Lowell Bray, The Plaintiff, filed an appeal in the Douglas County District Court asking for damages for injuries protracted when he skidded on ice on defendant’s grounds. In its adjusted answer, the defendant, Kate Inc on behalf of Stockade Restaurant & Lounge, denied the petition’s allegations and alleged that plaintiff was contributory negligent in failing to keep a proper lookout and in walking in such a manner that he lost his balance. It additionally claimed that plaintiff willingly presumed the risk of whatever hazardous condition existed.
Evidence presented by the plaintiff at trial illustrated that the Millard area in Douglas County, Nebraska, obtained roughly 2.2 inches of snow during the December 9, 1985, 24-hour period. The snow had build up throughout the day on December 9, with the snowfall ending sometime between midnight and 3 a.m. on December 10. The temperature on those 2 days was approximately 15 to 21 degrees. He worked in an office situated on the west side of Millard Avenue in Millard. On December 10, Bray left his office to have lunch across the street at the Stockade Restaurant, owned by defendant. The restaurant is situated on the corner of 134th Street and Millard Avenue. To get to the restaurant, Bray crossed Millard Avenue; walked along the restaurant’s west sidewalk, which runs parallel to Millard Avenue; turned the corner and walked along the restaurant’s south sidewalk, which runs parallel to 134th Street; and ultimately reached an entrance located on the south side. The plaintiff, having dined there about three times weekly, testified this was his usual route. He testified that although the sidewalks were covered with several inches of snow, he walked with little difficulty across the sidewalks, using a snow packed path. The plaintiff became aware of two women, upon nearing the door, who were also moving toward the door, coming from a rear parking lot. Wanting to open the door for the women, he used a little extra effort to reach the door first, upon which he slipped and fell, injuring his shoulder. He testified that he knew he slipped on ice because he had felt the ice when he slipped, but that he did not know there was ice near the door prior to the fall. The defendant then presented evidence tending to show that its management personnel had a snow and ice removal procedure, but that they had no notice or knowledge that ice was near the front door. Plaintiff offered no evidence that others actually saw the ice near the door that day (Miller).
From the evidence it is showed that, as a matter of law, the defendant owed no duty to plaintiff and that the plaintiff was contributory negligent. In addition, the plaintiff presumed the risk of any injury. In considering the evidence for the purpose of a motion for directed verdict, the party against whom a motion is made is entitled to have the benefit of every inference which can be reasonably drawn from the evidence. If there is any evidence in favour of the party against whom the motion is made, the case may not be decided as a matter of law.
In short, if we adopt a possessor’s duty of care, In view of this court’s decisions in Tichenor v. Lohaus, 212 Neb. 218, 322 N.W.2d 629 (1982), Corbin v. Mann’s Int’l Meat Specialties, 214 Neb. 222, 333 N.W.2d 668 (1983), and Carnes v. Weesner, [229 Neb. 641, 428 N.W.2d 493 (1988) ], the correct statement of Nebraska law is: A possessor of land is subject to liability for injury caused to a business invitee by a condition on the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to a business invitee; (3) the defendant should have expected that a business invitee such as the plaintiff, either (a) would not discover or realize the danger, or (b) would fail to protect himself or herself against the danger; (4) the defendant failed to use reasonable care to protect the plaintiff invitee against the danger; and (5) the condition was a proximate cause of damage to the plaintiff.
However, In Burns v. Veterans of Foreign Wars, 438 NW 2d 485 1989 , a plaintiff is contributory negligent if (1) the plaintiff fails to protect himself or herself from injury; (2) the plaintiff’s conduct concurs and cooperates with the defendant’s actionable negligence; and (3) the plaintiff’s conduct contributes to the plaintiff’s injuries as a proximate cause. In addition, In Vanek v. Prohaska, 233 Neb. 848, 448 N.W.2d 573 (1989), it is stated that the defence of assumption of risk presupposes is that the injured party had some actual knowledge of the danger, that he understood and appreciated the risk there from, and that he voluntarily exposed himself to that risk.
As to the existence of a duty to the invitee and the existence of the invitee’s contributory negligence, a clear factual issue can be drawn. As to the issue of assumption of risk by the invitee, it cannot be established as a matter of law. The fact is that the plaintiff was contributory to his damages. Contributory negligence is failure by a person, characteristically the plaintiff, to take sensible care for his or her own safety, which contributes to the harm the person suffers. He knew the dangers of snow in which he walked on from his office to the restaurant without falling. Then the question is then, why then fall when opening the door?
In short the case should be ruled in favour of the defendant, Kate Inc.
Miller West’s Business Law, Text, Cases, West Publishing Company, 1997