Ollar v. Spakes , 269 Ark. 488 ( 1980 )

John A. Fogleman, Chief Justice,

dissenting. I could readily agree with the majority if this were not a case involving summary judgment. I submit that the trial judge and the majority have used the summary judgment procedure to predict the outcome of the case (probably correctly) rather than to determine whether the movant has demonstrated that there are no genuine issues of fact. The question, whether we would affirm ajudgment based upon the record before the trial court is wholly beside the point. A summary judgment is an extreme remedy which should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weathers v. City of Springdale, 239 Ark. 535, 390 S.W. 2d 125. Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 646. If there is any doubt whatever as to the existence of issues of fact, summary judgment should be denied. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W. 2d 89. If inconsistent hypotheses may be drawn and reasonable persons might differ, or reach different conclusions, summary judgment should be denied. Braswell v. Gehl, 263 Ark. 706, 567 S.W. 2d 113; Betnar v. Rose, 259 Ark. 820, 536 S.W. 2d 719.

The duty of the owner or occupier to a business invitee is not necessarily limited by the owner’s property lines. That duty with regard to the unsafe condition of access to the property has been well stated by the textwriter in 65 CJS § 63 (51), at p. 754 et seq, viz:

Any invitation to enter premises carries with it the duty toward the persons invited to provide reasonably safe means of ingress and egress, and where the invitation is to a particular part of the premises there is a duty to maintain the approaches thereto in a reasonably safe condition for use. There is also a duty to provide reasonably safe passages to and from such places as are included within the scope of the invitation.

The invitee, on his part, in order to retain his status as such, is bound to use the ordinary and customary means of ingress and egress, for an implied invitation will not extend beyond the necessary lines of travel. So, where there is provided a safe entrance to the portion of the premises to which persons are invited, the owner or occupant is not liable for injury due to an unsafe condition of another means of entry which is not provided for or usually used for obtaining access to such place.

An invitee does not lose his status by employing a means of ingress and egress which by allurement or inducement, express or implied, he has been led to employ. A business invitation includes an invitation to use such parts of the premises as the visitor reasonably believes are held upon to him as a means of access to, or egress from, the place where business is to be transacted. The duty to maintain premises in a reasonably safe condition includes and extends to approaches to the premises which are open to invitees in connection with their business on the premises, and which approaches are so located and constituted as to represent an invittion to visit the place of business and use such means of approach. Where an invitee or business visitor has been intentionally or negligently misled into a reasonable belief that a particular passageway or door is an appropriate means of ingress or egress, he is entitled to the protection due an invitee or egress, he is entitled to the protection due an invitee or business visitor while using such passageway or door. The duty of keeping premises in a safe condition extends to ways of ingress of egress which, although not the proper ways, the owner of the premises permits invitees or business visitors to use without taking precautions to prevent such use, ***

The duty to keep the means of ingress, egress, and passage safe is limited to the exercise or ordinary care to have such places in a reasonably safe condition or to warn the invitee of any dangerous existing condition not obvious to an invitee in the exercise of ordinary care.

In the application of that rule, it has been held that the duty of an occupier of premises extends beyond the premises to the entrances into and exits from such premises and it is his duty to warn his customers of hidden hazards upon, around or beyond his premises, if he would reasonably expect use of an adjacent area by his customers in connection with the invitation. Joseph v. Jet Air Frieght Corp., 479 S.W. 2d 325 (Tex. Civ. App., 1972), writ ref'd. n.r.e. To incur liability to a business invitee, it is not necessary that the owner or occupier own or control the property on which the hazard to safe ingress or egress exists, or that the owner or occupier create the hazard, if the hazard created a foreseeable risk of harm to his business invitees and the owner or occupier knew of its presence and should have taken reasonable precautions to eliminate it (by such measures as posting warnings, or barriers or providing adequate illumination). Rockefeller v. Standard Oil Co., 11 Wash. App. 520, 523 P. 2d 1207 (1974).

In viewing the testimony in the light most favorable to appellants, we should not overlook the fact that it was dark when Mrs. Ollar left the automobile and started toward George’s Place, and that she had taken only two or three steps when she stumped her toe on the “raggedy” end of a crosstie, stumbled and fell. Apparently the crosstie on which she stumbled lay at an angle to the line of ties (how slightly, I do not know.) Mrs. Ollar said that she did not see the crossties on the night she fell because it was too dark. There are no lights on the lot on which the Ollars parked and the only lights on the premises of George’s Place are those provided by two signs. Mrs. Ollar testified that there was no street light. She said she fell on the lot on which George’s Place was located but did not know for sure where the lines were. George Spakes testified that he did not have good relations with Mrs. Herrod because she did not want anyone parking on her lot. Mrs. Herrod testified that the ties were originally placed on the property line, but that, because the trucks of George’s customers jarred them loose and pushed them one way or the other, they might have been on either the Spakes lot or hers at the time Mrs. Ollar fell.

When I view the evidence submitted in this case, appellees’ entitlement to summary judgment is not a matter beyond doubt. It is certainly reasonable to infer that appellees knew that their customers parked on the beauty parlor lot when the lot at George’s Place was full, and that it was at least likely that these customers would enter appellees’ premises by the most direct route, i.e., by crossing the line of crossties. The Ollars may have been justified in the belief that this means of ingress to George’s Place was open to them. It would be reasonable to infer that they were permitted to do so by appellees. Under these circumstances, appellees had the duty to see that the access to their property was reasonably safe or to. warn their customers not to use it or that ■ there was a hazard in crossing the crossties. That appellees knew that the ties were not anchored and that they were sometimes moved from the position in which they had been placed by trucks driven by customers of George’s Place would not be an unreasonable inference. For these reasons, I conclude that summary judgment was not proper on the record before us. I do not mean to say that when the case is fully developed that there will necessarily be a question for a jury. I only say that appellees failed to negate potential issues for a jury. I should add that the question of assumption of the risk is, along with the negligence of Mrs. Spakes, a matter of comparative fault. Ark. Stat. Ann. § 27-1763 et seq (Repl. 1979). Such questions usually cannot be resolved on motion for summary judgment. They certainly cannot in this case.