Opinion
Argued November 9, 1954.
January 3, 1955.
Negligence — Possessor of land — Condition — Business visitor — Restatement, Torts.
1. A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility. [192-6]
2. Restatement, Torts, § 343, cited. [194]
Mr. Justice MUSMANNO filed a dissenting opinion.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeals, Nos. 220 and 221, Jan. T., 1954, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1953, No. 1676, in case of Mary S. Hon et vir v. Percy A. Brown and Company. Judgment affirmed.
Trespass for personal injuries.
The opinion, by APONICK, J., of the court below, is as follows:
This is on a rule to show cause why a compulsory nonsuit should not be lifted.
Defendant operates a grocery store, a luncheonette, and a cafeteria, all in one building on East Northampton Street in Wilkes-Barre. The store or market occupies the left portion of the building as one faces it from the street; the cafeteria is on the other side of the premises while the luncheonette is in between. The market is self-service and entrance from the street is by two glass doors that open inwardly. To the immediate left of these "In" doors are two "Out" doors which are also of glass and open outwardly. There are rest rooms located on the second floor, reached by a stairway located in the luncheonette.
On Saturday morning, October 27, 1951, plaintiffs, husband and wife, did their shopping in defendant's market, where they had dealt for some twenty years. Having paid for their purchases at one of the cash registers, they were about to leave the store by one of the "Out" doors when Mrs. Hon decided to go to the rest room. The only passage from the street side of the checker's booth to the rest room was by an aisle formed by the four doors on the one side and stacked carts or carriages, used by shoppers, on the other side. The distance between the carriages and the doors was estimated to be some four feet, though the testimony was that the carriages were closer to the doors that morning than they usually were. Telling her husband, and his step-father who accompanied them, to wait for her at the "Out" doors, Mrs. Hon gave Mr. Hon her packages and then started across the front of the store to the rest room. She passed the two "Out" doors and the first "In" door. But as she passed the second "In" door, someone coming into the store opened it and struck her on the right side, knocking her against the carts and thus causing her to fall. Mrs. Hon was then sixty-eight years old and the fall caused her serious injuries.
It was agreed that the width of the "In" doors was thirty inches. They opened twenty-eight inches into the store, that is to say, the arc they made had a radius of twenty-eight inches. Thus if the passageway was four feet and the doors took up twenty-eight inches when open, there were then only twenty inches between the carts and the edge of the open door. It is plaintiffs' theory that defendant should have provided a wider aisle.
At the close of plaintiffs' case on the negligence, the trial judge granted defendant's motion for a compulsory nonsuit; the court was of the opinion that there was no case against defendant.
Plaintiffs rely on the well established rule that the operator of a store has a duty to maintain his "premises in a reasonably safe condition for the contemplated uses thereof, and, in the absence of warning to the contrary, a business visitor is entitled to rely on the assumption that such duty has been performed." Subasky v. The Great Atlantic Pacific Tea Company, 161 Pa. Super. 90 at 92.
As the Restatement, Torts, § 343 puts it: "A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility."
Whether Mrs. Hon, having completed her shopping still retained her status as a business invitee while enroute to the rest room, or whether she was then a gratuitous licensee makes little difference under the peculiar facts in the case.
The position of the carts in relation to the "In" doors was obvious and we can assume that their position was known to the defendant corporation. But the position of the carts and the fact that the entrance opened inwardly were just as readily apparent to the wife plaintiff and there was no reason to believe that she would not discover or realize the risk involved in the condition which she now says was dangerous. If the defendant should have realized that the condition involved an unreasonable risk to one in Mrs. Hon's position, i.e., someone walking across the front of the store from the "Out" doors to the rest rooms, certainly she should likewise have realized the risk involved to herself.
But plaintiff had been shopping at defendant's store for some twenty years. She should have known that the entrance doors opened inwardly. She could have seen, had she looked, people coming into the store via these inwardly swinging doors. But she did not say she saw anyone nor did she say she was watching for anyone. Now it is true, as said in Bloomer v. Snellenburg, 221 Pa. 25 at 27, that: "Customers are invited into a store, and to walk along the aisles where goods are displayed upon every hand for the very purpose of catching the eye and attracting the attention of those who use the passageways."
