Bridgman v. Safeway Stores, Inc.

• Decision Date: 22 January 1960
• Citation: 348 P.2d 696,2 Cal.Rptr. 146,53 Cal.2d 443
• Court: California Supreme Court
• Parties: , 348 P.2d 696 Theorilda Marie BRIDGMAN, Plaintiff and Appellant, v. SAFEWAY STORES, INC. (a Corporation), Defendant and Respondent. S. F. 20309

Page 146

2 Cal.Rptr. 146

53 Cal.2d 443, 348 P.2d 696

Theorilda Marie BRIDGMAN, Plaintiff and Appellant, v. SAFEWAY STORES, INC. (a Corporation), Defendant and Respondent.

S. F. 20309.

Supreme Court of California

Jan. 22, 1960.

Rehearing Denied Feb. 17, 1960.

George Olshausen, San Francisco, for appellant.

Ackerman, Johnston, Johnston & Mathews and Willard S. Johnston, San Francisco, for respondent.

GIBSON, Chief Justice.

Plaintiff has appealed from a judgment for defendant in an action for personal injuries, and she claims that certain instructions given to the jury were erroneous.

On October 30, 1956, at approximately 1:00 p. m., plaintiff entered defendant's self-service market to purchase a pumpkin. She testified that she selected one from the pumpkin stand, weighed it, and replaced it. While she was still facing the stand she felt a sudden blow on her chest that knocked her down. She did not see the pumpkins fall because she had averted her eyes for an instant, but after she fell she saw pumpkins lying by her on the floor. She testified that the pumpkins rose to eye level, a height which an employee of the defendant testified would be unsafe.

Defendant's produce manager testified that the height of the stand was 29 inches and that the pumpkins on it were stacked in two layers. He said the merchandise was 'handled quite a bit' and that a number of inspections and rearrangements were required during the day. There was evidence that several inspections of the produce area of the market were made on the day in question, the last one about 12:15 p. m. Three employees of defendant testified that immediately after the accident plaintiff told them that she had slipped and had reached out to steady herself and that in doing so she knocked several of the pumpkins to the floor. Plaintiff denied having made the statement ascribed to her.

Before passing upon plaintiff's contentions it will be helpful to consider what duties the owner of a self-service store owes his customers. It is the general rule that the proprietor of a store who knows of, or by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm. Crane v. Smith, 23 Cal.2d 288, 296, 144 P.2d 356 (child in store injured by coffee grinder); see Rest., Torts, § 343. Several decisions have applied this rule to injuries occurring in stores as the result of dangerous conditions which were, or may have been, caused by the negligence of a customer. Sapp v. W. T. Grant Co., 172 Cal.App.2d 89, 341 P.2d 826; Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 128 et seq., 276 P.2d 118; Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 606-607, 184 P.2d 708; see Hatfield v. Levy Brothers, 18 Cal.2d 798, 806, 117 P.2d 841; Girvetz v. Boys' Market, Inc., 91 Cal.App.2d 827, 829, 206 P.2d 6. These cases declare that where the dangerous condition is brought about by natural wear and tear or by third persons, the owner, in order to be held liable, must have had either actual or constructive knowledge of the condition or have been able to discover it by the exercise of ordinary care and that the condition must have been one which the owner should have realized as involving an unreasonable risk to invitees. The requirement of actual or constructive knowledge is merely a means of applying the general rule stated above 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.

It obviously follows that the owner of a store must make reasonable inspections of such portions of his premises as are open to his customers, and, in this connection, it has been held that evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it. Sapp v. W. T. Grant Co., 172 Cal.App.2d 89, 341 P.2d 826 et seq. (patron stepped on a spool of thread; no inspection for a period of 20 minutes); Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 128 et seq., 276 P.2d 118 (customer slipped on banana; no inspection for a period of '12, 15, or 30 or more minutes'); Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 607-609, 184 P.2d 708 (patron slipped in pool of syrup; no inspection for between 15 to 25 minutes). As declared in these cases, it is ordinarily a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered by an owner who exercised reasonable care.

The general rules stated above apply with respect to self-service stores as well as to stores where customers are not permitted to handle the merchandise. Sapp v. W. T. Grant Co., supra. 172 Cal.App.2d 89, 341 P.2d 826; Dillon v. Wallace, 148 Cal.App.2d 447, 306 P.2d 1044; Francois v. American Stores Co., 46 N.J.Super. 394, 134 A.2d 799, 801; see Simpson v. Duffy, 19 N.J.Super 339, 88 A.2d 520, 522, 525. The care required must, of course, be commensurate with the particular risk involved, and the risks may vary with many different factors, including whether the store is wholly or partially of the self-service type or, if not, whether the customers are nevertheless allowed to inspect and handle the things offered for sale. Where, as here, the owner operates his store on a self-service plan, under which customers are invited to inspect, remove, and replace goods on the shelves, the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise. See Francois v. American Stores Co., supra, 46 N.J.Super. 394, 134 A.2d 799, 801; Simpson v. Duffy, supra, 19 N.J.Super. 339, 88 A.2d 520, 525. However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent man acting under the same circumstances.

The case of Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, ...