Bitsos v. Red Owl Stores, Inc.

• Decision Date: 24 April 1972
• Docket Number: No. 71-1270,71-1271.,71-1270
• Citation: 459 F.2d 656
• Parties: Anthony (Tony) BITSOS, Appellee, v. RED OWL STORES, INC., Appellant. Anthony (Tony) BITSOS, Appellant, v. RED OWL STORES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

459 F.2d 656 (1972)

Anthony (Tony) BITSOS, Appellee, v. RED OWL STORES, INC., Appellant.

Anthony (Tony) BITSOS, Appellant, v. RED OWL STORES, INC., Appellee.

Nos. 71-1270, 71-1271.

United States Court of Appeals, Eighth Circuit.

Submitted November 18, 1971.

Decided April 24, 1972.

COPYRIGHT MATERIAL OMITTED

Gerald L. Reade, John R. Kabeiseman, Brady, Kabeiseman, Light & Reade, Yankton, S. D., for Anthony (Tony) Bitsos.

Timothy J. Nimick, Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for Red Owl Stores, Inc.

Before GIBSON and HEANEY, Circuit Judges, and VAN PELT,^* Senior District Judge.

HEANEY, Circuit Judge.

This is a diversity case in which the plaintiff, Anthony (Tony) Bitsos, brought suit against Red Owl Stores, Inc., for physical injuries sustained in a fall on Red Owl's premises while Bitsos was there as a business invitee.

Bitsos was self-employed in the refrigeration business. The defendant, Red Owl, is a supermarket chain with a store located in Yankton, South Dakota, where the accident occurred. On Sunday morning, August 18, 1968, by prior arrangement with Red Owl's manager, Donald Krenos, Bitsos went to the Red Owl supermarket to clean out the refrigeration system. Krenos was present in the store throughout the morning.

Bitsos' work required him to be in the basement of the store, where the refrigeration equipment was located. The stairs to the basement were located in the rear of the store in close proximity to a garbage room, produce area, and two walk-in coolers, one for dairy products and one for frozen foods. Also located in the basement were an employees' coffee room and rest rooms which were available to the public upon request.

Bitsos made five or six trips up and down the stairs before he fell on them and sustained the injuries for which he brought this action. He fell at either the first or second step as he was going down the stairs. He testified that his foot went out from underneath him, that he reached to grab hold of something but couldn't get hold of anything, and that he twisted and rolled the rest of the way down the stairs. After lying at the bottom of the steps for a few minutes, Bitsos looked at the bottom of his shoe and saw there "a slimy green substance, * * * some form of produce, either lettuce or cabbage or something on that order, * * * a produce type vegetation * * *." Bitsos reported the accident to Krenos.

A carton carrier was hanging on the left handrail. There was no handrail on the right side. Two boards, approximately one foot in width each, were placed on the right side of the stairs to form a slide for boxes. The stairway was poorly lighted.

As a result of this fall, Bitsos developed severe disabilities. The jury rendered a $152,000.00 verdict in his favor. Red Owl moved for judgment n. o. v. and for a new trial. The District Court denied both motions and Red Owl appealed to this Court.¹

On appeal, Red Owl contends:

(I) there was insufficient showing that Red Owl was negligent in the performance of the duty it owed to Bitsos;

(II) Bitsos is barred from recovery because, with knowledge equal or superior to that of Red Owl with respect to the condition of the stairs, he was guilty of contributory negligence or, alternatively, he assumed the risk by continuing to use the stairs;

(III) the trial court erred in instructing the jury on comparative negligence;

(IV) the trial court gave erroneous instructions on Red Owl's duty in maintaining its premises; and

(V) the trial court erroneously admitted evidence of additional safeguards which could have been provided by Red Owl.

We consider these contentions seriatim.

I

The duty of a possessor of land to a business invitee in South Dakota is set forth in Norris v. Chicago, M. St.P. & P. R. Co., 51 N.W.2d 792, 793 (S.D. 1952), as follows:

"* * * A possessor of land owes an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety and is liable for breach of such duty. This, however, is the extent of the duty. The possessor of land is not an insurer as to the safe condition of the premises. It is necessary that it be established that the possessor had knowledge of the presence of the dangerous condition of his premises or that the condition existed for such a period of time as to justify the inference that he had knowledge of its existence. * * *"

The defendant contends that, under the Norris standard, there was not sufficient evidence of negligence with respect to these specific alleged negligent acts:

(1) that there was a foreign substance on the stairs for which the defendant was responsible;

(2) that the lighting in the stairway was inadequate;

(3) that the left handrail was obstructed and that the defendant was negligent in not having a right handrail; and

(4) that the stairs were maintained in a defective condition.