But once the shopping is completed, the invitee must thereafter use ordinary care and watch where she is going. Bilger v. Great Atlantic Pacific Tea Company, 316 Pa. 540. The out of state cases cited by plaintiffs are not in point for there the persons injured were shopping. Nor is Broyles v. Speer, 160 Pa. Super. 405, also cited by plaintiffs, any authority; there the plaintiff had no reason to anticipate that there would be a door swinging outwardly onto the sidewalk on which she was walking.
We are satisfied (1) that plaintiffs failed to make out a prima facie case of negligence against defendant; and (2) that if there was any negligence on defendant's part, female plaintiff convicted herself of contributory negligence.
Accordingly, now, this 20th day of April, 1954, at 10 a.m., the rule to show cause why the compulsory nonsuit should not be lifted is discharged.
Plaintiffs appealed.
Albert H. Aston, with him Thomas C. Moore and Thomas E. Brislin, for appellants.
Robert J. Doran, with him George B. Ritchie and Reynolds, Reynolds Doran, for appellee.
The judgment of the court below refusing to remove a compulsory nonsuit is affirmed on the opinion of Judge APONICK.
On October 27, 1951, Mrs. Mary S. Hon, 68 years of age, entered the business establishment of the defendant which consisted of a serve-yourself market, a restaurant and a cafeteria. She took hold of one of the basket go-carts (which are about 3 1/2 feet high), circulated through the aisles of attractive commodities, filled her basket with meats and groceries, and paid for her purchases at the cashier's desk. She left her packages with her husband and step-father who were with her, and then started for the rest room an the second floor. In order to reach the stairway conducting to the rest room, she had to pass through an aisle which was formed, on one side, by the four doors connecting with the street and, on the other side, by a row of basket go-carts five layers thick. The width of this aisle was 4 feet. Two of the doors swung outwardly and they were known as the "Out" doors. Two swung inwardly and they were known as the "In" doors. On her way to the rest room, Mrs. Hon passed by the "Out" doors and the "In" doors. But as she was leaving behind her the last "In" door, an incoming customer pushed it open, striking Mrs. Hon on the right leg and thigh with such force that she was thrown to the floor and as a consequence suffered serious injuries.
After these facts were related in Court, the Trial Judge entered a compulsory nonsuit against her which the Court en banc refused later to lift. An appeal to this Court followed. The Majority of this Court has accepted the meager Opinion of the Court below as its own so that in commenting on it I will refer to it as the Majority Opinion.
The Majority states that the plaintiff failed to make out a prima facie case of negligence but adds also that if there was any negligence on the part of the defendant, the "female plaintiff convicted herself of contributory negligence."
It seems to me that the negligence of the defendant store is obvious, palpable and almost indisputable. We have noted that the width of the aisle was 4 feet, that is, 48 inches. The "In" doors were 32" wide and, when opening into the building, they penetrated into the store a distance of 28 inches. Thus when either of the "In" doors opened to the full extent of its hinged arc, the width of the aisle was reduced 28 inches, thus leaving only 20 inches for the passage. In view of the fact that most adults are 20 inches or more wide, the mathematical conclusion is reached that the store owners allowed a condition to exist which meant that each time the opening of an "In" door coincided with the passing of a customer in the aisle, the customer would either be struck by the door or be caught in a tight squeeze.
The Majority argues, however, that if the store owners knew of this tight squeeze the plaintiff had to know it also because she had been a customer in that store for some 20 years. I fail to see how this fact deprives her of the right not to be knocked down. Store owners who urge people into their business houses so that they may be sold goods at a profit to the invitors are required by the law to exercise due care in saving the invitees from unnecessary harm. Although Mrs. Hon had entered the store many times, the record does not show that the aisle was always as narrow as it was on the day of the accident. It may be that on that particular day the basket go-carts were crowded closer to the doors than they usually were. That the width of the aisle was not always the same is evident from the fact that the plaintiff, looking at the photograph introduced at the trial said that the baskets in that picture were not in the same position they were on the day of the mishap.
