Sears, Roebuck and Co. v. Daniels

• Decision Date: 21 February 1962
• Docket Number: No. 16790.,16790.
• Parties: SEARS, ROEBUCK AND CO., a Corporation, Appellant, v. Mabel DANIELS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F.2d 154 (1962)

SEARS, ROEBUCK AND CO., a Corporation, Appellant, v. Mabel DANIELS, Appellee.

No. 16790.

United States Court of Appeals Eighth Circuit.

February 21, 1962.

John R. Baylor, Lincoln, Neb., made argument for appellant. Baylor Evnen, Baylor & Urbom, Lincoln, Neb., on the brief.

Jerry L. Snyder, Lincoln, Neb., made argument for appellee. Muffly & Snyder, Lincoln, Neb., on the brief.

Before SANBORN, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Sears, Roebuck and Co. appeals from final judgment entered in favor of plaintiff Mabel Daniels in an action for damages for personal injuries alleged to have been incurred as a result of plaintiff falling over a rubber mat in defendant's department store at Lincoln, Nebraska, on December 10, 1957. Jurisdiction, based upon diversity of citizenship and the requisite amount, is established.

It is undisputed that plaintiff was a business invitee at defendant's store and that defendant had caused a large rubber mat to be placed between the inner and outer doors of its store. Plaintiff in her complaint asserts that defendant negligently maintained such rubber mat in such location in a worn and hazardous condition, whereby the edges of said mat were curled up offering a dangerous obstacle to those entering the store; that by reason of such negligence, plaintiff, while entering the store as an invitee, was tripped and thrown to the floor and was injured without fault or negligence on her part; that defendant's negligence was the proximate cause of plaintiff's substantial injuries for which she asked damages. Defendant denied negligence and asserted affirmative defenses of contributory negligence and assumption of risk.

Evidence was introduced on behalf of the parties. The evidence, viewed in the light most favorable to the plaintiff, shows that the accident occurred in the foyer of the store between the inner and outer doors. A large mat, about 12 feet long, 6 feet wide and ½ inch thick was placed just inside the outer door. The edge of the mat over which plaintiff stumbled could not be seen until the outer door was opened. Plaintiff testified that as she opened the door and stepped into the store, something caught her left foot and caused her to stumble and fall on the mat. Immediately after the fall she observed her surroundings from a sitting position on the mat. The edge of the mat was worn and curled up about 2 inches from the level of the mat. She was "most sure" that she stumbled over the curled edge of the mat. She observed no other obstacles which would cause a fall.

Defendant's assistant manager testified that at the time of the accident the mat was about 13 months old; that it was placed in the foyer under his directions when the weather was stormy.

Plaintiff's evidence as to the condition of the mat is not directly contradicted. The mat was not introduced in evidence nor did defendant offer any testimony to describe the condition of the mat at the time of the accident or immediately thereafter,¹ although it is apparent that defendant had notice of the accident shortly after it happened.

The case was tried to a jury, which returned a verdict in favor of the plaintiff for $1500. Defendant at the close of plaintiff's evidence and again at the close of all of the evidence moved for a directed verdict and after verdict, moved for judgment n. o. v. and for a new trial. All of these motions were overruled, whereupon final judgment was entered upon the verdict. This appeal followed.

I.

Defendant in its first point urges that the court erred in denying its motion for directed verdict because the evidence is insufficient to show:

(a) The existence of any substantial defect in the mat.

(b) The inherent danger of a 2 inch obstacle created by the curling of the mat at the store entrance.

(c) The defendant's actual or constructive knowledge of the defects in the mat.

(d) The defect was the proximate cause of plaintiff's injuries.

As an additional ground of the motion, defendant stated that plaintiff was guilty of contributory negligence more than slight in failing to observe and bypass the small obstacle created by the curl in the mat.

All of said grounds were raised in defendant's motions made in the trial court. The grounds are closely related and are largely governed by common legal principles. Since the accident occurred in Nebraska, the law of that state governs. This case was tried before an able Nebraska judge. We have frequently stated that on doubtful issues of local law in diversity cases, we go no further than to determine that the trial court has reached a permissible conclusion upon the basis of the law of his state. Transport Mfg. & Equip. Co. v. Fruehauf Trailer Co., 8 Cir., 295 F.2d 223, 227; Homolla v. Gluck, 8 Cir., 248 F.2d 731, 734.

