Diller v. Safeway Stores, Inc.

Citation548 P.2d 1304,274 Or. 735
PartiesDaniel DILLER, Appellant, v. SAFEWAY STORES, INC., Respondent.
Decision Date22 April 1976
CourtSupreme Court of Oregon

Robert C. Robertson, Medford, argued the cause for appellant. With him on the briefs were Van Dyke, DuBay, Robertson, Paulson & Hilts, P.C., Medford.

Paul E. Geddes, of Geddes, Walton, Richmond, Nilsen & Smith, Roseburg, argued the cause and filed a brief for respondent.

Before O'CONNELL, C.J., and HOLMAN, TONGUE HOWELL and BRYSON, JJ.

HOWELL, Justice.

This is an action to recover damages for injuries sustained by plaintiff when he slipped and fell in defendant's store. A jury returned a verdict for plaintiff; however, the trial court granted a judgment n.o.v. for the defendant, and plaintiff appeals.

The evidence is viewed in the light most favorable to plaintiff. McVaigh v. Sandberg, 266 Or. 409, 513 P.2d 801 (1973).

Plaintiff was walking through the produce section of defendant's store when he slipped and fell near a section containing lettuce. The lettuce was packed in ice. When plaintiff fell he felt something like ice under him, and the back of his pants were wet when he got up. There was evidence that the floor was vinyl tile and that plaintiff was wearing low-heeled boots. There was also testimony that someone picked up a small piece of lettuce after plaintiff had fallen and that there was also some water on the floor which was later mopped up by an employee. There was further testimony that after the incident one of defendant's employees indicated that the water should have been mopped up previously.

The accident occurred about 8:30 p.m. There was evidence that it was store policy to sweep the aisle in the produce section every 15 to 30 minutes, but the aisle apparently had not been swept after 7:30 p.m. There was also evidence that defendant knew that ice and water could get on the floor from the lettuce case and that the floor became slippery when wet.

Two allegations of negligence on the part of the defendant were submitted to the jury:

'In permitting the ice or water to remain on the floor for a long period of time which the Defendant knew, or should have known, existed at that time and place.

'In failing to warn the plaintiff of the dangerous conditions existing on the store premises which the defendant knew or should have known existed at that time and place.'

Plaintiff concedes that he did not establish any proof that defendant's employees were responsible for placing any water or ice on the floor, but plaintiff argues that there was a jury question as to whether defendant knew or should have known of the water or ice or the floor and that defendant failed to use reasonable diligence to remove it.

Plaintiff relies on Pribble v. Safeway Stores, 249 Or. 184, 437 P.2d 745 (1968), and Collins v. Kienow's Food Stores, 251 Or. 16, 444 P.2d 546 (1968). In both cases, the plaintiff fell on a wet and slippery entranceway to the defendant's store, and there was evidence that the defendant actually knew of the existence of the water on the floor. Also, in each of those cases we mentioned that mats or rugs were commonly used to prevent entranceways from becoming wet and slippery from customers coming in from the rain.

In this case there was no evidence that at any time prior to the accident any of defendant's employees actually knew that ice and water had been spilled on the floor. Moreover, the fact that the store's log book showed that the floor had not been swept for over an hour before the accident does not raise an inference that defendant should have known the water or ice was there and should have removed it in the exercise of reasonable diligence. It is just as reasonable to assume that the substance was spilled immediately before the accident as it is to assume it was spilled substantially earlier. Weiskopf v. Safeway Stores, Inc., 271 Or. 630, 533 P.2d 347 (1975).

Plaintiff, however, contends that the jury could have inferred that the ice had been dropped on the floor by a customer who had been handling the lettuce. Plaintiff argues that the jury could also infer that the ice had remained on the floor for an unreasonable length of time before the accident occurred. This second inference is to be drawn from testimony that there was a small puddle of water on the floor shortly after the accident. Plaintiff's theory is that the puddle was formed by melted ice and that the ice must have remained on the floor an unreasonable length of time in order to form the puddle. However, it is at least as reasonable to assume that both the water and the ice were dropped on the floor at the same time while the lettuce was being handled. In the absence of proof from which a reasonable inference can be drawn as to how long the substance was on the floor, there is no basis for a finding of negligence. See Weiskopf v. Safeway Stores,supra; Pavlik v. Albertson's, Inc., 253 Or. 370, 454 P.2d 852 (1969); George v. Erickson's Supermarket, Inc., 236 Or. 64, 386 P.2d 801 (1963).

