Wheeler v. Jones , 19 Utah 2d 392 ( 1967 )

CALLISTER, Justice

(dissenting).

The issue of defendants’ negligence must rest upon the proposition that either the glass itself presented a source of danger to those using the entranceway in a normal manner or that there were no warning devices to indicate the presence of the glass, and it was otherwise unobservable when a patron used the entrance. As to the latter, the jury found the issues in favor of the defendants. As to the first, it was error for the trial court to submit the issues of the nature of the glass to the jury because there was no evidence to establish that in the use of the entranceway, a reasonably prudent occupier would know or should know that there was danger of contact with the glass in the door.

The testimony of the expert witness, aside from the desirability of adequate warning devices, merely established the fact that it is safer, in case of some negligent act, to use safety glass in sliding doors.

It is important to remember that the defendants did not select the glass¹ and that it was in place when they took possession of the premises. Another important fact is that, in the instant case, the door involved is a sliding rather than a swinging type.

The expert, Mr. Vandenberg, testified, over objection, in regard to the custom of schools and L.D.S. churches to use safety glass in their doors,² and that F. H. A. specifications (adopted about four months prior to the accident) required safety glass to qualify for financing of new or remodeled structures. All of this testimony was for the purpose of establishing a community custom of which the defendants were or should have been aware. It was prejudicial error for the trial court to allow this testimony.

In Prosser on Torts, 3d Ed., § 33, it is stated at p. 169:

* * * Custom also bears upon what others will expect the actor to do, and what, therefore, reasonable care may require him to do; upon the feasibility of taking precautions, the difficulty of change, and the actor’s opportunity to learn the risks and what is called for to meet them.

At p. 171:

* * * A custom to be relevant must be reasonably brought home to the actor’s locality, and must be so general, or so well known, that the actor may be charged with knowledge of it or with negligent ignorance * * *

There was no foundation laid to establish that the schools and churches were similarly situated to defendants, and, therefore their conduct had no bearing on the issue of what was ordinary and reasonable care under the circumstances.

In essence, the witness testified that in the replacement of glass in schools in the area, it was customary to put safety glass in doors young people use. He further stated that most churches, and particularly L.D.S. churches, require safety glass in the doors. The testimony adduced indicated that tempered glass was in common use in swinging doors but not in sliding doors at the time the building, occupied by defendants, was constructed. Thus, a distinction in the two types of doors was established; yet, there was no evidence proffered to indicate that the type of door used by churches and schools was comparable to the one in defendants’ establishment.

The trial judge erred when he advised the jury that they could consider F. H. A. specifications as standards of the community. It is not unreasonable to infer that the jury interpreted this statement as meaning that this was the standard of care to which the defendants must conform. Aside from the admissibility of standards of safe construction, they could constitute merely evidence of the standard of care, for the conduct of others is not to be taken as fixing a legal standard for the conduct required by law.³

The relevancy and materiality of the F. H. A. specifications were not established. They had been in effect only since April of 1963, and Brent Wheeler was injured in August of the same year. The specifications did not apply to existing structures but only to those currently being constructed or remodeled by F. H. A. financing. Furthermore, the specifications were not safety standards per se, but were construction standards for financing purposes. Finally, many courts have excluded evidence of codes or standards of safe construction issued by governmental agencies; since the codes do not have the force of law, their violation cannot be deemed evidence of negligence; and as mere evidence of standards of due care without force of law, they do not represent accepted scientific truth and constitute no more than unsworn opinions not subject to cross-examination.⁴ In the instant case, the F. H. A. specifications, rather than being the standard of the community, appear to be an attempt to alter the present conduct by the promulgation of new rules, since Mr. Vandenberg testified that approximately 90 to 95% of all the glass installed in sliding doors was the type used in defendants’ establishment.

