Lead Opinion
[¶ 1.] Francis Janis (Janis) sued Nash Finch Company (Prairie Market) for its alleged negligent failure to exercise reasonable or ordinary care to make its premises safe for him. The trial court granted Prairie Market’s motion for summary judgment on the basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. Janis appeals. We reverse and remand.
BACKGROUND
[¶ 2.] Prairie Market is a supermarket in Rapid City, South Dakota, owned and operated by Nash Finch Company. The morning of January 28, 2004, was very cold, and a northeast wind was blowing. At approximately 7:30 a.m., Janis, a janitor for Youth and Family Services in Rapid City, came to Prairie Market to purchase food for breakfast. He was wearing rubber-soled work boots. The sidewalk leading to Prairie Market was clear of ice and packed snow. Janis walked through the open sliding glass door on the west end of the Prairie Market entryway and stepped onto a commercial rug on the tile floor immediately inside the door. Upon Janis’s second step onto the rug, it slid from under his feet, and he began to fall. Janis reached for a stack of shopping baskets in an attempt to break his fall, but they gave way. He fell awkwardly, twisting his knee and landing on his back. When Janis attempted to get up, he fell a second time. Janis put his hand under him as he fell this second time and felt a patch of ice on the floor. This patch of ice had been hidden under the rug.
[¶ 3.] Beverly Nagel, Prairie Market’s head cashier, witnessed Janis’s fall. When Janis got up, he approached Nagel to speak to her. He showed her his bruised knuckles and told her that his wrist was injured. Nagel walked to the entryway to look at the area where Janis had fallen. She saw that the rug inside the door on the west end of the Prairie Market entryway was out of position as it slid forward during Janis’s fall. She also saw a patch of ice two feet by one foot on the floor where the rug had been. Nagel wrote a narrative report of Janis’s fall and notified management of the incident. Janis went to the hospital for treatment of his injuries, but returned to Prairie Market to speak with Prairie Market management later in the day. When Janis returned to Prairie Market, “wet floor” warning signs and ice melt had been placed near the door on the west end of the entryway.
[¶ 4.] It is not clear how the patch of ice formed under the rug. At the time of Janis’s fall, Prairie Market contracted with a floor maintenance company for overnight
[¶ 5.] Janis initiated this lawsuit against Prairie Market in January 2007. He alleged that he entered Prairie Market as a business invitee and that Prairie Market failed to exercise reasonable or ordinary care to make its premises safe for him. After significant discovery, Prairie Market moved for summary judgment. The trial court concluded that the risk of harm was not foreseeable because no prior similar incidents had occurred on the premises. The trial court granted Prairie Market’s motion for summary judgment on that basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. Janis appeals.
STANDARD OF REVIEW
[¶ 6.] This Court’s standard of review of a grant or denial of a motion for summary judgment is well settled. “In reviewing a grant or a denial of summary judgment under SDCL 15 — 6—56(c), we determine whether the moving party has demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.” Dykstra v. Page Holding Co.,
[¶ 7.] “Summary judgment is proper in negligence cases if no duty exists as a matter of law.” Pierce v. City of Belle Fourche,
ANALYSIS AND DECISION
[¶ 8.] “Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury.” Stone v. Von Eye Farms,
[¶ 9.] This Court has retained the common-law classifications of trespasser, licensee, and invitee in determining the duty a landowner owes the entrants on his land. Andrushchenko v. Silchuk,
[¶ 10.] “As a general rule, the possessor of land owes an invitee or business visitor the duty of exercising reasonable or ordinary care for the benefit of the invitee’s safety, and the possessor is liable for the breach of such duty.” Mitchell v. Ankney,
[¶ 11.] Prairie Market argues that no liability can attach to a landowner unless he had knowledge of the allegedly dangerous condition on his property. Prairie Market cites Parker v. Casa Del Rey-Rapid City, Inc., wherein this Court stated: “Reasonable and ordinary care requires [a landowner] to keep [his] premises safe and warn any invitee ... of any ‘concealed, dangerous conditions ... known to [him].’ ”
[¶ 12.] Some confusion exists in South Dakota because the duty a landowner owes invitees is essentially two-fold. The general duty of reasonable or ordinary care that a landowner owes invitees “includes the duties owed to licensees: to warn of concealed, dangerous conditions known to the landowner and to use ordinary care in active operations on the property.” Mitchell,
[¶ 13.] The liability of a landowner to an invitee for failure to render the premises reasonably safe for an invitee, or failure to warn him of a dangerous condition on the premises, is predicated upon a landowner’s superior knowledge concerning the dangers of his property. Id. at 314 (quoting Norris,
[¶ 14.] In South Dakota, the duty a landowner owes invitees emulates the Restatement (Second) of Torts, which provides:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(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 invitees, 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 (Second) of Torts, § 343.
