Brodsky v. Safeway Stores Inc.

• Decision Date: 29 January 1945
• Docket Number: No. 243.,243.
• Parties: BRODSKY v. SAFEWAY STORES, Inc.
• Court: D.C. Court of Appeals

41 A.2d 514

BRODSKY

v.SAFEWAY STORES, Inc.

No. 243.

Municipal Court of Appeals for the District of Columbia.

Jan. 29, 1945.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Mrs. Sarah Brodsky against Safeway Stores, Inc., to recover for injuries sustained by plaintiff, who fell in one of defendant's self-service stores. The trial court directed a verdict for defendant, and plaintiff appeals.

Affirmed.

Mark P. Friedlander, of Washington, D. C. (Jack Politz, of Washington, D. C., on the brief), for appellant.

Richard W. Galiher, of Washington, D. C. (Henry I. Quinn, of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

HOOD, Associate Judge.

The action below was for damages for personal injuries sustained by plaintiff from a fall in one of defendant's self-service stores. Plaintiff entered the store to purchase groceries and shortly after passing the turnstile stepped on some string beans, slipped and fell. There was no evidence of how the beans came to be on the floor or how long they had been there. At the close of plaintiff's testimony the trial court directed a verdict for the defendant, holding that the case was controlled by the decision in F. W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970. Plaintiff has appealed.

Conceding that the facts of this case are very similar to those in the Woolworth case, plaintiff contends that the law properly applicable to the present case is that laid down in Hellyer v. Sears, Roebuck & Co., 62 App.D.C. 318, 67 F.2d 584.

In the Woolworth case a customer testified that she slipped on a raised oval-shaped spot and was caused to fall. Holding that a store owner is not an insurer of the safety of customers while in the store, the court reversed a judgment in plaintiff's favor saying [59 App.D.C. 347, 41 F.2d 971]:

‘Until it is established that the accident was occasioned through the negligence of defendant's employees, or as the result of the existence of a condition of which defendant had either actual or constructive notice, there can be no recovery. * * *

‘Plaintiff cannot sustain her case by merely showing that a spot was there. The burden rests upon her to establish its presence under circumstances which would charge defendant with responsibility therefor. This she failed to do, but rested her case solely on the existence of the spot on the floor.’

In the Hellyer case the customer testified that while descending the stairs in a newly opened store, the heel of her shoe caught in the casing along the edge of a step, causing her to fall. A strip of flashing along the nosing of the step was raised up and stuck out in such manner as to catch her shoe heel. The court, reversing a judgment entered on a directed verdict for the defendant, said:

‘Appellant was an invitee, and as such, appellee owed her the duty of exercising ordinary care to so construct the stairways as to make them safe for a person using ordinary care for his own safety, and likewise owed the duty of inspecting them from time to time to keep them safe. If the metal covering the step nosing was either so constructed that it extended up above the surface of the tread in such a way as to make it dangerous to a person using the steps with due care, or if, after construction, it was allowed to get and remain in that condition, a case of actionable negligence would arise for an injury to an invitee.' ¹ Plaintiff's contention is that the Hellyer case, decided three years after the Woolworth case, laid down a rule different from that stated in the Woolworth case, and, in effect, overruled the latter case.

The Hellyer case did not refer to the Woolworth case and we find nothing in the decision indicating an intention to overrule or in any degree limit the principle laid down in the Woolworth case. Nor do the later decisions indicate such an intention.

In Selby v. S. Kann Sons Co., 64 App.D.C. 36, 73 F.2d 853, the court discussed both the Hellyer and the Woolworth cases, pointing out that the breach of duty alleged in the Hellyer case was defective construction rather than negligent maintenance, and applying the principle of the Woolworth case to the facts of the case then under consideration. In Fisher v. Washington Coca-Cola Bottling Works, Inc., 66 App.D.C. 7, 84 F.2d 261, 105 A.L.R. 1034, the Woolworth case...