. 750-1-2. conclusion, care owed in- In way in no an invitee should diminished viter presence accumulations of ice snow. of natural determining trier of inviter fact whether the engaged proximately conduct result- in substandard legally ing invitee, i.e., injury whether inviter is liable, of natural consider the existence and unnatural should course, fact accumulations of ice and snow. Of the trier of range evidence, into account vast to include should take negli- establishing assumption contributory of risk and facts gence. arriving All of these factors be considered in non-liability. determination foregoing reasons, granted hereby
For all the transfer and the cause remanded to the trial court for determination defendant-inviter exercised reasonable and whether ordinary respect adjacent care with condition parking lot.
Reversed and remanded instructions. Arterburn, C.J., concur; J., DeBruler, J., Givan, dissents *9 Prentice, opinion J., in which concurs.
Dissenting Opinion opinion Givan, I respectfully majority J. dissent from the this case. agree Appeals completely opinion I with the found at N.E.2d 197. majority opinion in this case sees fit to deviate weight throughout authority country and in so
doing establishing responsibility upon the a most difficult private parking owners lots. of law which rule opinion this overturns been realistic has based recognition average person is well aware rain, ice; natural hazards as observer, readily these discernible to casual elements persons proceed that all caution with reasonable obviously prevail. when hazardous conditions Hoffman C.J. correctly weight of the Court of has followed the authority regard. jurisdictions other in this
I disturb that decision. would Prentice, J., concurs.
Note.—Reported at 311 Lobby Taxpayers Orr, Indiana, Inc. et al. v. Robert D. Indiana, Lieutenant Governor State office, of said President et virtue Senate al. 6, 1974.] Filed June 374S67.
[No.