[¶ 15.] Foreseeability, rather than knowledge, however, is the touchstone of the existence of the duty of reasonable or ordinary care. Pierce,
[¶ 16.] The trial court granted Prairie Market’s motion for summary judgment on the basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. The trial court concluded that the risk of harm was not foreseeable because no prior similar incidents had occurred on the premises. Janis argues that the trial court erred by allowing the lack of prior similar incidents to be determinative of foreseeability. Janis asserts that foreseeability must be viewed in light of all the surrounding facts and circumstances. When all the facts and circumstances of this case are considered, Janis contends that the risk of harm was foreseeable so that Prairie Market had a duty to use reasonable or ordinary care to make its premises safe for its business invitees, including Janis. Prairie Market maintains that the risk of harm was not foreseeable because no prior similar incidents had occurred on its premises.
[¶ 17.] The trial court ruled as a matter of law that the risk of harm was not foreseeable. “[T]he existence of a duty is a question of law to be determined by the court.” Small I,
[¶ 18.] The present case calls this Court to examine the standard for determining foreseeability in premises liability cases. In Small I, Rocky Blair abducted, raped, and murdered Teresa Small in a McKennan Hospital parking ramp.
[¶ 19.] It is true, as Prairie Market contends, that Small I is distinguishable from the case at hand. Small I involved a landowner’s failure to protect an invitee
[¶ 20.] Moreover, this Court’s rejection of the prior similar incidents was not limited to cases involving a landowner’s failure to protect an invitee against an attack by a third party. For instance, in Pierce, an airplane owner brought a negligence action against the City of Belle Fourche after his airplane was damaged when the tie-down ropes provided by the municipal airport broke during a windstorm.
[¶ 21.] In the instant case, the trial court applied the incorrect legal standard in determining foreseeability. Foreseeability “is dependent upon all the surrounding facts and circumstances,” not merely the presence or absence of prior similar incidents. Small I,
[¶ 22.] The facts and circumstances of this case demonstrate that the risk of harm was foreseeable. It was foreseeable that a rug placed on a wet tile floor immediately inside a frequently opened door on a January day might involve an unreasonable risk of harm. Because the risk of harm was foreseeable, Prairie Market had a duty to use reasonable or ordinary care to make its premises safe for its business invitees, including Janis. See Pierce,
[¶ 23.] It must be noted that a landowner is not an insurer as to the safe condition of the premises. Mitchell,
[¶ 24.] In conclusion, the trial court’s grant of summary judgment in favor of Prairie Market was error. The trial court erred by allowing the lack of prior similar incidents to be determinative of foreseeability. Considering all the surrounding facts and circumstances, including the knowledge Prairie Market possessed, the risk of harm was foreseeable. Prairie Market therefore had a duty to use reasonable or ordinary care to make its premises safe for its business invitees, including Janis. “The question of whether [Prairie Market] met its duty to use reasonable care ... is a question of fact for a properly instructed jury, not a question of law for summary judgment.” See Pierce,
[¶ 25.] Reversed and remanded.
Notes
. In some instances, the burden to avoid the harm is on the invitee:
The possessor of land is not an insurer of the safety and welfare of an invitee, and thus an owner or occupier of premises may not be liable for injuries where the dangerous condition is known or obvious to the invitee.... In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so.
Mitchell,
Concurrence Opinion
(concurring).
[¶ 28.] I join the opinion of the Court. I write to first acknowledge that the result of today’s decision is the recognition of a duty of care in some eases involving a failure to discover a condition that was unknown to the possessor and the invitee.
[¶ 80.] We have recognized this dual inquiry by our repeated citation to the Restatement (Second) Torts § 343 (1965). See Pierce v. City of Belle Fourche,
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(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 invitees, 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.
(Emphasis added.) Accordingly, under the common law restated in subsection (a), a possessor’s duty of care to an invitee arises if: (i) the possessor knows or by the exercise of reasonable care would discover the condition, and (ii) the possessor should realize that the condition involves an unreasonable risk of harm to invitees. Id. § 343(a).
[¶ 31.] Although not discussed by the Court, the first question contemplates that a duty may arise from unknown and concealed conditions. By definition, conditions that “would” be discovered by the “exercise of reasonable care” necessarily include some unknown and concealed conditions. See id. Thus, contrary to Nash Finch’s arguments, the authorities gener
[¶ 32.] KONENKAMP, Justice, joins this special writing.
. Nash Finch focuses on language in our decisions suggesting there is no duty arising from a failure to discover or inspect. Nash Finch points out that in one case, we described the premises owner’s duty to protect invitees from "concealed, dangerous conditions known to ... [the owner].” Parker v. Casa Del Rey-Rapid City, Inc.,
. Comment b to section 343 provides:
[A]n invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.
Restatement (Second) Torts § 343 cmt. b.