Buttrey Food Stores Division v. Coulson

• Citation: 620 P.2d 549,20 A.L.R.4th 419
• Decision Date: 03 December 1980
• Docket Number: No. 5251,5251
• Parties: BUTTREY FOOD STORES DIVISION, Jewel Companies, Inc., a New York Corporation, Appellant (Defendant), v. Ruthe COULSON, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 549

620 P.2d 549

20 A.L.R.4th 419

BUTTREY FOOD STORES DIVISION, Jewel Companies, Inc., a New York Corporation, Appellant (Defendant), v. Ruthe COULSON, Appellee (Plaintiff).

No. 5251.

Supreme Court of Wyoming.

Dec. 3, 1980.

Thomas D. Roberts of Morgan & Brorby, Gillette, for appellant.

Don M. Empfield and Willis Geer of Geer & Empfield, Gillette, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

THOMAS, Justice.

The appellant, Buttrey Food Stores Division, Jewel Companies, Inc., challenges the sufficiency of the evidence to support the judgment of the trial court in a case involving personal injuries sustained in a fall on the appellant's business premises. Specifically the appellant urges error in the allocation of one hundred percent of the causative negligence to it; the insufficiency of evidence of permanent injury; excessiveness of the judgment; excessive cost allowance for an expert witness; and the failure of the appellee, Ruthe Coulson, to plead the amount of her damages. We shall affirm the judgment of the trial court which was entered after a trial to the court without a jury except as to the issue of excessive costs. We will reverse the award of costs and remand the case to the trial court for a proper determination of the costs to be awarded.

As more completely stated in the briefs of the parties, the issues presented are as follows:

"1. THE SUFFICIENCY OF THE EVIDENCE PRESENTED TO SUPPORT A FINDING OF 100% NEGLIGENCE ON THE PART OF DEFENDANT-APPELLANT AND 0% NEGLIGENCE ON THE PART OF PLAINTIFF-APPELLEE.

"2. THE FAILURE OF PLAINTIFF TO SPECIFICALLY ALLEGE IN HER COMPLAINT OR REVEAL IN ANSWERS TO INTERROGATORIES THE PARTICULAR DAMAGES SOUGHT TO BE RECOVERED.

"3. THE SUFFICIENCY OF THE MEDICAL EVIDENCE PRESENTED TO SUPPORT A FINDING OF ANY PERMANENT INJURY ARISING FROM THIS FALL.

"4. THE EXTREME EXCESSIVENESS OF THE JUDGMENT ENTERED IN VIEW OF THE MEDICAL AND OTHER EVIDENCE PRESENTED.

"5. THE EXCESSIVENESS OF THE EXPERT WITNESS FEE ALLOWED AS A COST."

The material operative facts in this case are not complicated. On January 20, 1979, Mrs. Coulson fell while entering the Buttrey Store in Gillette, Wyoming. The weather that day was clear and bright but there was an accumulation of snow and ice on the ground. It was a bit messy and slushy underfoot, and it appeared that the temperature was above freezing. Mrs. Coulson was wearing shoes with soft rubber soles. Accompanied by a friend with whom she had lunched, Mrs. Coulson went to the Buttrey Store in the early afternoon. There was a large amount of ice in the store parking lot. Mrs. Coulson entered through the northwest doors, which consist of an inner door and an outer door. There was a rubber mat between the two doors and in addition a cloth-type mat three feet by six feet was placed between the outer and inner doors. Inside the inner door was another cloth mat three feet by six feet, and beyond that was a tile floor. The assistant manager testified that there were spare mats available at the store which were not in use. These mats were rented under an arrangement that cost Buttrey's $5.00 each time fresh mats were exchanged for soiled ones.

Immediately upon stepping off the cloth met onto the tiled floor Mrs. Coulson fell. She stepped off with her right foot and fell first on her right knee. She then fell full length on the floor, and her right shoulder, right sleeve, right leg and hip area were wet when she got up from the floor. A store employee stated that he could observe a skim of water on the floor adjacent to the mat from the checkstand some 20 feet away.

Mrs. Coulson evidenced pain immediately in her countenance. She complained of pain to a store employee. After she got up she walked haltingly and had to hang onto something. There was pain localized in her kneecap shooting in both directions, and her knee felt progressively worse all the time and began to swell.

After she had completed her errand at the Buttrey Store her friend took her directly to the emergency room at the hospital. At this time Mrs. Coulson looked like she was strained and hurting. She was examined, and X rays were made, and her knee was wrapped with an Ace bandage. The following Monday she saw her family physician, who examined her and suggested she go home and keep her leg elevated. She was bedridden for about two and one-half weeks, and it was two months before she could stand with any assurance. She had to elevate her leg at work.

