Opinion
Dec. 7, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 981
Albert Cohen, Denver, for plaintiff-appellant.
Hemminger, McKendree, Vamos & Elliott, Gary H. Hemminger, Denver, for defendant-appellee.
DUFFORD, Judge.
Plaintiff-appellant brought this action to recover damages for personal injuries he received when, during a snowstorm, he slipped and fell in a parking lot owned by defendant-appellee. The parking lot, in which the plaintiff had rented a space, was behind a rooming house also owned by the defendant and in which the plaintiff was then living. Trial was to a jury.
Upon completion of plaintiff's case, the trial court granted defendant's motion for a directed verdict. In granting the directed verdict, the trial court ruled the plaintiff had not proven actionable negligence on the part of the defendant, and also ruled that the plaintiff, as a matter of law, was precluded from recovery because he had been contributorily negligent and had assumed the risk which led to his injuries.
It is undisputed that, immediately prior to the time of his injury, the plaintiff made one trip from his room to his automobile in the parking lot by going from the rear of the rooming house, crossing an elevated patio, walking across a loose plank, stepping onto a broken cement slab, walking down a dirt incline, and then crossing the lot to his car. He made this trip without mishap. Following this, the plaintiff returned to his room to secure additional belongings and to take these to his car. On the return trip to his car, the plaintiff crossed the raised patio and then stepped directly from its edge down to a dirt incline and fell, suffering the injuries for which he brought this damages action.
It is uncontradicted that there were only three routes available as a means of egress from the rooming house to the parking lot, the two used by the plaintiff and a route which consisted of crossing the patio to a grass area following this to its edge, stepping over and onto two large blocks of broken cement and then descending to the lot. No route was available which provided a level or unimpaired passage for foot travel from the house to the parking lot.
The rationale upon which defendant seeks affirmance of the trial court's directed verdict in his favor is that the law does not require a property owner to remove snow from his premises during the course of a storm. See Bressler v. Rule Realty Co., 248 N.Y. 619, 162 N.E. 548. Additionally, defendant urges that, since it was established that the plaintiff had a safe passageway to his car which he forsook, it can be ruled as a matter of law that his own negligence contributed to his accident and that he assumed the risk of his acts, as was ruled in Fox v. Martens, 132 Colo. 208, 286 P.2d 628. However, these rules of law have no application to this case.
The evidence in this case raises not only the question as to whether plaintiff unreasonably exposed himself to risk of injury by failing to follow a 'safe' route from his room to the parking lot, but also the question as to whether the defendant was subject to liability because of his failure to use reasonable care in providing a route that could be walked with some safety. A landowner is subject to liability for the harm that may result from his failure to act as a reasonable person in providing passage to and from parking facilities which he has provided for the use of others. King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006. As is also set forth in Mitchell, where a condition exists which cannot be encountered with reasonable safety, even though the injured party was aware of it, the jury should be permitted to determine whether, under the circumstances, such awareness was enough to establish contributory negligence or assumption of risk, thereby precluding liability on the part of the landowner.
Considering the nature of the evidence in this case as to the physical condition of the routes from the rooming house to the parking lot it cannot be ruled that reasonable minds might not differ as to whether the defendant and the plaintiff met their respective standards of care. Accordingly, determination of such questions should have been made by the jury as the finder of fact. Bates v. Stagg, 157 Colo. 456, 404 P.2d 530.
Judgment is reversed, and this case is remanded for a new trial.
COYTE and PIERCE, JJ., concur.