Bender v. Nalee, Inc.

Decision Date02 March 1971
Docket NumberNo. 290,290
Citation274 A.2d 85,261 Md. 82
PartiesMarian BENDER to use of Maryland Hospital Service v. NALEE, INC., t/a Pimlico Hotel.
CourtMaryland Court of Appeals

John J. Hirsch, Baltimore (Paul E. Gaeng and Elizabeth M. Eckhardt, Baltimore, on the brief), for appellant.

Samuel S. Smalkin and John F. Linsenmeyer, Baltimore, for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

SINGLEY, Judge.

Mrs. Marian Bender, the appellant here and plaintiff below, had for more than 20 years visited the Pimlico Hotel, a restaurant owned and operated by Nalee, Inc., 'practically every day' during the spring and fall racing seasons at Pimlico. On some occasions she would use the Park Heights Avenue entrance, at other times the Hayward Avenue entrance, both of which were nearly identical. On a Saturday afternoon in December of 1965, as she was leaving the restaurant by the Hayward Avenue entrance, she tripped on a perforated rubber mat placed at the top of seven stone steps leading to the sidewalk, and fell down the steps. Mrs. Bender instituted suit for damages in the Baltimore City Court. At the conclusion of the testimony the trial court reserved ruling on the defendant's motion for a directed verdict and fully charged the jury on the issues of negligence and contributory negligence. When the jury returned a verdict in Mrs. Bender's favor, the defendant countered with a motion for a judgment non obstante veredicto, or alternatively, for a new trial. From the granting of a judgment n. o. v., Mrs. Bender has appealed.

In considering on appeal a defendant's motion for judgment n. o. v., 'the evidence and all reasonable inferences to be taken from that evidence must be reviewed in the light most favorable to the plaintiff.' Lloyd v. Bowles, Md.App., 273 A.2d 193 (1971). Mrs. Bender testified that on the day of the accident, she parked her car on the hotel's parking lot; paid a parking charge of $2.00, which was refundable, and went to the bar of the hotel to leave the check for her car with the bartender. After speaking briefly to an acquaintance, Mrs. Bender left the hotel by the Hayward Avenue entrance, intending to join her husband, who was waiting outside. Mrs. Bender told what happened next:

'Well, I opened the door to go out, I pushed the door and took two steps, and immediately my heel, I felt my heel catch, and I went face first down the steps. I couldn't find anything to grab on to. There was just nothing there to grab on to. I landed face first down on the bottom, * * * with my hand (in front of my face).'

Mrs. Bender testified that after her fall, she saw her shoe at the top of the steps. On cross examination, Mrs. Bender said that she 'didn't think about a mat being there' and later explained this by saying:

'I said, I didn't look down. I never noticed the mat. The only reason I know there was a mat because when I was on the ground I looked up and I saw my heel stick out, and I knew I had stumbled on the mat.'

As we shall explain, it is impossible on the record before us to determine with any precision the size of the perforations in the mat about which Mrs. Bender complains, or the sort of shoe she was wearing.

Mr. Leon Shavitz, the president of Nalee, Inc., testified that the perforated mat was about 70 inches deep and 39 inches wide; that the mat had been replaced periodically, was in 'good shape' at the time of the accident; that it 'was a similar mat to the kind of mat that (was) used by restaurants all over the country'; that although he readily conceded that it was possible for a woman in spike heels to catch her heel in the mat, between 750 and 1,000 people patronize the restaurant each weekday and 'thousands' of women had walked over the mat, or one like it, and Mrs. Bender was the first to fall. There was no testimony that anything was wrong with the mat, and photographs introduced in evidence show a mat twice as wide as it was deep, with no sign of wear.

Oddly enough, there was no testimony as regards the size of the perforations, nor was the shoe worn by Mrs. Bender offered as an exhibit. She showed the jury the shoe she was wearing on the day of the trial, and testified that it was similar to that she was wearing when the accident occurred. Judge Perrott, before whom the case had been tried below, who had seen the shoe, described it, in the opinion which he had filed when granting the motion for judgment n. o. v., as a 'spike heel.'

Forty years ago, in the case of Weidman v. Consolidated Gas Elec. Light & Power Co., 158 Md. 39, 148 A. 270 (1930) this Court dealt with the problem of a plaintiff whose foot caught in a rubber mat. In finding the defendants free from liability, the Court said:

'The defendants, however, were not insurers, and the burden of proof was upon the plaintiff to show, in addition to the happening of the accident, some independent circumstances of fault on the part of the owner and tenant, or of either, that were the proximate cause of her injury. Arnold v. Green, 95 Md. 217, 230, 52 A. 673. In this she failed. The surface of the passageway was not defective. ...

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4 cases
  • Ramseur v. U.S.
    • United States
    • U.S. District Court — District of Maryland
    • October 31, 2007
    ...under the circumstances. Def.'s Mem., at 9. "[A] perforated mat, in and of itself, is not dangerous." Id. at 8 (citing "See Bender v. Nalee , 274 A.2d 85, 88 (1971) (affirming grant of JNOV for defendant where plaintiff fell after her heel was caught in perforated rubber The undisputed fact......
  • Jackson v. A.M.F. Bowling Centers, Inc.
    • United States
    • U.S. District Court — District of Maryland
    • January 23, 2001
    ...him outside, where he was subject to attack. A business owner, however, is not an insurer of an invitee's safety. Bender v. Nalee, Inc., 261 Md. 82, 87 274 A.2d 85, 87 (1971) (citing Honolulu Ltd. v. Cain, 244 Md. 590, 595, 224 A.2d 433 (1966)). In order for Defendant to be held liable, it ......
  • Nigido v. First Nat. Bank of Baltimore
    • United States
    • Maryland Court of Appeals
    • March 9, 1972
    ...v. Marian, 347 Pa. 213, 32 A.2d 18 (1943). For fuller and later expositions of the status of business invitees see Bender v. Nalee, Inc., 261 Md. 82, 274 A.2d 85 (1971), Leannarda v. Lansburgh's Department Store, 260 Md. 701, 273 A.2d 149 (1971), and Western Maryland Ry. Co. v. Griffis, 253......
  • Tolbert-Boyd v. MGM Nat'l Harbor, LLC
    • United States
    • U.S. District Court — District of Maryland
    • August 17, 2020
    ...risk of injury while on its premises." Jackson v. A.M.F. Bowing Ctrs., Inc., 128 F.Supp.2d 307, 313 (D.Md. 2001) (citing Bender v. Nalle, Inc., 261 Md. 82, 87 (1971) and Litz v. Hutzler Bros. Co., 20 Md.App. 115, 122 (1974)). Where such notice exists, courts in other jurisdictions have gene......

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