Carter v. Food Center, Inc.
| Decision Date | 15 May 1971 |
| Docket Number | No. 45979,45979 |
| Citation | 207 Kan. 332,485 P.2d 306 |
| Parties | Mollie CARTER, Appellant, v. FOOD CENTER, INC., d/b/a Red-Bud Super Markets and Boogaart, Inc., formerly known as Scribner, Boogaart, Inc., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A motion for directed verdict may not be sustained unless the evidence is insufficient to support a verdict for the party against whom it is directed. In considering its propriety the evidence, and all inferences that may reasonably be drawn therefrom, must be considered in the light most favorable to that party.
2. Rules relating to the liability of a proprietor toward a business invitee who slips and falls on debries on the floor of the proprietor's premises are stated and applied.
3. In an appeal by plaintiff from an order sustaining defendants' motion for directed verdict in a slip and fall case in a supermarket, the record is examined and held, no error.
Michael R. Elson, of Sowers, Sowers, Carson & Johnston, Wichita, argued the cause, and James P. Johnston, Wichita, of the same firm, was on the brief, for appellant.
James Z. Hernandez, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause, and Lee H. Woodard, Wichita, of the same firm and John E. Rees, of Fleeson, Gooing, Coulson & Kitch, Wichita, were on the brief, foir appellees.
HARMAN, Commissioner:
The action in district court was one for damages for personal injuries resulting from a fall in defendants' supermarket. In a jury trial at the conclusion of plaintiff's evidence the court sustained defendants' motion for directed verdict. Plaintiff has appealed from that order.
The single error presented on appeal is the trial court's action in removing the case from jury consideration.
Plaintiff's evidence on the liability issue consisted of her own testimony and that of the operator of a janitorial service and an expert testing engineer. We briefly summarize that evidence.
On February 19, 1968, plaintiff was the proprietor of a rest home. According to her testimony, at about 9:00 a. m. she entered defendants' supermarket at Twenty-first and Grove streets in Wichita for the purpose of buying fish. She walked around the cash registers intending to look at the contents of the frozen food counter but when she got to that aisle she saw a gentleman standing behind the meat counter at the far end of the aisle. She then decided to ask him about fish and started toward him. As she was walking along the aisle her right foot hit an object and it was just like she had stepped on a roller skate. Her right foot went straight out and she fell in a twisted manner, striking her head on the frozen food counter. After first aid was rendered she asked what she had slipped on. The butcher she had seen at the meat counter, who had come to her after the fall, picked up an object and said, 'It is a piece of hard gum.' Plaintiff saw the gum at the time but did not see any other foreign material or objects in the immediate area where she fell. At the time she stepped on the gum it had not been cut and was a solid piece, light on the bottom side and dark on the top. Plaintiff weighed 240 pounds at this time.
A Mr. Steele testified he and two partners operate a janitorial service in Wichita and under an oral agreement, for a flat weekly fee, perform floor cleaning services for defendants' eight supermarkets in Wichita, including the one in question. According to their schedule they worked in each store three or four times per week, scrubbing and buffing the floor on each occasion and waxing it when they thought it necessary. They performed this work after the store closed each night. Store hours were from 6:00 a.m. to midnight daily. Defendants' employees at each store were supposed to sweep the floor just prior to closing each night. The witness believed the store employees revolted against this last sweeping because they usually did a poor job of it. He had told defendants' officials that all the stores should be swept three or four times a day because the parking lots were poorly kept and people tracked in sand which would cut into the floor and ruin the waxing job. He had griped to the store management several times about the sweeping but 'it didn't do any good'. He had worked for other stores in the Wichita area where floors were swept more frequently and were better kept than defendants; these stores were open for shorter hours than defendants.
Mr. Steele and his partners arrived at the subject store sometime during the early morning hours of the day plaintiff fell. They did not wax the floor at that time. They would have swept the floor if needed, then they mopped, scrubbed and buffed. One of the partners operated a convertomatic scrub machine which used a soap and water solution over the floor and picked up water and debris by vacuum suction. Mr. Steele followed, mopping up excess water. The floor was then buffed. Mr. