Gast, Inc. v. Kitchner

Finan, J., delivered the opinion of the Court. This is an appeal from judgments on jury’s verdict awarding damages to plaintiffs for injuries received in a fall on defendant’s restaurant premises. It is also a small contribution to the already heavy accumulation of Maryland law on “Snow and Ice.” 1 Appellant (defendant) is the proprietor of a restaurant located at the corner of Belle Grove and Arundel Roads in Anne Arundel County. The building is surrounded by a paved asphalt parking area, and the land declines somewhat from the front to the back.

In 1964, appellant constructed a “dairy store” at the rear of the building, with a separate entrance so that any ⁶⁸⁰ patron arriving at the front of the restaurant would have to walk around the side of the building to the dairy store entrance. Although the dairy store at one time remained open until 11:00 p.m., the later practice had been to close at 10:00 p.m., while the restaurant continued to serve until midnight. However, the evidence shows that on the evening of the accident, January 11, 1965, the neon sign advertising the dairy store remained on until well past the accident which occurred about 10:15 p.m. It had snowed the day prior to the accident, so for the benefit of its dairy store patrons, appellant shoveled a path through the snow alongside of its building.

Midway down the path a downspout hung from the wall, and ended approximately two feet above the asphalt. That afternoon the temperature rose to about 40 degrees, but at the time of the accident it was below freezing. The appellee, Mrs. Kitchner, lived in the neighborhood of Gast’s. From the record, it appears that Mrs. Kitchner had been quite upset over the very sudden death of her daughter on January 6, and the subsequent responsibility for the five surviving grandchildren.

In fact, at the time of the accident, she was under her physician’s instructions to avoid alcoholic beverages. On January 11, Mrs. Kitchner, her husband and several members of their family were together at her home where beer was served. Although the record indicates that Mrs. Kitchner had been drinking (the attending physician at the hospital testified, and a nurses’ report indicated, that there was an odor of alcohol on her breath), there was probative evidence to the contrary. Mrs. Kitchner was not wearing galoshes or rubbers, yet she safely traversed the one and one-half to two blocks from her home to Gast’s wearing rubber-soled loafers.

She reached the restaurant and proceeded to walk on the shoveled path as it slanted down toward the dairy store. She testified that the path, which, was illuminated by floodlights, appeared a bit slippery, so she walked closer to the building. As she approached the area of the downspout, she slipped, fell and received an extensive injury, later diagnosed as a fractured left leg. Appellant raises three basic issues on appeal in support of ⁶⁸¹ its contention that the motions for directed verdict and for judgment n.o.v. should have been granted.

The first issue involves the lack of evidence of primary negligence. Appellant claims that the plaintiff never actually saw the ice, but merely con-chided that she fell on the ice because “there must have been ice” where she fell. Furthermore, if ice actually did form, the freezing could have only occurred just prior to the accident, and therefore the defendant cannot be held to have had constructive knowledge of the condition. The contention is also made that because the dairy store was actually closed, appellee could not stand in the position of a business invitee and appellant was not bound to the higher duty of making the premises safe for business guests.

The appellant, in its second issue, raises the defense of contributory negligence, arguing that if ice was present and Mrs. Kitchner was looking, she would have seen it, and if she didn’t see it, then appellant cannot be held to a knowledge of its existence. Appellant’s third issue on appeal challenges Judge Grady’s charge to the jury, which was for the most part patterned on Restatement (Second) of Torts § 343 (1965). This Court, after reviewing the record and the appellant’s arguments, is of the opinion that, as in Honolulu Ltd. v. Cain, 244 Md. 590 , 224 A. 2d 433 (1966), the jury could properly find that the property owner, knowing of the drainage pattern directly affecting the pathway, permitted a dangerous condition to exist and therefore failed to use the degree of care incumbent upon one who opens his premises to the general public. Therefore this Court, for reasons hereinafter set forth, affirms the verdict and judgment of the court below.

