Tuesday, October 18, 2005

DV for KwikShop reversed where Pl. fell in snow packed parking lotIn unpublished opinion Neb App reverses directed verdict for Kwik Shop where Plaintiff fell in snow packed parking lot. Court finds sufficient evidence to present to jury that Defendant owed a duty of reasonable care to the Plaintiff and that it may have breached it. Court does not address issue of assumption of risk or contributory negligence. Court also finds sufficient evidence of notice. Burrell v. Kwik Shop (Not Designated for Permanent Publication)October 18, 2005. No. A-04-513.Appeal from the District Court for Douglas County: Patricia A. Lamberty, Judge. Reversed and remanded for a new trial. whether Kwik Shop should have expected that Burrell either (a) would not discover or realize the danger or (b) would fail to protect herself against the danger. The danger of walking across a snow-packed parking lot is obvious, and thus, the question here is whether Burrell would fail to protect herself against the danger. The court in Burns v. Veterans of Foreign Wars, 231 Neb. 844, 855, 438 N.W.2d 485, 492 (1989), stated: "[R]eason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. . . . It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances." Quoting Restatement (Second) of Torts, § 343 A, comment f. (1965). Here, there was evidence that the only customer entrance was the double doors through which Burrell entered. Burrell testified that the entire parking lot was snow packed and that there was nothing to hold on to as she walked toward the store. She testified that she was being "very cautious and careful and walking slowly" as she walked across the parking lot. She testified that she entered the Kwik Shop store to make sure that she paid and to get a receipt, because she had attempted to pay with a credit card at the pump but the machine did not issue a receipt. There was evidence here that Kwik Shop could expect that after filling the car with gas, a customer may enter the store to pay for the gas, buy additional items, use the facilities, or merely obtain a receipt when one is not issued by the machine, and fail to protect herself from the danger of walking across the icy parking lot.

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