Hellmann v. Droege's Super Market, Inc.

AHRENS, Chief Judge,

concurring.

On rehearing, I am persuaded that on the record in this case, reasonable minds could differ as to whether Droege’s should have anticipated harm to plaintiff and the trial court therefore erred in directing a verdict for Droege’s.

However, I disagree with the portion of the majority opinion which holds that Droege’s had a duty to anticipate that an invitee might be harmed by an open and obvious danger. The general rule in Missouri is that a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo. banc 1993); Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 933 (Mo.App.1996). Harris adopts Restatement (Second) of Torts, § 343A(1) which spells out an exception to the general rule and recognizes a duty where the possessor should anticipate the harm despite the open and obvious condition.

In Harris, the Supreme Court noted that its decision in Cox “did not intend to abrogate the open and obviousness of a condition as a consideration for the court in determining a possessor of land’s standard of care.” Harris, 857 S.W.2d at 227. Harris recog*661nized that “a possessor of land is not an absolute insurer of the well-being of its invitees.” Id. at 226. I do not believe that Harris or the Restatement (Second) of Torts, §§ 343 and 343A impose a duty on the landowner to anticipate harm to its invitees from open and obvious conditions. Instead, no duty arises unless the landowner should anticipate harm to its invitees from the open and obvious condition. Here, there was evidence in the record on which reasonable minds could differ as to whether Droege’s should have anticipated the risk of harm to plaintiff. Therefore, under the circumstances of this case, whether Droege’s conduct fell short of the standard of care was a question of fact for the jury.

However, as in Harris, in a case where reasonable minds can not differ in determining that a landowner should not have anticipated the risk of harm, or where no risk of harm exists unless plaintiff fails to exercise due care, no duty exists as a matter of law, and a directed verdict would be proper. I am concerned that the majority opinion, contrary to the holding in Harris, creates a duty on the part of a landowner to anticipate harm to invitees from open and obvious dangers, thereby removing the issue as a consideration for the court in determining a possessor of land’s standard of care. I therefore concur in result only.