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Janis v. Nash Finch Co.

March 17, 2010

FRANCIS JANIS, PLAINTIFF AND APPELLANT,
v.
NASH FINCH COMPANY D/B/A PRAIRIE MARKET, DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA, HONORABLE JOHN J. DELANEY Judge.

The opinion of the court was delivered by: Severson, Justice

ARGUED JANUARY 13, 2010

[¶1.] Francis Janis (Janis) sued Nash Finch Company (Prairie Market) for its alleged negligent failure to exercise reasonable or ordinary care to make its premises safe for him. The trial court granted Prairie Market's motion for summary judgment on the basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. Janis appeals. We reverse and remand.

BACKGROUND

[¶2.] Prairie Market is a supermarket in Rapid City, South Dakota, owned and operated by Nash Finch Company. The morning of January 28, 2004, was very cold, and a northeast wind was blowing. At approximately 7:30 a.m., Janis, a janitor for Youth and Family Services in Rapid City, came to Prairie Market to purchase food for breakfast. He was wearing rubber-soled work boots. The sidewalk leading to Prairie Market was clear of ice and packed snow. Janis walked through the open sliding glass door on the west end of the Prairie Market entryway and stepped onto a commercial rug on the tile floor immediately inside the door. Upon Janis's second step onto the rug, it slid from under his feet, and he began to fall. Janis reached for a stack of shopping baskets in an attempt to break his fall, but they gave way. He fell awkwardly, twisting his knee and landing on his back. When Janis attempted to get up, he fell a second time. Janis put his hand under him as he fell this second time and felt a patch of ice on the floor. This patch of ice had been hidden under the rug.

[¶3.] Beverly Nagel, Prairie Market's head cashier, witnessed Janis's fall. When Janis got up, he approached Nagel to speak to her. He showed her his bruised knuckles and told her that his wrist was injured. Nagel walked to the entryway to look at the area where Janis had fallen. She saw that the rug inside the door on the west end of the Prairie Market entryway was out of position as it slid forward during Janis's fall. She also saw a patch of ice two feet by one foot on the floor where the rug had been. Nagel wrote a narrative report of Janis's fall and notified management of the incident. Janis went to the hospital for treatment of his injuries, but returned to Prairie Market to speak with Prairie Market management later in the day. When Janis returned to Prairie Market, "wet floor" warning signs and ice melt had been placed near the door on the west end of the entryway.

[¶4.] It is not clear how the patch of ice formed under the rug. At the time of Janis's fall, Prairie Market contracted with a floor maintenance company for overnight cleaning of the tile floors in the store, including the entryway. The floor maintenance company swept and scrubbed the floors each night. It has been suggested that floor maintenance company employees placed the rug on the wet tile floor and that water under the rug froze as a result of the cold temperature, wind, and frequent opening of the sliding doors on the morning of Janis's fall. It has also been suggested that moisture tracked into the store by customers and employees accumulated under the rug and froze. There was no evidence that anyone other than Janis had ever fallen on a patch of ice inside the Prairie Market entryway.

[¶5.] Janis initiated this lawsuit against Prairie Market in January 2007. He alleged that he entered Prairie Market as a business invitee and that Prairie Market failed to exercise reasonable or ordinary care to make its premises safe for him. After significant discovery, Prairie Market moved for summary judgment. The trial court concluded that the risk of harm was not foreseeable because no prior similar incidents had occurred on the premises. The trial court granted Prairie Market's motion for summary judgment on that basis that Prairie Market did not owe a duty of reasonable or ordinary care to Janis. Janis appeals.

STANDARD OF REVIEW

[¶6.] This Court's standard of review of a grant or denial of a motion for summary judgment is well settled. "In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we determine whether the moving party has demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law." Dykstra v. Page Holding Co., 2009 SD 38, ¶23, 766 NW2d 491, 496 (citations omitted). "The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party." Id.

"The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists." Id.

[¶7.] "Summary judgment is proper in negligence cases if no duty exists as a matter of law." Pierce v. City of Belle Fourche, 2001 SD 41, ¶8, 624 NW2d 353, 355 (citing Peterson v. Spink Elec. Coop., Inc., 1998 SD 60, ¶¶1-2, 578 NW2d 589, 591). "[Q]uestions of negligence, contributory negligence, and assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues." Rowland v. Log Cabin, Inc., 2003 SD 20, ¶14, 658 NW2d 76, 80 (quoting Pettry v. Rapid City Area Sch. Dist., 2001 SD 88, ¶7, 630 NW2d 705, 708 (quoting Pierce, 2001 SD 41, ¶22, 624 NW2d at 356-57)). "It is only when reasonable men can draw but one conclusion from facts and inferences that they become a matter of law[.]" Id.

ANALYSIS AND DECISION

[¶8.] "Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury." Stone v. Von Eye Farms, 2007 SD 115, ¶6, 741 NW2d 767, 770 (quoting Pierce, 2001 SD 41, ¶22, 624 NW2d at 356-57). "The existence of a duty owed by the defendant to the plaintiff, which requires the defendant to conform to a certain standard of conduct in order to protect the plaintiff against unreasonable risks, is elemental to a negligence action." Poelstra v. Basin Elec. Power Coop., 1996 SD 36, ¶7, 545 NW2d 823, 825 (quoting Erickson v. Lavielle, 368 NW2d 624, 626 (SD 1985)). While a jury generally determines whether a duty has been breached, "the existence of a duty is a question of law to be determined by the court." Small v. McKennan Hosp. (hereinafter Small I ), 403 NW2d 410, 413 (SD 1987) (quoting Barger for Wares v. Cox, 372 NW2d 161, 167 (SD 1985)).

[¶9.] This Court has retained the common-law classifications of trespasser, licensee, and invitee in determining the duty a landowner owes the entrants on his land. Andrushchencko v. Silchuk, 2008 SD 8, ¶22, 744 NW2d 850, 857-58 (citing Musch v. H-D Elec. Coop., Inc., 460 NW2d 149, 150 (SD 1990)). A business invitee is "a business visitor 'who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.'" Rowland, 2003 SD 20, ¶10, 658 NW2d at 79 (quoting Small v. McKennan Hosp. (hereinafter Small II ), 437 NW2d 194, 199 (SD 1989) (quoting ...


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