Bingham v. Hillcrest Bowl, Inc., 44727

• Decision Date: 13 May 1967
• Docket Number: No. 44727,44727
• Parties: Olive BINGHAM, Appellee, v. HILLCREST BOWL, INC., a Corporation, Appellant.
• Court: Kansas Supreme Court

Page 591

427 P.2d 591

199 Kan. 40

Olive BINGHAM, Appellee, v. HILLCREST BOWL, INC., a Corporation, Appellant.

No. 44727.

Supreme Court of Kansas.

May 13, 1967.

Syllabus by the Court.

1. Where injury to a business invitee results from a dangerous condition on the premises not created by the proprietor but traceable to persons other than those for whom the proprietor is responsible, proof that the proprietor was negligent with respect to the condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of ordinary care he should have known of it and taken action to remedy it.

2. The existence of contributory negligence in a given case is ordinarily a question of fact, it being for the jury to determine whether the conduct of a party measures up to that expected of a reasonably careful man. It is only when conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person that the question of contributory negligence may be taken from the jury and determined by the court.

3. A business invitee's failure to look out for danger on the premises where there is no reason for an ordinarily prudent person to apprehend any does not constitute contributory negligence.

4. The filing of a motion for new trial is no longer a prerequisite to appellate review under the rules applicable to the new code of civil procedure, and the mere fact that a motion for new trial is filed but certain points stated therein are not argued to the trial court does not preclude appellate review of such points.

5. In an action brought under the provisions of G.S.1961 Supp., 44-504, in the name of the injured employee against a third party tort-feasor-the proprietor of a bowling alley-for injuries alleged to have been sustained when the plaintiff slipped and fell on a wet terrazzo floor inside the entrance to the building, the record is examined, and as more fully set forth in the opinion, it is held, the trial court did not err in: (1) overruling defendant's motions for directed verdict and judgment notwithstanding the verdict for the reasons that (a) there was sufficient evidence to charge the defendant with constructive notice of the dangerous condition of the floor and (b) plaintiff was not contributorily negligent as a matter of law; and (2) its rulings on the admissibility of certain evidence.

Jerry W. Hannah, Topeka, argued the cause, and D. S. Hults, Lawrence, Clayton M. Davis and Mark L. Bennett, Topeka, were with him on the brief for appellant.

John A. Emerson, Lawrence, argued the cause, and Wayne Allphin, Jr., Richard A. Barber and Fred N. Six, Lawrence, were with him on the brief for appellee.

O'CONNOR, Justice.

This action was brought under the provisions of G.S.1961 Supp., 44-504, in the name of the injured employee, Olive Bingham, for her benefit and for the benefit of her employer, Joy'O, Inc., and its insurance carrier, Royal Indemnity Company, against a third party tort-feasor, Hillcrest Bowl, Inc., seeking to recover damages for personal injuries received by the plaintiff when she slipped and fell in defendant's bowling alley.

The case was previously before this court in Bingham v. Hillcrest Bowl, Inc., 193 Kan. 201, 392 P.2d 942, and we held that the petition stated a good cause of action, and the action was properly brought in plaintiff's name under the mentioned statute. Subsequently, issues were joined, the case was tried to a jury and resulted in a verdict in favor of plaintiff in the amount of $13,066. Defendant has appealed, contending (1) there was no evidence that it had actual or constructive notice of the alleged dangerous condition of the floor; (2) plaintiff was contributorily negligent as a matter of law; and (3) the trial court erred in certain rulings regarding the admissibility of evidence.

Summarily, the facts are that on May 6, 1960, a damp, misty morning-rain having commenced about 8:00 a. m.-plaintiff was delivering a tray of doughnuts about 11:00 or 11:30 a. m. to her employer's restaurant concession located in the bowling alley owned and operated by the defendant. A few feet inside the entrance to the building plaintiff slipped on the wet terrazzo floor, her feet went out from under her and she fell, landing on her coccyx. Hattie Wells, a waitress at the restaurant, looked up from the customers she was serving when she heard plaintiff cry out, and saw her lying on the floor a few feet inside the entranceway to the bowling alley. Mrs. Wells went to plaintiff's assistance and called an ambulance. Plaintiff was taken to a hospital. The injuries sustained by plaintiff as a result of her fall necessitated spinal surgery and extensive hospitalization.

