Honolulu Ltd. v. Cain

224 A.2d 433, 244 Md. 590

• Court: Court of Appeals of Maryland
• Decided: December 8, 1966
• Docket: [No. 245, September Term, 1966.]
• Status: Published

Opinions

Barnes, J.,

delivered the majority opinion of the Court. Marbury, Horney and McWilliams, JJ., dissent. Dissenting opinion by Marbury, J., at page 600, infra.

On February 27, 1964, 66 year old Margaret Cain, one of the appellees and one of the plaintiffs below, was driven by her daughter-in-law Clara to the Hillendale Shopping Center in Baltimore County. The shopping center is owned by the defendant-appellant Honolulu Limited. The women arrived at Hillendale between 6:30 and 6:50 p.m. and shopped until 7:30 p.m. Returning to their automobile, the elderly Mrs. Cain slipped on a thin glaze of ice which had formed on the black macadam surface of the parking lot. This fall and the injuries arising from it are the subject of this case.

We agree with Judge Jenifer of the Circuit Court for Baltimore County that there was sufficient evidence to go to the jury on the issue of the defendant’s primary negligence, and that the plaintiff was neither guilty of contributory negligence nor had assumed the risk of her own injury as matters of law.

The evidence showed that the shopping center, constructed in 1954 at Loch Raven Boulevard and Taylor Avenue, consisted of several stores arranged in an “L” around the parking lot. One-half an inch of snow had fallen in the area on February 10, 1964, approximately nine inches of snow had fallen-on February 11; and seven inches more had fallen on February 18 and 19, eight days before the accident. It appeared that there was no measurable snow on the ground by February 27, except for mounds of plowed and shoveled snow along the sides of streets and elsewhere throughout the county. There were also mounds of snow piled along grass embankments bordering the defendant’s parking lot at its northwest end, which is farthest away from the stores. These mounds of snow had been pushed from the surface of the defendant’s parking lot by a snow removal company engaged by the defendant. Expert testimony established that the snow removal methods used at Hillendale at the time of the accident are the same as those presently used, are no different from those employed at other shopping centers in the area and conform to standard practice in the locale.

There was also evidence to show, however, that although the snow was piled on the embankments in the northwest corner of the parking area, the only drains to catch water, which would necessarily result when the snow melted, were located at the “L” formed by the stores in the southeast corner of the premises. The parking lot was gently graded so that water would run from the melting snow on the northwest corner of the parking area, across the lot, to these drains.

There was evidence that Mrs. Cain had slipped on ice formed from water which had flowed from the slowly melting piles of snow, diagonally across the parking area, toward the drains at the southeast end of the lot. The evidence indicates that the ice had formed only 15 to 20 minutes before the time of the accident.

(1) Primary negligence

The duty of an occupant of land toward his business “invitee” rested, in its inception, upon an implied representation of safety, “a holding out of the premises as suitable for the purpose for which the visitor came * * Prosser, Business Visitors and Invitees, Selected Topics of the Law of Torts 243, 261 (1953). The word “invitee” itself, conveys the idea that the place is held out to the visitor as prepared for his reception. The occupant does not, of course, become an insurer of the safety of those who accept his invitation. But when the public is led to believe that premises have been offered for its entry, the law is clear that the occupant assumes a duty of reasonable care to see that the place is safe for the purpose. The duty extends to those who are injured when they enter in response to the invitation.

It is plain to us that there was sufficient evidence to permit a jury to find that the defendant had breached its duty of reasonable care in the instant case. Indeed, there are at least two separate grounds upon which to base this finding.

The Restatement of the Law of Torts, Second, sec. 343, sets forth the standards governing the relationship of landowner and business invitee with respect to a hazardous condition. The landowner is subject to liability for harm caused by a natural or artificial condition on his land if (a) he knows or by the exercise of reasonable care could discover the condition, (b) he should expect that invitees will not discover the danger, or will fail to protect themselves against it, (c) he invites entry upon the land without (1) making the condition safe, or (2) giving a warning. These principles have been approved many times by this Court. Yaniger v. Colbert Bldg. & Const. Co., 183 Md. 285, 289, 37 A. 2d 263, 265 (1944); Evans v. Hot Shoppes, Inc., 223 Md. 235, 239, 164 A. 2d 273, 276 (1960); Morrison v. Suburban Trust Co., 213 Md. 64, 130 A. 2d 915 (1957); Glaze v. Benson, 205 Md. 26, 106 A. 2d 124 (1954).

