Cox v. JC Penney Co., Inc.

DONNELLY, Judge,

dissenting.

In my view, the adoption of a concept of comparative fault in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), need not, and should not, cause a change in duties owed, for example, at road intersections, or in the manufacture, design and use of products or, as here, on premises. See, Sherman v. Platte County, 642 P.2d 787 (Wyo.1982).

Prior to Gustafson, the following instructions would have been proper in this case:

Verdict Director
Your verdict must be for plaintiff if you believe:
First, there was a luggage strap on the floor of defendant’s store and as a result the floor was not reasonably safe for customers; and
Second, plaintiff did not know and by using ordinary care could not have known of this condition; and
Third, employees of defendant knew or by using ordinary care could have known of this condition; and
Fourth, employees of defendant failed to use ordinary. care to remove it; and
Fifth, as a direct result of such failure, plaintiff was injured.
Contributory Negligence
Your verdict must be for defendant if you believe:
First, plaintiff failed to keep a careful lookout; and
Second, plaintiff was thereby negligent; and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.

See, Wyatt v. Southwestern Bell Telephone Company, 573 S.W.2d 386 (Mo.App.1978).

After Gustafson, the following instructions would be appropriate in this case:

Verdict Director
In your verdict you must assess a percentage of fault to defendant whether or not plaintiff was partly at fault if you believe:
First, there was a luggage strap on the floor of defendant’s store and as a result the floor was not reasonably safe for customers; and
Second, plaintiff did not know and by using ordinary care could not have known of this condition; and
Third, employees of defendant knew or by using ordinary care could have known of this condition; and
*31Fourth, employees of defendant failed to use ordinary care to remove it; and
Fifth, such failure directly caused or directly contributed to cause damage to plaintiff.
Contributory Fault
In your verdict you must assess a percentage of fault to plaintiff whether or not defendant was partly at fault if you believe:
First, plaintiff failed to keep a careful lookout; and
Second, plaintiff was thereby negligent; and
Third, such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.

In sum, the essential elements required to support a verdict in this case after Gus-tafson are the same as the essential elements required to support a verdict before Gustafson.

Appellant’s real quarrel is with the “idea that the occupier is liable only where his knowledge of the danger was superior to that of the customer * * Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U.Pa.L.Rev. 629, 634 (1952). Certainly reasonable minds can differ as to whether such idea (which is expressed in Paragraph Second of Instruction No. 6) is sound. But the suggestion that it became a problem with the adoption of comparative fault in Missouri, or that it was intended in Gustafson to abrogate it, is without basis in fact. See, Dean v. Safeway Stores, 300 S.W.2d 431, 432 (Mo.1957).

I respectfully dissent.