Orr v. First Nat. Stores, Inc.

• Decision Date: 17 August 1971
• Citation: 280 A.2d 785
• Parties: Rosselyn E. ORR and Ross M. Orr v. FIRST NATIONAL STORES, INC.
• Court: Maine Supreme Court

Page 785

280 A.2d 785

50 A.L.R.3d 1202

Rosselyn E. ORR and Ross M. Orr v. FIRST NATIONAL STORES, INC.

Supreme Judicial Court of Maine.

Aug. 17, 1971.

Burton G. Shiro, Waterville, for plaintiffs.

Wathen & Wathen by Daniel E. Wathen, Augusta, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and WERNICK, JJ.

WERNICK, Justice.

On appeal. Defendant claims erroneous a judgment resulting from a jury verdict for plaintiffs as modified by a remittitur ordered by the presiding Justice and accepted by plaintiffs to reduce the damages recovered by the plaintiff-minor, Rosselyn E. Orr, from $2500.00 to $1500.00, and by her father, Ross M. Orr, from $500.00 to $250.00.

The appeal asserts that the presiding Justice was incorrect (1) in various rulings made by him during the course of the trial, (2) in portions of the charge to the jury over objections of defendant and (3) in his denial of a motion for judgment n. o. v. filed by the defendant in compliance with Rule 50(b) M.R.C.P.

We decide that the presiding Justice acted properly in denying defendant's motion for judgment n. o. v. since the evidence raised issues of fact as to the liability of defendant for determination by a jury under appropriate instructions of law by the court. We sustain the appeal, however, because in his charge to the jury the presiding Justice gave instructions regarding the scope of defendant's duty of due care in maintaining its premises which were prejudicially erroneous and to which defendant had made timely objection. ¹

The Motion for Judgment N.O.V.

The presiding Justice's ruling on defendant's motion for judgment n. o. v. is to be tested by the application of the familiar principle that the evidence must be taken in the light most favorable to plaintiffs. On the evidence thus considered the following factual situation could have been found by the jury.

On March 18, 1968 the plaintiff-minor Rosselyn E. Orr, 8 years of age, together with a girlfriend of similar age, accompanied Rosselyn's mother, Stella V. Orr, to the supermarket of defendant located at Main Street, Waterville, Maine, in which Mrs. Orr intended to do shopping. After all three had entered the store and had walked among various aisles in which merchandise was displayed, the two children requested of Mrs. Orr, and were given, some pennies with which to purchase bubble gum from among a group of gum dispensing machines located near the entrance-exit area of the store.

This area contained two metal framed doors, one for ingress swinging inward and the other for egress swinging outward onto the sidewalk and street area. As one would look from inside to the exterior of the store the entrance door would be to the right and the exit door to the left. Each door opened automatically whenever a person, or object, came upon a tread placed in front of it. Four gum dispensing machines were stacked immediately adjacent to the exit door, on the left if one were departing from the store.

The two doors were separated throughout their height by a metal-framed glass panel approximately one foot in width. Commencing approximately four to six inches from this panel and running at a right angle to it into the interior of the store, there was a stainless steel tubular railing serving as a divider of the respective sections for entrance and exit. It was shaped so that, perpendicularly with the line of the floor, it formed a rectangle (with rounded top edges) of metal (except for the line of the floor), the rectangle being slightly more than four feet in depth into the store and approximately three feet in height. Half-way between the two sides of the rectangle was a third middle support running from the top of the railing to the floor. All of the stainless steel railing was tubular in form, approximately three inches in diameter and sufficiently smooth to be slippery to the touch.

The trajectory of the ingress door brought the door on its inward course as close as six to ten inches to the metal railing divider. Underneath the railing there was only empty space except for the middle tubular support. Thus, a child could easily use each half of the tubular railing as a swing rod, to swing over and under and even to complete, with sufficient adroitness, a full circle swing. The gum dispensing machines were located within four feet of the divider railing.

After Mrs. Orr had given Rosselyn pennies to go to purchase bubble gum, the two girls left Mrs. Orr at a place near the middle portion of the store. They went to the front to the gum dispensing machines. Rosselyn was about to purchase gum when she observed that her friend had begun to swing on the railing. With her attention thus diverted from buying gum, Rosselyn herself went to the railing and commenced swinging. She had swung one time and 'then the second time I was leaning over when Kenny Phair (an employee of defendant, who had been running the cash registers which were located about five to six feet farther inside the store from the railing) told me to get off, off the railing. I couldn't get back up, so I just slipped and fell.' (R. p. 36) When she fell, Rosselyn struck her mouth on the floor and the impact caused two upper teeth to be fractured leaving a 'V' shaped opening.