Although in certain circumstances, the design or construction of the premises themselves may present an unreasonable danger to a business invitee, Rose v. Melody Lane of Wilshire, 39 Cal. 2d 481, 247 P. 2d 335 (1952); Magnolia Petroleum Co. v. Barnes, 198 Okla. 406, 179 P. 2d 132 (1946); DeWeese v. J. C. Penney Co., 5 Utah 2d 116, 297 P. 2d 898, 65 A.L.R. 2d 399 (1956), we do not find it necessary to pass upon the issue of whether the defendant could be held negligent in allowing the flow of water from one end of the lot to the other.

We hold, however, that knowing of this drainage pattern, and knowing that on cold February evenings water is likely to freeze, the defendant properly could be held to have acted unreasonably and negligently in permitting its snow removal service to pile snow at the end of the parking lot diagonally opposite from the drains. At least, it could have been found to have been negligent to do so without providing sufficient drains to catch the water at a point reasonably near to its source. As a result of the defendant’s action, invitees—including Mrs. Cain—were surface that might be generally dry, but which would necessubjected to an unreasonable risk, i.e., a black macadam road sarily contain patches or ribbons of ice whenever the water from melting snow became frozen.

Secondly, having knowledge of the dangerous condition it had created, the defendant could have been held to have been also negligent in not sanding or salting the wet area formed by the melting snow. The defendant’s maintenance man, Richard Claybrook, had been employed at Hillendale since it opened in 1954. He had been instructed to salt the sidewalk in front of the stores, as well as any patch of ice he discovered on the parking area, and to correct any unusual conditions he discovered on the lot. Claybrook did not salt the wet area on the day of the accident, however, and the defendant made no effort at all to prevent ice from forming when the temperature dropped that evening. On the day of the accident, the defendant sent Claybrook home at five o’clock, despite the fact that the defendant knew that water regularly flowed from the piled snow at the northwest corner of the parking lot to the drains at the southeast corner, and knew, or should have known, that on a winter night, the ribbons of water were likely to turn to ice.

Two store proprietors, who had been tenants at Hillendale since 1954, testified that they had never received any complaints about icy conditions from their customers and were unaware of any other similar accident at the shopping center. The Hillendale manager, William Weinberg, and his son Steven, the assistant manager, testified to the same effect, but both had been at Hillendale for less than two months prior to the accident. The defendant suggests that this testimony “establishes conclusively the presence of ice did not constitute an unreasonable risk of harm to business invitees.” We do not agree with this contention. We have held in Locke, Inc. v. Sonnenleiter, 208 Md. 443, 118 A. 2d 509 (1955), that evidence of prior accidents is admissible to show both knowledge of the danger or of a defect on the part of the defendant and the dangerous nature of the place or appliance involved in the accident. But in Sonnenleiter, such evidence was not conclusive of the defendant’s negligence; it was considered by the jury along with other evidence in determining whether the defendant had breached its duty of care to a business invitee. No greater weight can be accorded to evidence of silence on the part of other invitees to show the absence of prior accidents or injuries on defendants’ parking lot.¹ See e.g., Thompson v. District of Columbia (D.C. Mun. Ct. of Appeals) 182 A. 2d 360 (1962).

We cannot agree with the defendant that it had necessarily-discharged its duty of reasonable care by removing the snow in the method and manner generally used in the area. Conformance to an industry standard is, of course, often weighty evidence that the action in question is reasonable and non-negligent. It is not, however, conclusive evidence. Smith v. Bernfeld, 226 Md. 400, 174 A. 2d 53 (1961). When circumstances make the customary method “inherently dangerous or obviously improper” the duty of reasonable care requires a change from ordinary practice. Cf. Long v. Joestlein, 193 Md. 211, 216, 66 A. 2d 407, 409 (1949). By conforming to the usual method of snow removal, in this case, the jury could have found that the defendant aggravated a dangerous condition rather than alleviating one.