The fact that the plaintiff was on her way to the rest room did not make the passageway any less a lane of travel. It was through this aisle also that customers reached the cafeteria.
The Majority, however, seeks to make a distinction between a customer who is still shopping and one who has completed his shopping, thus suggesting that the store-owner owes a greater degree of care to persons who are still spending money than it does to those who have already emptied their pockets into the coffers of the establishment. I do not believe that the law is so harsh or so mercenarily minded. A customer is a customer until he leaves the store, for as long as he remains under the roof of the store there is always the possibility that he will spend another five or ten-dollar bill for some article which has been ingeniously displayed to catch his eye at the last moment. Be that as it may, only an arbitrary judgment could say that Mrs. Hon had already left the store and that the store-owner was not required under the law to continue to maintain the premises in a reasonably safe condition for the purpose for which Mrs. Hon was invited to visit the store.
Jerominski v. Fowler, 372 Pa. 291.
The store-owners knew that the particular "In" door involved here, when opened (and it opened hundreds of times a day), became a wall which narrowed the width of the aisle 28 inches. In Nettis v. Gen. Tire Co., 317 Pa. 204, 209, this Court said: "All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended."
Can it be said as a matter of law that the store-owners discharged their obligation of maintaining their premises in a reasonably safe condition when they provided a space of only 20 inches through which customers had to pass? All that the defendant owners would have had to do to make the passageway safe was to push the stack of basket go-carts back far enough to widen the passageway. It was definitely a question for the jury to determine whether by allowing this compressing Magellan Strait in the store, the proprietors discharged the duty imposed upon them by the law for the benefit of their business invitees.
Section 343 of the Restatement of Torts sets forth the liability of land owners to business invitees. Comment d of that Section declares: "A business visitor is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein."
There were no signs displayed here warning customers to beware of the invading "In" door. A door that swings into the direct line of movement of one lawfully on the premises cannot be other than a defect or risk which the proprietor is either required to readjust or to post signs warning business invitees of the existent danger.
The case of Bilger v. Great Atlantic Pacific Tea Company, 316 Pa. 540, to which the Majority refers, is completely outside the sphere of pertinency insofar as the principle of law involved in this case is concerned. There, the plaintiff was injured after she had left the store. She fell in an outer vestibule which, in the words of this Court, was "outside the doors of the store, was on a level with the sidewalk, and in a sense constituted an extension of it." It is exceedingly important to note, however, that in that very case this Court said that the degree of care required on the part of a customer is a question for the jury when the accident occurs in the "aisles and interior passageways of the stores." No matter how the evidence is read in the case at bar, the conclusion is absolutely inescapable that the accident occurred in an interior passageway of the defendants' store.
The Majority convicts Mrs. Hon of contributory negligence on the supposition that she should have known that the doors opened inwardly and that the doors being made of glass she should have seen people coming in to the store. In the first place, it was not feasible, practicable or necessary for her to study doors in no way associated with her journey. She was moving past the doors, not through them. Her path of travel required her to look forward, not to the side. Had she looked sidewise while proceeding ahead and had stumbled over some obstacle on the floor in front of her, it would undoubtedly have been argued in behalf of the defendant store that her negligence lay in not looking ahead. The Majority says that the duty of Mrs. Hon, after completing her shopping, was to "watch where she was going." That is exactly what she was doing. She was watching ahead, and that is where she was going!
The Majority also overlooks this extremely vital fact: the plaintiff had actually passed the last door when she was struck, so that any studying of the space outside the store to see who might be entering was utterly supererogatory. But even if we assume that Mrs. Hon should have looked through the doors when she passed them, certainly it cannot with any show of reason or justice be demanded that she had to keep her head over her shoulder in order to avoid being struck from the rear. Until store patrons are equipped with rear mirrors they should not be charged with contributory negligence for what happens in their wake.
I dissent.