Prior to March 8, 1968, employees of the defendant store, including the manager, had observed children swinging on the railing 'quite frequently' or 'fairly often.' The manager had himself cautioned children about swinging, and the manager was aware of dangers to children not only because they might swing and fall from the railing but also because of the proximity of the entrance door to the railing as it opened inward to admit patrons.

On the foregoing facts the jury was justified in concluding that the plaintiff-minor, Rosselyn E. Orr, was a 'business invitee' of the defendant at all times and places relevant in the case. This proposition is supported by either of two legal approaches. First, the overwhelming majority rule in this country, of which we approve, is that a young child who accompanies her mother into a store in which the mother is intending to shop (and regardless of whether the mother could have readily made other arrangements to avoid having her young child with her while she is shopping) is, like the mother, a business invitee of the store. Altman v. Barron's Inc., 343 Mass. 43, 175 N.E.2d 506 (1961); Milliken v. Weybosset Pure Food Market, 71 R.I. 312, 44 A.2d 723 (1945). ² Second, the fact that Rosselyn herself was about to make a purchase in the store of bubble gum, merchandise designedly offered for her special interest and benefit, makes her, independently of her mother, a business invitee of defendant. Shaw v. Piel, 139 Me. 57, 27 A.2d 137 (1942) and cases cited therein predicating business invitee status upon the mutual economic benefit theory. ³

As a business invitee upon defendant's premises Rosselyn was owed by the defendant the duty that defendant would exercise reasonable care to provide her with premises and installations which were reasonably safe for her use. Walker v. Weymouth, 154 Me. 138, 145 A.2d 90 (1958); Jamieson et al. v. Lewiston, Gorham Raceways, Inc., Me., 261 A.2d 860 (1970).

This general principle subdivides into two aspects which are fundamentally distinct and which require independent theoretical analysis, although, under particular circumstances, there might be an overlap in application. For convenience of discussion we shall undertake the subsidiary inquiries in an inverted order.

We consider, first, whether the evidence, taken in the light most favorable to plaintiffs, would warrant a rational jury in concluding that the ordinarily careful storekeeper-(that hypothetical creature postulated by the law as the standard of judgment),-in the light of all the circumstances known by him, would believe that the conditions and installations in the store of defendant exposed a child business invitee, of the approximate age of eight years, to risks of harm greater than are reasonably to be tolerated.

In evaluating this question, we commence with the proposition that the ordinarily careful owner or occupier of land will anticipate that young children have propensities to intermeddle and to indulge impulses to play and climb. See Collentine v. City of New York, 279 N.Y. 119, 17 N.E.2d 792, 795 (1938). The law holds further, that even if young children are intellectually aware of potential dangers they are reasonably to be expected, emotionally and behaviorally, to ignore, or to assume, known or obvious risks of harm. In Searles v. Ross, 134 Me. 77, 181 A. 820 (1936) this Court, commenting on the thoughtlessness and heedlessness natural to boyhood, said that children as old as thirteen years of age are likely to act dangerously to themselves even though, upon reflection, they know better.

Worthy of consideration, too, is the analogous situation in which this Court has held that tendencies to play even by an adult, in the form of 'horseplay' on business premises, may, when known or reasonably to be anticipated, become attributable to the business operation as creating risks of harm for which the owner, or operator, is legally responsible. Petersen's Case, 138 Me. 289, 25 A.2d 240 (1942).

In addition, the law attributes to the ordinarily prudent owner or occupier of business premises awareness that various installations which are innocuous to children (when used as intended) attract children to utilize them in unintended, but nevertheless reasonably foreseeable, ways and that, as thus misused, the facilities can subject the children to unreasonable risks of harm which are likewise reasonably recognizable. Kataoka v. May Department Stores Co., 60 Cal.App.2d 177, 185, 140 P.2d 467, 474 (1943); requoted in Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356, 361 (1943); Thacker v. J. C. Penney Company (5 CCA) 254 F.2d 672, cert. den. (1958) 358 U.S. 820, 79 S.Ct. 31, 3 L.Ed.2d 61.

When the presiding...