The record discloses that the bowling alley had been opened to the public at approximately 8:30 a. m., and at the time of the accident there were a number of bowlers inside the building. It had been raining intermittently throughout the morning, and there was moisture on the sidewalk and pavement as well as on the floor inside the building. A person entering the bowling alley was required to cross a recessed rubber foot mat and then a strip of terrazzo floor before reaching the carpeted concourse. Customarily, when the weather was damp or wet, a rubber, non-skid runner was unrolled across the terrazzo area. On previous wet days when plaintiff had made deliveries to the bowling alley this runner had been so laid, and she was accustomed to its being in place. At the time of plaintiff's fall, however, the runner was not down, but was put down shortly afterwards, and since has been laid regularly on wet days. The manger of the bowling alley was not on duty at the time of plaintiff's fall, and there was no evidence showing that the tracked-in moisture had been wiped from the terrazzo floor during this three-hour period, or that the floor had been otherwise maintained.

The defendant moved for a directed verdict at the end of plaintiff's evidence and also at the close of all the evidence. The court reserved ruling on these motions and submitted the matter to the jury. The jury returned a verdict for the plaintiff and, in answer to special questions, found the defendant was negligent in

'Failure to provide proper maintenance to entryway floor areas. Failure to provide a non-slip walkway during periods of precipitation.'

and that plaintiff was not contributorily negligent. Again the defendant moved for judgment notwithstanding the verdict, and joined with it a motion for new trial pursuant to K.S.A. 60-250(b). Defendant's several motions were overruled.

Defendant's principal points on appeal deal directly with the propriety of the trial court's denying the defendant's motions for directed verdict and motion for judgment notwithstanding the verdict. In testing the sufficiency of evidence as against such motions, the evidence and the inferences that can reasonably be drawn therefrom must be considered in the light most favorable to the party against whom the motion is directed; and if the evidence and the inferences viewed in that manner are of such character that reasonable minds may reach different conclusions thereon, the motion for directed verdict should be overruled and the issues submitted to the jury. (Williams v. Benefit Trust Life Ins. Co., 195 Kan. 579, 408 P.2d 631; First National Bank in Dodge City v. Keller, 193 Kan. 581, 396 P.2d 304; Schmatjen v. Alexander, 192 Kan. 807, 391 P.2d 313.)

Defendant first contends the trial court erred in not sustaining defendant's motions for the reason the evidence failed to show it had actual or constuctive notice of the alleged dangerous condition which caused plaintiff's fall.

We note that defendant concedes plaintiff was a business visitor, or invitee. Therefore, the defendant, as a proprietor, was under a duty to use ordinary care to keep in a reasonably safe condition those portions of its premises which could be expected to be used by invitees. (See Smith v. Mr. D's, Inc., 197 Kan. 83, 415 P.2d 251.) Where injury to a business invitee results from a dangerous condition not created by the proprietor but traceable to persons other than those for whom the proprietor is responsible, proof that the proprietor was negligent with respect to the condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of ordinary care he should have known of it and taken action to remedy it. (Smith v. Mr. D's, Inc., supra; Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P.2d 767; Hein v. Mills Building Co., 190 Kan. 198, 372 P.2d 994; Little v. Butner, 186 Kan. 75, 348 P.2d 1022.)

Defendant argues that there was no evidence about the amount of water on the floor, how long or how much it had been raining, or that defendant knew or should have known of the presence of the water, and relies on what was said in Parks v. Montgomery Ward & Co., 198 F.2d 772 (10th Cir. 1952), Hein v. Mills Building Co., supra, and Relahan v. F. W. Woolworth Co., 145 Kan. 884, 67 P.2d 538. In Parks, the plaintiff slipped and fell on a floor which had become slippery due to water from the clothing and shoes of persons coming into the defendant's store. It had been raining almost continuously since 6:00 a. m. until about 11:00 a. m., when the accident occurred. There was no evidence when the store opened for business. Applying Kansas law, the court held that plaintiff failed to establish actionable negligence on the part of the defendant, and observed as follows:

'* * * There was no showing as to how long the condition had existed, whether defendant had actual knowledge of its existence, or whether the floor had been mopped from time to time during the morning. There was an absence of any showing that it was a common practice or precaution of prudent merchants under similar circumstances to keep a mat or other covering on the floor. * *...