Bloom v. Fry's Food Stores, Inc., 1

• Decision Date: 01 September 1981
• Docket Number: No. 1,CA-CIV,1
• Citation: 130 Ariz. 447,636 P.2d 1229
• Parties: Harry BLOOM and Jean Bloom, Plaintiffs-Appellants, v. FRY'S FOOD STORES, INC., Defendant-Appellee. 5064.
• Court: Arizona Court of Appeals

Page 1229

636 P.2d 1229

130 Ariz. 447

Harry BLOOM and Jean Bloom, Plaintiffs-Appellants, v. FRY'S FOOD STORES, INC., Defendant-Appellee.

No. 1 CA-CIV 5064.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 1, 1981.

Rehearing Denied Sept. 29, 1981.

Review Denied Nov. 3, 1981.

Jennings, Kepner & Haug by Robert A. Scheffing, John C. Rea, Carolyn Kaluzniacki, Phoenix, for plaintiffs-appellants

Benjamin C. Thomas and O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P. A. by Larry L. Smith, Phoenix, for defendant-appellee.

OPINION

O'CONNOR, Judge.

The plaintiff-appellant, Harry Bloom, slipped and fell in one of the appellee's self-service supermarkets. Appellant alleged that he slipped on a grape and that appellee was negligent in stacking bunches of grapes loosely in a display bin. After the parties engaged in discovery, appellee moved for summary judgment, contending that appellant had failed to show that it had the requisite actual or constructive notice of a dangerous condition. The trial court granted appellee's motion. We reverse.

In reviewing a summary judgment, we must view the facts and the record in the light most favorable to the party opposing the motion. Anderson v. Mobile Discount Corp., 122 Ariz. 411, 595 P.2d 203 (App.1979). Summary judgment is proper only if the record, and all reasonable inferences to be drawn therefrom, disclose no genuine issue of material fact. Ferree v. City of Yuma, 124 Ariz. 225, 603 P.2d 117 (App.1979).

The accident occurred on October 6, 1978 at appellee's store located at the intersection of 51st Avenue and Indian School Road in the City of Phoenix. The store opens each morning at 8:00 A.M. Appellant, Bloom, testified in deposition that he arrived at the store at about 8:40 A.M., and went to the produce department. Bunches of grapes were stacked loose in a display bin or case, adjacent to the aisle. Bloom said his impression was that the grapes were stacked "sky-high." He testified that the pile of grapes were at least two feet high, and could have been as high as two and one-half or three feet. The store manager testified that there was a small "lip" of a "couple of inches" around the case.

Bloom walked a few feet past the grape display bin, picked up several tomatoes, and placed them on a scale. Bloom testified that the scale was three or four feet away from the grape display. When Bloom stepped back to see the scale, he slipped and fell. He testified that he slipped on a grape. After his fall, Bloom noticed several grapes on the floor beside him, some squashed. No one testified as to how the grapes came to be on the floor near the scales or how long they had been there.

Robert Covelli was the produce manager at the store. He customarily arrived at work at 3:00 A.M. and took his lunch break at 8:00 A.M. Covelli mopped the floor just prior to 8:00 A.M. He recalled from his inspection just before he took his lunch break that the floor was clean and clear at that time. Covelli was not in the store between 8:00 A.M. and the time the accident occurred just after 8:40 A.M.

The work schedule at the supermarket was arranged so that only one employee besides the produce manager worked in the produce section at a time. Between 8:00 A.M. and 8:40 A.M., a produce clerk was on duty, but he was in the receiving area at the back of the store, getting produce ready for shelving. No Fry's employee was in or near the produce section itself at the time of the accident.

Covelli acknowledged that the produce section was one of the "more dangerous" aisles in the store. There was no set sweeping schedule for either the produce section or the store generally. Employees were instructed to pick up anything they saw on the floor and to sweep when necessary. There was no evidence that the floor of the produce section had been swept after the store opened at 8:00 o'clock up to the time of the accident, nor was there any significant evidence as to customer traffic or activities in the produce department on this particular morning.