The Supreme Court of Nebraska in cases involving negligence claims asserted by invitees against storekeepers has held that the issues of negligence, proximate cause and contributory negligence are ordinarily fact issues and has held that plaintiff had made out a case for the jury in the following cases: Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842, (post in parking lot in drive-in); Brown v. Slack, 159 Neb. 142, 65 N.W.2d 382, (milk tray in aisle in grocery store); Taylor v. J. M. McDonald Co., 156 Neb. 437, 56 N.W.2d 610, (gum in aisle of department store); Rankin v. J. L. Brandeis & Sons, 135 Neb. 86, 280 N.W. 260, (soapy spot in department store aisle); Glenn v. W. T. Grant Co., 129 Neb. 173, 260 N.W. 811, (oil spot in store aisle); Rogers v. J. C. Penney Co., 127 Neb. 885, 257 N.W. 252, (fall down stairway, view of which was obstructed by clothes rack); see also Surface v. Safeway Stores, 8 Cir., 169 F.2d 937, (customer slipped on wet spot in grocery store — case applies Nebraska law.)

It is true that on some occasions in business invitee cases, the Nebraska court has determined defendant was entitled to a directed verdict. Sipprell v. Merner Motors, 164 Neb. 447, 82 N.W.2d 648; Bowerman v. Greenberg, 142 Neb. 721, 7 N.W.2d 711; Broadston v. Beddeo Clothing Co., 104 Neb. 604, 178 N.W. 190. For an exhaustive note collecting cases on "Liability of proprietor of store, office or similar premises for injury from fall due to defect in floor or floor covering," see 64 A.L.R.2d 335.

The Nebraska cases all hold that a store owner is not an insurer of the safety of his patrons and that liability to a business invitee is predicated upon negligence. Negligence is not presumed and the happening of an accident does not establish negligence. The burden is upon the plaintiff to establish negligence and proximate cause. Contributory negligence more than slight is an affirmative defense. The burden is upon the defendant to establish such defense. The issues of negligence, proximate cause and contributory negligence are ordinarily fact issues. In considering the question of the sufficiency of the evidence to support a verdict, the evidence must be viewed in the light most favorable to the prevailing party, and such party must be given the benefit of all inferences that may reasonably be drawn from the evidence. Morse v. Gray, supra; Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, 860.

In Brown v. Slack, supra, the court states:

"`A customer is an invitee and the owner must exercise reasonable care to keep the building reasonably safe for his use, but the owner is not an insurer against accident.\' (Citations omitted.)

* * * * *

"What constitutes due care of an inviter is always determined by the circumstances and conditions surrounding the transaction under consideration.

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"`The rule is that, where different minds may reasonably draw different conclusions from the evidence as to whether or not they establish negligence, the issues are for the jury.\'" 65 N.W.2d 385.

We do not establish the law for the state of Nebraska. Such right and duty rests with the Supreme Court of Nebraska. Hence, it is useless to attempt to discuss the fact situations in many pertinent Nebraska cases or attempt to reconcile or distinguish such cases. Seldom, if ever, is the factual situation in any two negligence cases identical.

It is perhaps fair to say that the Nebraska cases place a greater responsibility to exercise care on a storekeeper for the area within his store than exists toward an invitee on the street or upon the outside steps. For a discussion of this situation by the Nebraska court, see Glenn v. W. T. Grant, supra.

In our present case, the mat causing the accident was in the foyer between the inner and outer doors of the store. Our reading of the Nebraska cases satisfies us that it is by no means clear that the Nebraska court would not apply the standards of care applied within a store to the foyer location here involved.

In our present case, we believe that the jury was warranted in finding that the mat was worn with curled edges raising to a height of 2 inches, as testified to by the plaintiff; that the maintenance of such defective mat was a violation of the duty of care owed by the defendant to the plaintiff as an invitee, and that the 2 inch raised edge of the mat was the proximate cause of plaintiff's fall and injury.

Something should be said about defendant's contention that it is not negligent because it had neither actual nor constructive knowledge of the defective condition of the mat. Two answers can be made to such contention. A heavy rug such as here involved would in all probability not show wear or curl instantaneously. The rug was in a conspicuous place at the store entrance. The jury could reasonably infer that the defect of the type plaintiff described must have been in existence for sufficient time to permit discovery thereof by defendant's supervisory employees.

The other answer is that the jury could find that the condition of the mat was created by defendant or its employees. Under such circumstances, the Nebraska...