Cornwell v. Barton

422 P.2d 663, 18 Utah 2d 325, 1967 Utah LEXIS 662

• Court: Utah Supreme Court
• Decided: January 24, 1967
• Docket: 10557
• Status: Published

Opinions

TUCKETT, Justice:

The plaintiff, Mildred N. Cornwell, brought this action to seek recovery for personal injuries suffered by her. The case was submitted to the jury on a special verdict. From a finding that the defendant was not guilty of negligence the plaintiff appeals.

The defendant was the owner of an apartment building, and the plaintiff’s mother was a tenant of one of the apartments. The plaintiff was a guest in the apartment occupied by her mother. On February 5, 1964, the plaintiff was walking along one of the walkways on the defendant’s premises when she slipped upon a patch of ice which was concealed from view by a light fall of snow. As a result of the fall the plaintiff suffered serious and painful injuries.

The plaintiff claims that the defendant was guilty of negligence in failing to correct the hazardous condition or to give warning of its presence.

There was testimony in the record that at the place where the plaintiff slipped there was a depression in the walkway, and that water from rain or melting snow formed a puddle causing users to walk on the lawn rather than the walkway.

On the day of the accident the temperature was below freezing and there had been an intermittent snowfall that morning and an accumulation of an inch or more of snow on the ground at the time of the accident. On the day prior to the accident the walks were free of snow.

The defendant’s caretakers testified that the walks were dry on the morning of the accident. The caretakers were absent from the premises during the morning hours. There was a conflict in the evidence as to the time the snow began to fall, but nonetheless the walks were covered at the time of the plaintiff’s fall.

The court instructed the jury that the defendant had a duty to exercise ordinary care to maintain the common walkways in a reasonably safe condition for tenants and guests, and that he had a further duty to observe any dangerous condition known to him or by use of reasonable diligence would have become known to him, and further to remedy or remove any such dangerous condition. The foregoing is a correct statement of the law. However, in another instruction the court charged the jury as follows: ¹

If you find from a preponderance of the evidence that water or moisture had accumulated on the walkway because of melting snow or other natural condition which became frozen into ice, and that its presence was not revealed because of newly fallen snow; and, if you believe that these conditions were the result of natural seasonal weather conditions, such accumulation or presence of ice would not constitute negligence on the defendant or his agents.

The instruction above set forth and assigned as error by the plaintiff in effect tells the jury that a condition resulting from seasonal weather would not constitute negligence on the part of the defendant. The effect of this instruction is to relieve the defendant of his duty to exercise ordinary care in maintaining his premises in a reasonably safe condition in bad weather as well as good.² We hold that the giving of the instruction was erroneous and preju-dicially so.

The case is remanded with instructions to grant a new trial. Costs to appellant.

CALLISTER, J., concurs. McDONOUGH, J., heard the arguments but died before the opinion was filed.

1 . DeWeese v. J. C. Penney Co., 5 Utah 2d 116, 297 P.2d 898, 65 A.L.R.2d 399.

2 . 26 A.L.R.2d 616.