As our discussion of the evidence will indicate, Bitsos' case was not strong. Nevertheless, we believe the evidence was sufficient to present to the jury the issues raised. We reach this conclusion bearing in mind that the trial court should enter a judgment n. o. v. only if the evidence was such that reasonable minds could not differ on the conclusions to be drawn from it. Minnesota Mutual Life Insurance Company v. Wright, 312 F.2d 655 (8th Cir. 1963); Hanson v. Ford Motor Company, 278 F.2d 586 (8th Cir. 1960). This Court is to review the evidence in the light most favorable to sustaining the jury's findings, giving to Bitsos the benefit of every reasonable inference to be drawn from the evidence. Figge Auto Co. v. Taylor, 325 F.2d 899 (8th Cir. 1964); MacDonald Engineering Company v. Hover, 290 F.2d 301 (8th Cir. 1961).

We turn to Red Owl's argument with respect to each alleged item of negligence.

Foreign Substance on the Stairs

Red Owl argues that there was no foreign substance on the stairs. While it is true that no witnesses saw a foreign substance there, that possibility was not precluded by the evidence. There was circumstantial evidence from which the jury could have found that Bitsos had not picked up the substance elsewhere. See, Donoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434 (Ill. 1958). There was further circumstantial evidence tending to establish that the foreign substance had been laying on the steps. The plaintiff introduced evidence that the stairs were located in an area through which produce regularly moved. Bitsos had not seen produce in the main area of the store. One witness, who periodically maintained some of Red Owl's equipment, testified that prior to August 18, 1968, he had seen vegetable matter on the steps. He had fallen down the steps within the year before Bitsos' fall and had told Krenos to clean the stairs if he wanted the work done. He had slipped and fallen on one or two occasions and had complained to the man in the meat department. Krenos testified that cleaning practices were irregular and were left up to the fruit man and the kids. He stated that he knew that the back area had been cleaned on Saturday night, but he did not observe the cleaning process himself and did not know who had done it. There is no evidence that Krenos inspected the floor and stairway to be certain that an adequate job had been done.

On the basis of this evidence, the question of the presence of a foreign substance on the stairs, or sufficiently near them to cause the accident, was properly submitted to the jury. Red Owl's responsibility for the foreign substance was also sufficiently established. See, Pogue v. Great Atlantic and Pacific Tea Company, 242 F.2d 575 (5th Cir. 1957); McKenney v. Quality Foods, 156 Cal.App.2d 349, 319 P.2d 448 (1957).

Red Owl also argues that Bitsos was aware of the conditions and, therefore, cannot recover under the Norris standard. The evidence does not support this contention, in that there was no showing that Bitsos had either actual or constructive knowledge that there was a foreign substance on the steps. On the contrary, the evidence was strong that the poor lighting in the stairwell would have prevented him from seeing a foreign substance there. When the condition which causes the harm is hidden from the plaintiff, we do not believe he can be charged with knowledge of that condition. Cf., Daleiden v. Carborundum Company, 438 F.2d 1017 (8th Cir. 1971).

Finally, Red Owl claims that Bitsos did not show that it had knowledge of a foreign substance on the stairs, as required by Norris. But under Norris, it is sufficient if the plaintiff show "* * * that the condition existed for such a period of time as to justify the inference that the defendant had knowledge of its existence. * * *" The condition of produce immediately after it is slipped upon is of probative value in determining the length of time it was on the floor. Ramsey v. Great Atlantic and Pacific Tea Company, 408 F.2d 89 (3rd Cir. 1969); Elrod v. Walls, Inc., 205 Kan. 808, 473 P.2d 12 (1970). Bitsos testified that the vegetation on his shoe was fairly old and was a greenish brown color.

We conclude that this issue was properly submitted to the jury.

Inadequate Lighting

Red Owl claims that Bitsos did not sustain his burden with respect to his claim that inadequate lighting in the stairwell was a partial cause of his fall. Red Owl bases its argument on Bitsos' statement that he could see the stairs.

But even Red Owl states that the lighting would be a proximate cause of the accident if Bitsos proved (1) that the lighting was so inadequate that he could not see the foreign substance, and (2) that the substance was there long enough to give Red Owl notice of its presence. The second element was sufficiently established, as discussed in the preceding section.

There was ample evidence that the lighting in the stairway was poor enough to hide the foreign substance from view. Bitsos characterized the lighting as "poor, with shadows on the steps." Other witnesses stated that it was "dim," "fairly dim," "fairly poor," ...