CeBuzz, Inc. v. Sniderman, 22358

• Decision Date: 16 March 1970
• Docket Number: No. 22358,22358
• Citation: 466 P.2d 457,171 Colo. 246
• Parties: CeBUZZ, INC., a corporation and doing business under the name of Food Giant, Plaintiff in Error, v. Henrietta SNIDERMAN, Defendant in Error.
• Court: Colorado Supreme Court

Page 457

466 P.2d 457

171 Colo. 246

CeBUZZ, INC., a corporation and doing business under the name of Food Giant, Plaintiff in Error, v. Henrietta SNIDERMAN, Defendant in Error.

No. 22358.

Supreme Court of Colorado, En Banc.

March 16, 1970.

Weller, Friedrich & Hickisch, James C. Fattor, Denver, for plaintiff in error.

Frank A. Bruno, H. D. Reed, Robert E. Goodwin, Denver, for defendant in error.

HODGES, Justice.

A previous opinion in this case, upon which a petition for rehearing was granted, is now withdrawn. The issues were reargued before this court sitting en banc.

The parties will be referred to as they appeared in the trial court where plaintiff in error was defendant and defendant in error was the plaintiff.

Plaintiff in her amended complaint alleged that on February 27, 1962, she was shopping in the retail grocery store owned and operated by defendant; that she made a selection of some bananas; and that while she was standing at the checkout counter, she was bitten on her left hand by a tarantula spider or similar spider-like insect which, unknown to the plaintiff, was hidden in the bananas.

Plaintiff also alleged that the defendant had previous knowledge and notice of the presence of tarantula spiders or similar spider-like insects on its premises and in the bananas it held out for sale; that the defendant failed to exercise due care toward its customers and the plaintiff in particular by allowing that condition to exist and to continue; and that the defendant took no steps to safeguard its customers, and the plaintiff in particular, from the threat of injury.

Plaintiff prayed for damages for her injuries, including pain and suffering; for permanent injuries; and for medical and hospital expenses. In a second claim, the plaintiff sought damages for breach of an implied warranty that the bananas selected by her were merchantable, safe and free from danger and contamination.

Trial was to the jury and after both sides rested, counsel for plaintiff moved for a directed verdict on the issue of liability. The trial court granted the motion and in doing so, held the defendant liable on the grounds of absolute liability, breach of implied warranty, and negligence as a matter of law. The court then submitted the question of damages to the jury which returned a verdict in favor of the plaintiff in the amount of $9,500 and judgment was entered on the verdict. From this judgment, the defendant now prosecutes this writ of error.

I.

In our view, the principal issue of significance in this case relates to the trial court's taking the issue of the defendant's liability from the jury on the ground that the evidence established, as a matter of law, the negligence of the defendant. The other grounds announced by the trial court for holding the defendant liable as a matter of law need not be further discussed.

When the trial court has directed a verdict, our task is to determine whether it can be sustained on any ground. Richardson v. Pioneer Const. Co., 164 Colo. 270, 434 P.2d 403. It is also the rule that upon review of a judgment entered upon a directed verdict, the evidence must be viewed in the light most favorable to the party against whom the verdict was directed, and if it is such, that different conclusions might be drawn by fair-minded men as to whether negligence is shown, then the question is one to be determined by the jury. Elliott v. Hill, 148 Colo. 553, 366 P.2d 663; Peterson v. Kessler, 135 Colo. 102, 308 P.2d 610.

It is our conclusion that the evidence established defendant's negligence as a matter of law, and that the trial court properly directed the verdict in favor of the plaintiff on the issue of the defendant's liability.

The following basic facts appear clearly established from the evidence:

1. On February 27, 1962, plaintiff was a business invitee at the defendant's store. Plaintiff had done some shopping and was having her groceries checked out when she decided to purchase some bananas. She left the checkout stand, leaving her husband, her daughter and a Mrs. Johnson to wait for her at the checkout stand, and she proceeded to the produce counter where she selected a bunch of bananas. Plaintiff immediately returned to the checkout counter and stood between her daughter and Mrs. Johnson.

2. While holding the bananas, she sustained a painful insect bite on her left hand causing her to drop the bananas on the counter. A bug emerged and crawled through a crack on the counter top.

3. Two or three days prior to the occurrence upon which this action is based, the defendant corporation, through its employee, Barbara Field, had been put on notice that a condition of some danger existed when she saw the same type of bug emerge from another bunch of bananas.

4. There was testimony by plaintiff and her witnesses that the produce manager came to the checkout stand after plaintiff was bitten and stated the bug was a banana tarantula. As to the statement made by the produce manager, Mrs. Johnson testified as follows: 'Well, he said he was going to have to do something about the bananas, because the last bunch he had received were full of those tarantulas.' When asked if he made such a statement, he testified he didn't recall making such a statement, which is neither an admission nor a denial but had the effect of leaving plaintiff's evidence in this regard undisputed.

The presence of this injury inflicting bug in the bananas on the premises of the defendant was a dangerous condition. The observation of a similar bug on bananas by employee Barbara Field two days before was notice to the defendant of a probable dangerous condition in bananas being offered for sale to customers. When this is considered in the light of the evidence summarized in the foregoing numbered paragraphs, and the fact that no evidence was presented as to any efforts by any employee of the defendant to protect its customers from injury from this condition, the premise, that the defendant was negligent as a matter of law, is complete.

To further strengthen this premise, we note that in addition to employee Barbara Field's testimony that she had seen a similar type bug emerge from a bunch of bananas prior to the incident here, she also testified, when asked to describe the bug that bit the plaintiff, as follows:

'Well, it was an oval shape type beetle bug, I don't know, it had a lot of legs, and it was more or less a black bug, and I had seen them in the store before.'

It should also be noted that the produce manager testified that he had no knowledge of the previous existence of bugs in the bananas. However, if this testimony is considered with his testimony about not recalling whether or not he made the statement about the tarantulas in the 'last bunch of bananas he had received,' it becomes somewhat impotent, and certainly not convincing. As we view the produce manager's testimony in conjunction with the other evidence in this record, we believe the inferences are strong that the bug that bit and injured the plaintiff, was a tarantula. But, in any event, the produce manager's testimony does not place in dispute the fact that the defendant, through its employee Barbara Field, had notice of the probability of the existence of a dangerous condition in the bananas. Neither this employee, nor any other employee, made any effort prior to the plaintiff's injury to inspect the bananas offered for sale for the purpose of discovering and eliminating such insects. When confronted with the knowledge that insects of this nature might be found in the bananas which it was offering for sale, we believe that a clear duty was imposed upon the defendant to take necessary measures to guard against the possibility of injury to its customers when they handle and select bananas for purchase.

A landowner or business host is liable to a business visitor for harm caused by a hazardous or dangerous condition on his premises if: (a) he knows or by the exercise of reasonable care could discover the condition; (b) has no reason to believe the condition will be discovered by the business visitor; and (c) invites entry upon the land or premises...