Mrs. Coulson previously had suffered an injury to this knee. She testified, however, that that injury had healed, and prior to the accident she walked without a limp and her knee was not at all unstable. After the fall she walked more slowly and haltingly. She sought support and the knee was unstable. She had difficulty driving her car. She gave up exercises that had been suggested because they were too painful. She stopped watching television because it was difficult to traverse the stairway to the basement of her home. She stopped attending meetings and church events. She did not visit the Senior Citizens Center as had previously been her habit.

Mrs. Coulson was employed as a proofreader at the Gillette News Record prior to the fall where she earned $3.75 an hour and usually worked a 25-hour week. She also did tutoring for homebound students, and was paid at the rate of $5.00 an hour for such tutoring by the school district. She had medical bills of $138.72, and a loss of earnings of $600.00. A medical doctor who specializes in orthopedics testified as to his examination of Mrs. Coulson's knee. He found that there was some limitation of range and the evidence of the prior injury was apparent. Her kneecap felt large and was somewhat misshapen. He found evidence of arthritic spurs and what he described as extensive degenerative arthritis. A significant fall could aggravate the arthritis that was present and could cause discomfort in addition to aggravating the arthritis. He did observe atrophy of the thigh muscles which could be attributed to bed rest of two to four weeks. In his opinion Mrs. Coulson would benefit from a patellectomy, which is the removal of the kneecap. The medical expenses for that procedure would be approximately $800.00

The case was tried to the court without a jury, and a judgment was entered in favor of Mrs. Coulson. In the judgment the trial court apportioned negligence by ascribing 100 percent to the appellant and none to Mrs. Coulson. Damages were awarded to Mrs. Coulson in the amount of $10,207.29. (There is an inconsistency in the judgment and it may be 28 cents instead of 29 cents.) Mrs. Coulson also was awarded costs in the amount of $690.50. On appeal the appellant attacks all aspects of the judgment.

The appellant concedes the store owner owes a duty to those whom he has expressly or impliedly invited to come on his premises to be reasonably sure that he is not inviting them into danger, and he must exercise ordinary care and prudence to render his premises reasonably safe to visit. There is no difference with respect to that duty between the majority of the court and those members who are dissenting in part and concurring in part. The store owner must use ordinary care to keep the premises in a safe condition, and he is charged with an affirmative duty to protect visitors against dangers known to him and against dangers which he might discover by use of reasonable care. Dudley v. Montgomery Ward & Co., 64 Wyo. 357, 374, 192 P.2d 617, 622 (1948); Rhodes v. El Rancho Markets, 9 Ariz.App. 576, 581, 454 P.2d 1016, 1021 (1969); Shutt v. Kaufman's, Inc., 165 Colo. 175, 180, 438 P.2d 501, 503 (1968); Pushard v. J. C. Penney Company, 151 Mont. 82, 85, 438 P.2d 928, 929 (1968); Safeway Stores, Incorporated v. Keef, Okl., 416 P.2d 892, 894 (1966); Glover v. Montgomery Ward and Company, Okl.App., 536 P.2d 401, 408 (1974); and Pribble v. Safeway Stores, Inc., 249 Or. 184, 191, 437 P.2d 745, 749 (1968). Cf., Honan v. Moss, Wyo., 359 P.2d 1002, 1006-1007. This concord may serve to distinguish that portion of the opinion of the court in Dudley v. Montgomery Ward & Co., supra, at 192 P.2d 630, which states:

" * * * we cannot perceive that if it be claimed that plaintiff slipped as a result of the combination of her wet shoes and the slush and water tracked in by the store's customers, there could be predicated thereon any failure on defendant's part to perform a duty which it owed the plaintiff. * * * "

It well may be, however, that we have effectively departed from that aspect of the court's opinion.

The appellant, however, does rely upon the case of Dudley v. Montgomery Ward & Co., supra, in arguing further that:

" * * * Assuming that the proof does show a dangerous floor condition did exist, unless the condition was one created by the proprietor himself or under his authority, a plaintiff must show, in order to recover on a theory of negligence that the proprietor had actual notice of the condition, or that it had existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken remedial action, Dudley v. Montgomery Ward and Company, 1948, 64 Wyo. 357, 192 P.2d 617, Annot. Slippery Floor-Injury, 62 A.L.R.2d 6, Prosser, Law of Torts § 61 (1971), Martin v. Safeway Stores, Inc., (Utah 1977), 565 P.2d 1139. * * * "

The appellant states this argument in another way as follows:

" * * * Without some even minimal showing that the proprietor knew of the situation, or by the passage of time should have known of it, the Plaintiff-Appellee's proof has failed, thus she has no basis upon which to recover. * * * "

Given the circumstances of this case, the better rule is stated in F. W. Woolworth Co. v. Stokes, Miss., 191 So.2d 411, 416 (1966), as follows:

" * * * when plaintiff has shown that the circumstances were such as to create a reasonable probability that the dangerous condition would occur, he need not also prove...