Business Owner Liability For Private Parking Lot Designs
Business owners often maintain private parking lots for their business customers. Those customers are business invitees to whom the highest degree of care is owed. The highest degree of care includes an obligation to design the parking lot to provide a measure of protection to pedestrians against being struck by motor vehicles (among other issues).
Sheil v. TG&Y Stores, 781 S.W.2d 778 (Mo. banc 1989) generally establishes the standard of care applicable to self-service stores. The standard is effectively set by the Restatement (Second) of Torts ‘343, which sets out that a possessor of land is liable to a business invitee if the possessor:
- knows or by the exercise of reasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to such
- should expect that they will not discover or realize the danger or will fail to
protect themselves against it, and
- fails to exercise reasonable care to protect them against the danger.
(Quoted from Harris v. Niehaus, 857 S.W.2d 222 (Mo. banc. 1993)
In Sheil, the Missouri Supreme Court cited the notes to ‘343, and quoted that:
To the invitee the possessor owes … the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, …. and to give such warning that the visitor may decide intelligently whether to accept the invitation….
A companion case to Sheil was Moss v. National Supermarkets, 781 S.W.2d 784 (Mo. banc 1989) which further teaches that:
The parking lot is an integral part of the store, maintained to attract customers, and the duties of the store owner with regard to the parking lot are essentially the same as those that relate to the inside of the store.
As a result, the design of the parking lot must be such that it provides a measure of safety for pedestrians, and does not increase the risk that a pedestrian will be struck by a motorist in the parking lot.
Poloski v. Wal-Mart Stores, 68 S.W.2d 445 (Mo. App. WD 2001) is instructive. Poloski was a pedestrian-auto collision occurring in a Wal-Mart parking lot. Wal-Mart tendered a number of arguments, including lack of proof of dangerous condition, lack of proof of causation, and that the negligent act of the motorist was the sole cause of the injury.
The Court disagreed with all of Wal-Mart’s assertions.
The Court determined that, based on the evidence, the jury could have found that the design of the parking lot and the pedestrian traffic safety devices were such that the premises were dangerous and the danger contributed to the incident. The Court determined that expert testimony was not necessary because the inferences about dangerous conditions were within the grasp of the average juror.
Wal-Mart countered that it did not claim to be unaware of the risk of harm posed to pedestrians in a parking lot, and instead argued that the negligence of the vehicle operator (at an arguably excessive speed) was the only cause of the collision. Citing Callahan v. Cardinal Glennon, 863 S.W.2d 862 (Mo. banc 1993) the Court pointed out:
It is clear that Callahan did not mean to eliminate the possibility that two or more actors can contribute to cause a result. They simply each must meet the but for test.
In examining the evidence of whether the parking lot design contributed to cause the collision, meeting a causation-in-fact standard, the Court said:
None of the inferences from this evidence sought by plaintiff and apparently found by the jury defy logic and reason. Rather they present a classic situation where multiple facts all contribute to cause an injury. Such a conclusion was permissible for the jury under the but for test. Whether that conclusion was to be ultimately drawn was for the jury’s determination and was not, under these facts, a question of law for the court.
Of course, the so-called sole cause jury instructions are barred in Missouri by MAI 1.03.
Finally, Wal-Mart argued that the condition of the parking lot was open and obvious, and the risk of harm arose solely from the motorist’s failure to exercise due care and not from any design defect. Wal-Mart argued that the possessor of land is not liable to invitees who are harmed by dangers on the land that are open and obvious to the invitees. Again, the Court disagreed, saying while there is an expectation that each invitee will protect himself or herself from defects on the land, there is no expectation that invitees will protect themselves from negligent acts by each other to which the possessor of land contributed through defects on the land.
One issue currently under discussion in a number of jurisdictions is head-in parking vs. “angled” parking. Most commonly, bollards are set outside the front door of small stores to protect patrons in the building from runaway vehicles, but nothing is done to funnel vehicular traffic away from pedestrians entering and exiting the front door.
The current argument is that pedestrian traffic, the purpose of which is to enter the store through the front door, will be naturally funneled toward the front door, and pedestrians are at highest risk from vehicular traffic in the front door area. The simple solution is to funnel vehicular traffic away from the place pedestrians are most likely to be – the front door.
Simple no-parking funnels directly in front of the store door (the pedestrian’s destination), supplemented by angular vehicle parking are a simple, effective solution. Under the current argument, the mechanics of backing from angled parking are different than head-in parking. With angled parking, the vehicle backs straight out of the angled slot, and away from the front of the building. The path of the vehicle only curves in the direction the vehicle is headed only after backing is terminated and the vehicle begins to move forward. When backing, the vehicle will back out straight so that the driver can have a clear line of sight in the rear view mirror, and is backing away from pedestrian traffic paths. The vehicle will only enter a pedestrian traffic path going forward when the vehicle operator will have a clear view of all pedestrians.
Not so with head-in parking, so goes the argument. When backing, the vehicle must be backed in a curved manner, and the area into which the rear of the vehicle will enter cannot be readily seen in the rear view mirror. Moreover, since the vehicle is being backed directly away from the store, it is backing directly into pedestrian traffic paths — and doing so under circumstances where the operator does not have a clear visual awareness of that which lies in the path to the rear of the vehicle.
Many stores today are re-painting their parking lot layout so that parking is angled on either side of the center of the store doors — the very place pedestrians will be most likely to be found. No parking slots exist directly in front of the store doors, and the disabled access ramps are at each end of the store and in the center. Pedestrian traffic is funneled across the parking lot (often from gas pumps at gas stations and convenience stores) directly toward the front of the store — an area in which no vehicles will be backing up. Instead, the only vehicles in the pedestrian traffic path will be those which have backed out, and are moving slowly forward with pedestrian traffic fully visible in front of the vehicle.
Moreover, even if head-in parking is required for some reason, the simple use of large exterior mirrors on the front of the store, to assist motorists in backing, can at least help reduce the risk of a vehicle-pedestrian collision. Industrial safety experts who design warehouses, and parking lots around warehouses, are well aware of vehicle/pedestrian dangers, and regularly employ inexpensive large mirrors to assist trucks, vehicles, and forklifts in safely backing without striking a pedestrian.
It is only necessary that negligent parking lot design or lay-out be a contributing cause of the injury, not the exclusive clause. The Court in Wagner v. Bondex International, et al, 368 S.W.3d 340 (Mo. App. WD 2012) (Exhibit 39) quoted:
The general rule is that if a defendant is negligent and his [or her] negligence combines with that of another, or with any other independent, intervening cause, he [or she] is liable, although his [or her] negligence was not the sole negligence or the sole proximate cause, and although his [or her] negligence, without such other independent, intervening cause, would not have produced the injury.
Other issues exist related to potential liability of business parking lot owners, including snow & ice removal, lighting, security, and other issues — but those are all separate subjects that are not addressed here.
Private parking lot business owners should consider having a parking lot design expert review and revise their parking lot layout to provide a measure of protection to their customers in advance, and hopefully avoid liability. You should talk to a skilled premises liability lawyer in Missouri for claimant pedestrians or insurance attorney for defendant parking lot owners, review the facts of any case and advise you on the rights and remedies available in the event you or your customers are in a motor vehicle/pedestrian collision.
By: Joseph W. Rigler
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