Plaintiff also relies on the decision of this court in Bertrand v. Palm Springs and European Health Spa, Inc., 257 Or. 532, 480 P.2d 424 (1971). There, plaintiff was injured when she slipped and fell on the wet surface of a locker room near a swimming pool. However, in that case there was evidence that the defendant knew that water commonly gathered on the floor and that the defendant had used indoor-outdoor carpeting in other areas of the building to prevent those surfaces from becoming slippery. It is also significant that in Bertrand one of the allegations of negligence concerned defendant's failure to use a nonskid surface or carpeting on the floor.

In this case plaintiff made no similar allegation, and no evidence was received regarding defendant's failure to use matting or other nonskid material in the produce section. The only theories of negligence raised by this case and submitted to the jury concerned (a) defendant's failure to discover and correct the unsafe condition within a reasonable time, and (b) defendant's failure to warn of the unsafe condition. These are the only specifications of negligence before us in this appeal, and, therefore, we need not consider what other theories of negligence might have been applicable to these facts if they had been raised by the pleadings, subjected to proof at the trial and submitted to the jury under the court's instructions. 1

We conclude that in this case there was no evidence that the ice and water had been on the floor for such a length of time that defendant, by reasonable diligence, should have discovered and removed it. Nor was there any other evidence of negligence. Therefore, the trial court properly granted the judgment n.o.v. Cowden v. Earley, 214 Or. 384, 327 P.2d 1109 (1958).

Affirmed.

TONGUE, Justice (dissenting).

The controlling issue in this case, according to the majority, is whether there was any substantial evidence from which the jury could have properly found, as it apparently did, that defendant knew or should have known of the ice of water on the floor on which plaintiff claims to have slipped.

Thus, the majority ends its opinion by stating that:

'We conclude that in this case there was no evidence that the ice and water had been on the floor for such a length of time that defendant, by reasonable diligence, should have discovered and removed it. * * *'

In support of this conclusion the majority cites Weiskopf v. Safeway Stores, 271 Or. 630, 533 P.2d 347 (1975); Pavlik v. Albertson's, Inc., 253 Or. 370, 454 P.2d 852 (1969); George v. Erickson's Supermarket, Inc., 236 Or. 64, 386 P.2d 801 (1963). In all of those cases plaintiff slipped upon some substance at or near the entrance or exist of the store or after the plaintiff had passed through the check stand in leaving the store. None of them involved a customer who slipped and fell on water, ice, or a fragment of produce at or near a self-service produce rack, as in this case.

Courts of other states have recognized a vital distinction between such cases and those involving facts such as Weiskopf, Pavlik and George and have applied to such cases the well recognized rule, as stated in 61 A.L.R.2d 6, 23--4 (1958), that:

'* * * (W)here the floor condition is one which is traceable to the proprietor's own act--that is, a condition created by him or under his authority--or is a condition in connection with which the proprietor is shown to have taken action, no proof of notice is necessary.'

Among the cases applying that rule to cases involving similar facts in Torda v. Grand Union Co., 59 N.J.Super. 41, 157 A.2d 133 (1959), in which a customer slipped and fell on either water or a vegetable leaf near a self-service vegetable bin, which was filled daily with ice, upon which vegetables were placed, as in this case. In reversing the granting of an involuntary dismissal the court said (at 135--36):

'Defendant argues that it was inferable that the water fell to the floor as the result of the handling by the customers of wet vegetables which they had taken from the bin. We accept this premise. It is then urged that such finding could not be made the basis of liability unless it was established that the defendant had notice, actual or constructive, of the presence of the water. With this we cannot agree since the fact finders might reasonably have concluded that the hazard to business invitees, thus engendered constituted a risk of harm within the reasonable foresight of defendant and therefore it should have employed a method of refrigeration to obviate this danger or should have taken other means of keeping the floor in a reasonably safe condition. See 2 Harper & James, The Law of Torts, § 16.5, at p. 915 (1956). * * *'

To the same effect, it was held in Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966), under similar facts (at 514):

'When greens are sold from open bins on a self-service basis,...

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