Allen v. Federated Dairy Farms, Inc., 13894

• Decision Date: 03 July 1975
• Docket Number: No. 13894,13894
• Citation: 538 P.2d 175
• Parties: Elmer O. ALLEN, Plaintiff and Appellant, v. FEDERATED DAIRY FARMS, INC., and Albertson's Inc., Defendants and Respondents.
• Court: Utah Supreme Court

Page 175

538 P.2d 175

Elmer O. ALLEN, Plaintiff and Appellant, v. FEDERATED DAIRY FARMS, INC., and Albertson's Inc. Defendants and Respondents.

No. 13894.

Supreme Court of Utah.

July 3, 1975.

Richard H. Thornley of Froerer, Horowitz, Packer, Thornley, Critchlow & Jensen, Odgen, for plaintiff and appellant.

Leonard H. Russon of Hansen, Wadsworth & Russon, Daniel A. Alsup, Salt Lake City, for defendants and respondents.

CROCKETT, Justice:

Plaintiff Elmer O. Allen sued for injuries suffered when he slipped on some cottage cheese on the floor of defendant Albertson's store in Roy, Utah, which apparently came from samples being given to customers by defendant Federated Dairy Farms, Inc. On the basis of the pleadings, depositions and documentary evidence, the court granted the motion of both defendants for summary judgment on the ground that upon the plaintiff's own contentions as to the facts and the law applicable thereto, he could show no entitlement to redress. Plaintiff appeals, arguing that there are disputed issues of fact which should have been submitted to the jury, and which, if resolved in his favor would entitle him to recover. ¹

It was about 2:30 in the afternoon of March 3, 1973, after plaintiff and his wife had been in defendant's store shopping for some little time, that he slipped and fell on the cottage cheese. Neither the plaintiff nor his wife, nor any of the store personnel had seen any cottage cheese on the floor prior to the incident. Thus the only way to determine how it got there, or how long it had been there, is by inference or conjecture. However, a few feet away from the spot, a lady demonstrator for defendant Federated Dairy was passing out samples of cottage cheese on small (one-inch square) crackers. Because no one saw any other cottage cheese on the floor either before or after the incident, the reasonable inference is that some customer had spilled it.

Plaintiff recognizes the difficulties confronted in a case such as this based on the law as established by prior rulings of this court. ² But he argues with some ardor that this court should adopt a more 'liberal' rule in what he refers to as slip-and-fall cases. In this context, and in our conception of justice, the use of the term 'liberal' is somewhat puzzling. If two men claim ownership of an apple (or any other property), with whom can justice be liberal? Should it be liberal in this case with the valued and appreciated entrepreneur store operator, who is carrying on the business of the community, rendering a service to the public, and creating employment, or with the equally valued and appreciated customer, who is the life blood of the store and of commerce; and who comes in to select items of merchandise from a variety of displays which occupy his attention; and who is indeed entitled to assume that the floor of the store is safe to walk on? ³

The answer, it seems to us, is that the word 'liberal' has no proper application to such a situation, but that the correct policy is to accord fair and evenhanded justice to both by assuring to each the remedies and protections that the established rules of law give him; and when loss or injury occurs, to let it rest where it falls, unless it is affirmatively shown that another was at fault; and that that was the cause of the injury.

In order to analyze the plaintiff's argument, consistent with the objective just stated, particularly as to the matter of the knowledge of the defendant of any danger and his duty to remedy it, it is appropriate to observe that these slip-and-fall cases have usually been regarded as falling into either one or the other of two different classes.

The first involves some unsafe condition of a temporary nature, such as a slippery substance on the floor and usually where it is not known how it got there. In this class of cases it is quite universally held that fault cannot be imputed to the defendant so that liability results therefrom unless two conditions are met: (A) that he had knowledge of the condition, that is, either actual knowledge, or constructive knowledge because the condition had existed long enough that he should have discovered it; and (B) that after such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have remedied it.

The second class of cases involves some unsafe condition of a permanent nature, such as: in the structure of a building, or of a stairway, etc. or in equipment or machinery, or its manner of use, which was created or chosen by the defendant (or his agents), or for which he is responsible. In such circumstances, where the defendant either created the condition, or is responsible for it, he is deemed to know of the condition; and no further proof of notice is necessary.'

Applying the principles of law just stated to the undisputed facts here, it seems so plain as not to require elaboration that the plaintiff could not make out a cause of action under the first class of cases described above. This because there is no evidence, nor any basis from which a fair inference could be drawn, that the defendant had knowledge of the cottage cheese on the floor, nor any opportunity to remove it.

Such plausibility as there may be to the plaintiff's claim therefore must be considered as coming within the second class of cases. His argument is that there is a basis upon which the defendants could be found negligent because of the method by which they chose to give out the samples of cottage cheese. He says that it should have been foreseen that placing it on small crackers would result in some spilling and/or rejection by some customers so that some of it would end up on the floor. He suggests what he thinks would have been a more desirable alternative: that the cottage cheese could have been placed in paper cups. Defendant correctly rejoins that paper cups are not as tasty as crackers; and moreover, instead of being consumed, they would remain as residue which would more likely be cast on the floor and create hazards.

The distinction between the two classes of cases discussed above and their application to the instant situation is illustrated by the case of Maugeri v. Great Atlantic and Pacific Tea Co., ⁵ upon which plaintiff places reliance. Although it involves a temporary situation in that the fall was on some vegetable leaves in front of a produce counter, it also comes within the second class of cases above referred to. It was pointed out that in their permanent structure the vegetable racks were slanted in such a way that it should have been anticipated that leaves would fall on the floor. But in our case there is no showing of any dangerous condition of a permanent nature. Other cases, similarly distinguishable because of facts significantly different from the instant one, were commented upon in our recent case of Long v. Smith Food King. ⁶

The plaintiff's fall and his injuries are indeed regrettable. Nevertheless, in accordance with our view of justice under the law as pointed out herein, we think the trial court correctly ruled that even under the facts as contended by the plaintiff, there is no basis shown upon which to place the blame and shift the responsibility for loss to the defendants. We therefore conclude he was justified in granting their motions for summary judgment.

Affirmed. Costs to defendants (respondents).

HENRIOD, C.J., and ELLETT, J., concur.

MAUGHAN, Justice (dissenting).

Respectfully, I dissent.

With the legal analysis, of the main opinion, I cannot agree. This is not a typical slip and fall case, wherein plaintiff alleges a dangerous condition on the premises, of which defendant, in the exercise of due care, knew or should have known and remedied. In this action plaintiff correctly alleges that defendants were engaged in an activity, viz., dispensing cottage cheese and that this activity was conducted in a negligent manner, which caused plaintiff serious bodily injury. Plaintiff alleged that defendants were negligent in dispensing cottage cheese in a busy food market, knowing that it would be served to children and adults alike, and that there would be a reasonable likelihood of it being spilled on the floor, creating a hazard for the patrons using the market.

Plaintiff does not urge that the distribution of food samples is negligent conduct per se, but that this activity involves a foreseeable risk of harm to patrons of the store, unless certain reasonable measures are taken to protect those using the premises. As evidentiary facts to support his claim that defendants had not fulfilled their duty of due care, plaintiff cites (1) the failure to maintain waste receptacles throughout the store where one could deposit unwanted cottage cheese (the only waste receptacle was located by the table where the cottage cheese was being dispensed); (2) no regularly established procedure, for inspection and clean up during these demonstrations, although an agent of defendant Albertson conceded that after a demonstration, it was his experience that unwanted samples...