Nor do we accept the defendant’s contention that the dangerous condition did not exist for a sufficient length of time to permit the inference that reasonable care would have led to its discovery. Although the ice on which Mrs. Cain slipped formed only 15 or 20 minutes before the accident, the defendant had knowledge that water would flow from melting snow across the lot. It knew also that it was likely on February evenings the water was apt to freeze. In these circumstances, it is immaterial that the ice formed only a short time before the plaintiff fell on it. The jury could have found that reasonable care demanded that the wet area be salted, as a precaution, before the ice had formed. This case clearly falls within the exception noted in Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 113 A. 2d 405 (1955) and Lexington Market Authority v. Zappala, 233 Md. 444, 197 A. 2d 147 (1964). The jury could have found that the factors creating the dangerous condition existed long enough to give the defendant reasonable notice, actual or constructive, of its existence.

Finally, we cannot agree with the defendant’s argument that it was free from primary negligence because the condition was an “obvious danger * * * equally apparent to the invitee as [it was] to the invitor.” It is true, of course, that the defendant can be held liable only for maintaining a condition which is unreasonably dangerous. The ordinary person can encounter many dangers safely if he is fully aware of their presence at the time. Where a dangerous condition is obvious, the plaintiff may be charged with knowledge of it, and the knowledge of the condition may remove the element of unreasonableness from a danger. We have held, for example, that the handle of an automobile jack, protruding from the front of an automobile in a garage, is an obvious danger to one who was thoroughly familiar with the nature of the premises and the conduct of a garage business, Morrison v. Suburban Trust Co., supra; and that display cases and racks, which a seller uses to show his merchandise, are an obvious danger when in full view, Evans v. Hot Shoppes, Inc., supra.

The only evidence that Mrs. Cain had knowledge of the dangerous condition is that she “splashed her stocking” while proceeding from the parked car to the shopping area, and that the parking area generally was well-illuminated. On the other hand, there was evidence that Mrs. Cain did not recall precisely where this wet area was, and that she walked back to the car by a different route from the one she had first taken. On returning, she encountered no ice whatsoever until she fell. On these facts, we cannot say that she was charged with knowledge that patches of ice had formed, or were likely to form, on a particular part of the lot surface.

(2) Contributory negligence

We see no basis for the defendant’s suggestion that Mrs. Cain was contributorily negligent as a matter of law. She had no reason to know of the danger to which she was exposed. Moreover, the jury could find that her exposure to the danger was unintentional and completely reasonable under the circumstances. Mrs. Cain, following her daughter-in-law, returned to the car by zigzagging between other parked vehicles. This route was no doubt less brightly lit than the wider traffic lanes on the lot, but the route was a reasonable one for the plaintiff to have followed. No walkways or safe routes were provided for her. Cf. Tyler v. Martin’s Dairy, Inc., 227 Md. 189, 175 A. 2d 587 (1961). There is no rule of law charging the plaintiff with contributory negligence for failing to walk in the traffic lanes.

(3) Assumption of risk

Having held that the plaintiff could not be charged with knowledge of the risk as a matter of law, we must necessarily hold that Mrs. Cain did not assume the risk of her own injury. An essential element of this doctrine is that the plaintiff must understand the risk of harm to which he is exposed. Burke v. Williams, 244 Md. 154, 223 A. 2d 187 (1966); Velte v. Nichols, 211 Md. 353, 127 A. 2d 544 (1956).

Judgment affirmed, the appellant to pay the costs.

1 . Plaintiff made no objection to the admissibility of the testimony on the ground that the silence of other invitees was hearsay. For a comprehensive discussion of this problem see Falknor, Silence as Hearsay, 89 U. Pa. L. Rev. 192 (1940); Murchison, Silence as Hearsay, 24 N.C.L. Rev. 274 (1946); McCormick, Handbook of the Law of Evidence, § 229.