Appellee's motion for summary judgment was based upon the premise that there was no evidence that the activities of Fry's employees caused the grapes to be on the floor, no evidence that any of Fry's employees knew that the grapes were on the floor, and no evidence as to how long the grapes had been on the floor. Appellants contended, on the other hand, that notice of the possibility of hazard was inherent in appellee's method of operation. Appellants also specifically alleged that the grapes were negligently displayed. Appellants outlined the facts supporting this allegation of negligence as follows:

Grapes were loosely packed, highly stacked and next to the edge of the counter where they could easily fall when being looked at by customers. Most stores now use grape cartons, and did at the time of the accident, which protect the grapes from becoming loose and falling to the floor.

It is clear that a store owner is not an insurer of the safety of his patrons. Moore v. Southwestern Sash & Door Co., 71 Ariz. 418, 228 P.2d 993 (1951). He owes to his invitees only the duty to exercise reasonable care for their safety. McGuire v. Valley National Bank of Phoenix, 94 Ariz. 50, 381 P.2d 588 (1963); Walker v. Montgomery Ward & Co., Inc., 20 Ariz.App. 255, 511 P.2d 699 (1973). Knowledge in turn is the key to exercising reasonable care. As stated in an annotation entitled "Store or Business Premises Slip-and-Fall: Modern Status or Rules Requiring Showing of Notice of Proprietor of Transitory Interior Condition Allegedly Causing Plaintiff's Fall", at 85 A.L.R.3d 1,000, 1003 (1978):

The foundation of liability for negligence is knowledge-or opportunity by the exercise of reasonable diligence to acquire knowledge-of the peril which subsequently results in injury. A person cannot be held responsible on the theory of negligence for an injury from an act or omission on his part unless it appears that the person had knowledge, or reasonably was chargeable with knowledge, that the act or omission involved danger to another. In other words, negligence presupposes a duty of care, and this duty in turn presupposes knowledge or its equivalent.

The development of the modern self-service supermarket has to some extent altered the application of these principles. A patron sustaining injuries from a slip and fall is rarely in a position to prove actual or even constructive notice. Against this background, a body of case law has developed which relieves the plaintiff of the initial burden of proving notice in cases where the occurrence of a transitory hazardous condition can reasonably be anticipated from the store owner's method of doing business. One of the earliest of these cases was Bozza v. Vornado, Inc., 42 N.J. 355, 200 A.2d 777 (1964), which involved a fall in a store cafeteria. The Bozza court stated As we view the over-all problem, notice is merely one factor for determining whether the defendant has breached his duty of due care. As stated in Bridgman v. Safeway Stores, Inc., 53 Cal.2d 443, 2 Cal.Rptr. 146, 148, 348 P.2d 696, 698 (Sup.Ct.1960):

"The requirement of actual or constructive knowledge is merely a means of applying the general rule * * * that the proprietor may be liable if he knew or by the exercise of reasonable care could have discovered the dangerous condition, and it does not alter the basic duty to use ordinary care under all the circumstances." (Emphasis added)

Thus, we believe that when plaintiff has shown that the circumstances were such as to create the reasonable probability that the dangerous condition would occur, he need not also prove actual or constructive notice of the specific condition. Factors bearing on the existence of such reasonable probability would include the nature of the business, the general condition of the premises, a pattern of conduct or recurring incidents, Mahoney v. J. C. Penney Co., 71 N.M. 244, 377 P.2d 663, (Sup.Ct.1962). To relieve the plaintiff of the requirement of proving actual or constructive notice in such instances is to effect a more equitable balance in regard to the burdens of proof.

Id. at 359-60, 200 A.2d at 780. See also, Jasko v. F. W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966); Ciminski v. Finn Corp., 13 Wash.App. 815, 537 P.2d 850, 85 A.L.R.3d 991 (1975); cf. F. W. Woolworth Co. v. Stokes, 191 So.2d 411 (Miss.1966); Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796 (1970); and Buttrey Food Stores Division v....