PRIMARY NEGLIGENCE Prefatory to discussing the issue of primary negligence, it is necessary to put to rest the question of the status of the appellee on the premises with relation to the owner-appellant. The appellant contends that the appellee was not a business invitee, but rather a bare licensee to whom something less than the duty to use reasonable care was applicable. The rationale behind this contention is that the dairy store closed at 10:00 p.m., the accident occurred sometime around 10:15 p.m. and ⁶⁸² that the appellant’s invitation to business patrons was limited to business hours. The evidence shows that the appellant’s neon sign advertising the dairy store, with a large arrow pointing to its location in the rear, was still illuminated at the time of the accident, and the restaurant part of the appellant’s operation was still open.

The evidence further shows that the only purpose for the appellee’s presence on the premises was to complete her mission of making a purchase. We believe the appellee to have been a business invitee in the full sense of the meaning of the term. See Hutzler Bros. Co. v. Taylor, 247 Md. 228, 236 , 230 A. 2d 663, 668 (1967); Peregoy v. Western Marylmd R. R. Co., 202 Md. 203 , 95 A. 2d 867 (1953).

The duty that the occupant of land owes to a business invitee has frequently been enunciated by this Court. A case containing one of its more recent expressions on the subject is Honolulu Ltd. v. Cain, 244 Md. 590 , 224 A. 2d 433 (1966), wherein Judge Barnes, speaking for a majority of the Court, said: “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 the 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.” Id. at 595 . The evidence reveals that when providing an access passageway through the snow for the use of its patrons, the appellant selected a route which ran along side its building directly under three downspouts whose sole function was to drain water from the roof onto the ground. It was but a step or two from the second downspout that the appellee slipped and fell. The appellant contends that there was no evidence of ice on the pathway, at or near the spot, where the appellee alleges that she slipped and fell.

The question of the existence or non-existence of ice is of course most material, because if there was. ⁶⁸³ no ice on the pathway where the appellee slipped and fell, there can be no valid finding of primary negligence on the part of the appellant. In support of its contention the appellant argued that the appellee and her witness, Mrs. Duncan, both assumed that because the appellee had fallen there must have been ice on the pathway, but that neither of them actually saw any ice. A recitation of testimony is required to put this matter in its proper perspective. The following is an excerpt from the cross-examination of the appellee.

Q. And you noticed that there was a path that looked like it was clean, is that right? A. Yes. Q. And as you or just before you slipped, you were looking down at the surface of the parking area on which you were walking, is that right? A. Yes, sir.

Q. And before you took the step at which time you fell, you looked down and you didn’t see anything, is that right? A. No, sir. It looked like it was perfectly safe to walk. Q. You took a look at it and it looked perfectly safe to you?

A. Yes, sir. Q. And you walked and you stepped on it and you fell? A. Yes, sir. Q. You didn’t see any ice, did you?

A. No, sir, I didn’t see any ice until after I slipped. Q. And after you slipped, the ice you saw was to the Arundel Road side of that path, isn’t that right? A. No, sir. The ice was underneath of where I was laying.

Q. Well, you fell to your right, did you not? A. My left side was against the building. I couldn’t say whether I fell right or left. All I know, I slipped and went down on my back.

Q. I see. And what did you say you noticed then? A. When I went to get up, I noticed that it was wet and it was a thin piece of ice, what you call a layer ⁶⁸⁴ of ice there, and when I tried to get up I raised up on one arm and I found out that I couldn’t move because my leg was hurt and twisted and I screamed for help. Q. Well, now, when your deposition was taken, Mrs. Kitchner, at page thirty-two, I said: Question.

Well, if you didn’t see it — meaning the ice — how do you know it was there? Answer. Well, what else could I have fell on ? What else could have made me fall ?

Question. So you are reasoning from the fact that you fell that you slipped on the ice, is that right? Answer. That could have been the only thing there that I could have fell on.

A. right. Q. Now, isn’t it fair to say, on the basis of the testimony, that even after you fell, you didn’t observe ice on this black path, but you just assumed that because you fell there was ice