Black v. Nelson

MAUGHAN, Justice

(dissenting):

Respectfully, I dissent on the ground that reasonable minds could disagree as to whether plaintiff exercised reasonable care for her safety, under the particular circumstances. The cases cited in the majority opinion in footnote 3 are factually distinguishable from the instant action in that the plaintiffs therein stepped into areas with which they were not acquainted. In contrast, the plaintiff here had ‘previously used this rear entrance (as had others), and was familiar with the objective she sought, viz., the door to the salon, which was apparent to her because of a beam of light underneath the door, between the bottom of the door and the sill. The majority concludes as.a matter of law that plaintiff had only one reasonable alternative when the back door closed, i. e., to retreat when she encountered darkness. Considering plaintiff’s general familiarity with the area, reasonable minds might differ as to her exercise of due care in proceeding.

In Whitman v. W. T. Grant Company1 this court stated that 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 prevent one from seeing the danger, thus providing some reasonable basis for finding that even though one exercised due care, one could be excused from seeing and avoiding it.

*215Plaintiff here was prevented from seeing the hazard by the absence of any artificial illumination in the area. She was on the premises as a business invitee, she was generally familiar with the area having used the way before, as had others. Whether her course of conduct, after ascertaining the existing conditions, constituted an exercise of due care for her own safety, was a jury question.

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