There was no evidence that a reasonably prudent operator of a business such as this, who moved into existing premises, would be put on notice or would find on reasonable inspection ⁵ that this condition, insofar as the type or thickness of glass was concerned, was defective or unsafe. Furthermore, there was no evidence of prior warning or any indication which might have apprised defendants of the risk involved in maintaining such a nuisance.⁶

For the foregoing reasons, it was error for the trial judge to submit to the jury the special interrogatory as to whether defendants were negligent in maintaining a glass of the thickness or type in the sliding door insufficient to withstand ordinary bumping without breaking or which would stay intact after breaking.

■ The issue of contributory negligence as presented in this case merits further examination than that contained in the main opinion. The question is whether the injured boy’s testimony is susceptible of an interpretation that he exercised that degree of care that is usually exercised by persons of similar age, experience, and intelligence under the circumstances, which is the measure of his duty.⁷

Brent testified that he had been on the premises on at least three prior occasions. When he first entered the premises on the day of the accident he observed that the sliding glass door was open. When he left the pool and re-entered the building to determine the time, he observed that the door had been “shut part way.” He stated that he reset his watch, turned around and looked through the door and walked, and that he looked through it again and hit the glass. Specifically, he stated that the first time he looked, he saw “Just the bar with two sides is all * * * I didn’t see anything on either side of it.” He responded that the bar he observed was the west edge of the sliding door. (When the door is opened it slides in an easterly direction.) When Brent first looked at the door, he testified that he was about ten feet from it and that he looked at his watch and started walking; he then looked again at four feet away and started walking. At the distance of four feet he observed “Just a bar down the mid-die. * * * It looked like it had two openings.”

This case has a strong similarity to Lopez v. American National Bank of Cheyenne ⁸ where the plaintiff admitted that he had observed the glass panels, one on each side of the door, when he had entered the hank. The court stated:

* * * Again the use of these facilities by the plaintiff only a few minutes before his accident gave the plaintiff ample notice and “awareness” of the condition of the entire entranceway. * * *

Brent’s testimony indicates that it was his negligence which caused the accident. Not only had he been on the premises on three prior occasions, but also his use and observation of the condition in the brief interim between the time he passed through the entry to ascertain the time and observed the exact position of the door and the time of the accident gave him notice and awareness of the condition of the en-tranceway.

In the instant case, Brent was charged with the duty of seeing and avoiding the door, since there was no evidence from which it could be inferred that there was something to preoccupy his mind or to distract his attention from his objective of returning to the pool.

In Whitman v. W. T. Grant Co.⁹ this court stated:

In order to justify holding that a jury question as to negligence exists, where injury has resulted from an observable hazard, it is essential that there be something which could be regarded as tending to distract the plaintiff’s attention or to prevent him from seeing the danger, thus providing some reasonable basis for a finding that even though he exercised due care, he could be excused from seeing and avoiding it. * * *

The instant case clearly falls within the ambit of the Whitman case and, therefore, Brent’s inattentiveness and failure to heed what he saw, constitutes contributory negligence as a matter of law and the lower court should have granted defendants’ motion for a directed verdict.

HENRIOD, J., concurs in the dissenting opinion of CALLISTER, J.

1 . Watts v. Bacon & Van Buskirk Glass Co., 20 Ill.App.2d 164, 155 N.E.2d 333, 337 (1959).

2 . Contrary to the statement in the majority opinion, he did not refer to them as being sliding doors.

3 . 2 Wigmore on Evidence, 3d Ed., § 461, p. 489.

4 . 75 A.L.R.2d, Anno.: Evidence — Safety Codes, § 3(a), pp. 781-782.

5 . The fact that Vandenberg testified that tempered glass has “two little nipple marks near the edge” is of no significance.

6 . See Restatement of the Law of Torts 2d, § 343, which is set forth in the main opinion. In the Appendix, § 343, p. 192, The Reporter’s" Notes state:

“Clause (a) : The plaintiff invitee has the burden of proving that the defendant possessor either knew or had reason to know of the condition, or that by the exercise of reasonable care would have discovered it * * * ”

7 . Mann v. Fairbourne, 12 Utah 2d 342, 346, 366 P.2d 603 (1961).

8 . Wyo., 389 P.2d 21, 22 (1964).

9 . 16 Utah 2d 81, 84, 395 P.2d 918, 920 (1964).