PETERSON v. W. T. RAWLEIGH COMPANY

OPINION

OTIS, Justice.

Plaintiff, a business invitee, was awarded damages for personal injuries sustained in a fall while crossing a parking lot maintained by defendant adjacent to its place of business. Defendant appeals from an order denying its motion for judgment n. o. v. or a new trial.

At the time of the accident plaintiff was a retired machinist, 69 years of age, who was employed by defendant to distribute household goods, soaps, cosmetics, and medicines. A number of other persons past retirement age were similarly employed. On Monday, November 26, 1962, at about 11 a. m., plaintiff drove his automobile into a parking lot immediately north of defendant's building in a closely built-up commercial area in Minneapolis. He backed into the west end of a loading dock which was 50 or 60 feet in length, with a view to using the main entrance of the building on Third Street rather than walking up steps located at the east end of the dock. According to plaintiff, although Third Street was dry, there was no street parking available in the immediate vicinity of the building and had there been it would have denied him the convenience of the dock.

On the previous Friday there had been a substantial snowfall which had been compacted by cars using the lot. Plaintiff testified that there was less water and ice where he parked than in other parts of the lot. Upon opening the door of the car, he observed that the surface of the parking area was icy, and although he wore rubbers and was dressed in heavy clothing, he realized that he would have to be careful to avoid a fall. The defendant had neither ploughed nor sanded the surface. When plaintiff left his car it was his purpose to take order blanks into the building and have defendant's products loaded into the car from the dock. He had traversed 15 or 20 feet when he slipped and fell heavily to the ground, sustaining substantial injuries.

The issues are, first, whether as a matter of law defendant was free from negligence; and second, whether the question of plaintiff's contributory negligence and assumption of risk were properly matters for determination by the jury.

1. In support of its contention that it violated no duty toward the plaintiff, defendant asserts that as the possessor or owner of land it had a duty only to make its premises reasonably safe for invitees or give adequate warning to prevent harm from dangerous conditions on the premises, and that it is not liable for injuries caused by defects which were obvious to, and comprehended by, plaintiff.1 We think the better rule is that adopted by Restatement, Torts (2d) § 343 A, as follows:

Our views are well summarized in comment f as follows:

As the trial court observed in its memorandum, there are situations which are so obviously dangerous the owner has no duty to warn an invitee. This, however, is not such a case. Here a jury could find defendant should have foreseen that its elderly distributors would come to the loading dock for its products and attempt to negotiate the area between the dock and the entryway despite the slippery conditions. Under such circumstances we concur in the court's holding that the evidence supports a conclusion it was the defendant's duty either to make the area safe for pedestrian travel or take appropriate measures to prevent the lot from being accessible.3 We therefore hold it was proper to submit defendant's negligence to the jury.4

2. A more difficult question is presented by defendant's claim that plaintiff is barred from recovery because he assumed the risk of the injury he sustained and was guilty of contributory negligence. Defendant particularly relies on Syverson v. Nelson, 245 Minn. 63, 70 N.W.2d 880, and Geis v. Hodgman, 255 Minn. 1, 95 N.W.2d 311. Both cases involved injuries resulting from falls on slippery surfaces; however, in neither did we find it necessary to consider the exigencies which governed the plaintiff's decision to proceed into a dangerous situation. In this respect the instant case is distinguishable. Defendant would have us apply a rule which would bar recovery to an invitee who, knowing of the danger and appreciating the nature and extent of the risk, acquiesces in assuming it, without regard to whether or not there were compelling circumstances which prompted plaintiff's decision. We believe this is too rigid a definition of the law of assumption of risk and contributory negligence and would often lead to an unconscionably harsh result where an invitee's injury occurred while he was acting under compulsion within the scope of the owner's invitation.

In a number of Minnesota cases we have held that where the dilemma is created by defendant's tortious conduct, a plaintiff is not necessarily guilty of assuming a risk encountered under compulsion which leaves him with no reasonable alternatives.5 Thus, in Behrendt v. Ahlstrand, 264 Minn. 10, 19, 118 N.W.2d 27, 33, on which plaintiff relies, we noted that defendant had "failed to present any evidence to show * * * what safer approaches or exits had been made available to plaintiff as a business invitee."

Two cases arising in other jurisdictions are also illustrative. Foster v. A. P. Jacobs & Associates, 85 Cal.App.2d 746, 754, 193 P.2d 971, 976, held that an employee who, with full knowledge of the slippery condition of a newly waxed floor, proceeded across it to reach her place of employment was not barred from recovering for injuries she sustained from a resulting fall. The court stated that she could not be expected "to either quit her job or waive all recourse for using a floor that her duties of long standing required her to use just because her employer's landlord chose not to exercise ordinary care in maintaining the floor * * *." A similar result was reached in Morris v. A. & P. Tea Co., 384 Pa. 464, 121 A.2d 135, where, as here, plaintiff fell in an icy parking lot. There the court held (384 Pa. 469, 121 A.2d 139):

In Swenson v. Slawik, 236 Minn. 403, 410, 53 N.W.2d 107, 111, we stated that because he "had no other course to follow" in performing his job as garbage collector, the plaintiff did not necessarily assume the risk when he was injured using an elevator he knew was defective. Again, in Rudd v. Village of Bovey, 252 Minn. 151, 155, 89 N.W.2d 689, 692, essentially the same point is made:

Restatement, Torts (2d) § 496 E, comment d, indicates that with respect to the issue of voluntariness contributory negligence and assumption of risk substantially coincide.6 In the absence of a reasonable alternative, a business invitee may nevertheless be denied recovery as a matter of law when he undertakes a course of conduct which is so obviously rash and fraught with danger that a reasonably prudent man would consider it foolhardy.7 The burden is on defendant to prove the availability of a safer route of travel.8

Applying to the case at hand what we have said, the jury could find that plaintiff upon reaching his destination was obliged to elect between parking where he did, making it necessary to cross a stretch of dangerous ice in order to transact his business, or turn back emptyhanded, there being no convenient parking space available elsewhere in a place of safety. We believe it was within the province of the jury, under such circumstances, to weigh the importance of plaintiff's mission against the likelihood of his being seriously injured by proceeding further. Clearly, if plaintiff's purpose in reaching his destination was a relatively trivial one weighed against the risk of serious injury he faced by continuing, it was the duty of the jury to deny recovery. Conversely, where as here plaintiff is an invitee obliged to reach defendant's office to complete his business, if the jury determines that by the exercise of caution the chances of successfully negotiating the dangerous stretch of ice were great, a finding that plaintiff was justified in assuming the risk was supported by the evidence. It was therefore proper for the trial court to permit the verdict to stand.

Affirmed.