Miller v. Safeway Stores, Inc.

Decision Date25 November 1959
Citation219 Or. 139,346 P.2d 647
PartiesHelen G. MILLER, Respondent, v. SAFEWAY STORES, INCORPORATED, a corporation, Appellant.
CourtOregon Supreme Court

James Arthur Powers, Portland, for appellant. With him on the brief was Earle P. Skow, Portland.

Thomas H. Tongue, Portland, for respondent. With him on the brief were Hicks, Davis, Tongue & Dale, Portland, and Goldsmith, Siegel & Goldsmith, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and KING, JJ.

SLOAN, Justice.

The jury awarded plaintiff a verdict for injury she sustained when she allegedly fell over boxes in the aisle of one of defendant's stores. From the ensuing judgment defendant appeals. The primary issue is the failure of the trial court to allow a motion for a directed verdict and for a judgment n. o. v. A review of the facts most favorable to plaintiff is necessary.

The store is one located at 820 S. E. Belmont in Portland. Plaintiff entered the store shortly before noon in the company of her son and small grandson for the admitted purpose of buying groceries. Neither plaintiff nor her son had been in the store before. They entered at the front of the store, plaintiff's son got a shopping basket or cart of the familiar kind and they proceeded to the meat counter at the rear of the store. The physical outlay of the store was similar to that of most self-service stores of this kind. The items of merchandise were displayed on long tiers of shelves running the approximate length of the store. Between the shelves were aisles for the passage of customers to enable them to see and select the items desired. The aisles were estimated to be about five and a half or six feet in width. The shelves were about five feet high, wider at the base than at the top. The base of the bottom shelf was cut back or recessed under the outer edge of that shelf for about six or eight inches to a height above the floor level of about the same distance. It is assumed this is a 'toe space,' which we can best identify as being similar to that found in most kitchen cupboards and shelves.

After plaintiff and her son had completed their selection of meat from that counter they proceeded to the front of the store along one of the aisles we have described. The son was about ten feet ahead of plaintiff. She was looking along the shelves on one side of the aisle for soap. She testified:

'A. Well, I was walking along looking at the merchandise and suddenly my foot his something.

'Q. Which foot? A. My right foot.

* * *

* * *

'A. And I lost my balance and fell.

* * *

* * *

'Q. What kind of an object was it? A. Well, it seems it was probably solid because it resisted my foot.'

She fell on her left side with her feet to the 'back of the store and my head to the front of the store.' As she lay there she noticed two boxes about 24 inches from her feet, 'and one of them was out of line.' 'They were lengthwise of the display counter.' One was described as being against the display counter or perhaps partially within the toe space under the counter or shelves which we have mentioned. The other was described as sticking out into the aisle. This box was the one nearest her feet. She described the boxes or cartons as being about six or eight inches high, about 12 or 14 inches wide and about 18 inches long. They were made of brown cardboard. Her son returned to assist her. He described the boxes, and their location, in about the same way. He did also say that they were labeled in some way but he could not remember what kind of a label. Another witness who had passed up this aisle a few minutes before the accident testified that she saw boxes or cartons in the aisle. This witness did not otherwise specify the precise location of the boxes.

The defendant relied on evidence to the contrary. Two other customers, who testified they saw plaintiff fall, swore that they examined the floor area to see what could have caused the fall and that they did not see any boxes or cartons. The manager of the store and three other employees testified that they were present immediately after the accident and that no boxes were present. We must assume the boxes were in the aisle. And it is a fair inference that plaintiff's stumbled over one of them.

The basis of defendant's argument here is that the presence of the boxes does not violate the duty of the defendant to exercise due care for the safety of its patrons. It also contends that the boxes were in full view, readily apparent, and plaintiff was guilty of contributory negligence as a matter of law. The evidence presented by defendant at the trial was limited, almost exclusively, to the testimony that no boxes were there. However, as we have said, that issue is now resolved against the defendant. It did elicit some testimony as to the composition and color of the floor. This was of little value. To say a floor was green or brown or mottled means little. The spectrum of color is too great to enable one to visualize the appearance of any given object by mere mention of color by name only. There was evidence that it was a clear day, but little other testimony as to lighting conditions within the store.

In this case we are not called upon to decide if defendant had knowledge that the boxes were in the aisle. The defendant admits that the boxes were placed there by defendant's employees and that they contained merchandise of the defendant, probably soap, to be placed upon the shelves. This imputes knowledge. Briggs v. John Yeon Co., 168 Or. 239, 251, 122 P.2d 444. Therefore, cases like Lee v. Meier & Frank Co., 166 Or. 600, 114 P.2d 136, have no application to this case.

The gist of the argument made here is based upon the disposition of some of the courts to apply different standards of care to both and owners and patrons of self-service stores. The defendant, for good reason, urges that we adopt the view expressed in Fredericks Market v. Knox, Fla., 66 So.2d 251 and Smith v. American Stores Company, 38 Del.Co.R., Pa., 39. In these two cases the court imposed upon the customer a higher degree of care when serving himself than in a place of business that provides service to the customer. These cases adopt the view that the customer gains a benefit from the self-service type of store and should be held to greater caution in avoiding hazardous conditions. Casciaro v. Great Atlantic & Pacific Tea Co., 238 Mo.App. 361, 183 S.W.2d 833, is typical of the opposite extreme accepted by other courts. It is reasoned that the self-service type of store affords the merchant greater opportunity to command the eyesight of his customers. 'Attention arresters' are to be found conspicuously displayed on the shelves and in the aisles of such a store. Accordingly, it has been held that when merchandising methods compel the attention of the customer away from careful lookout to the floor, the proprietor of the store owes a greater duty to protect the movement of the customers' feet. See Torts--Contributory Negligence--Business Guest--Attention Arrester--Matter of Law or Fact, 2 Ala.L.Rev. 373. Cases are collected at 26 A.L.R.2d 675.

There is, in reality, no sound basis for applying either of the more extreme views we have mentioned. The self-service store assumes about as many different forms and merchandising schemes as there are types of trucks upon the highway. To apply the label of self-service to a given place of business and them impose upon that place of business a different standard of care than the store next door is impractical and unwise. We might as well, and just as logically, say that the driver of a log truck must adhere to a different standard of conduct than a driver of a flatbed truck or a passenger car, for that matter. We decline to adopt either theory as a rule of law.

We are called upon to apportion our income between the impelling desires created for us by artfully contrived merchandising know-how. This be true whether it is a continuing pressure of advertising in all its forms or of the more instantaneous urge created by eye-appealing displays of merchandise. Either form can be, and is, demanding of our attention and power to resist. However, for a court to attempt to rule as a matter of law that one form or type of merchandising should adhere to a greater or lesser standard of care...

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