Bender v. Nalee, Inc., No. 290

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before HAMMOND; SINGLEY
• Citation: 274 A.2d 85,261 Md. 82
• Parties: Marian BENDER to use of Maryland Hospital Service v. NALEE, INC., t/a Pimlico Hotel.
• Decision Date: 02 March 1971
• Docket Number: No. 290

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261 Md. 82 274 A.2d 85 Marian BENDER to use of Maryland Hospital Service
v.
NALEE, INC., t/a Pimlico Hotel. No. 290. Court of Appeals of Maryland. March 2, 1971.

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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

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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 [274 A.2d 86] 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

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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...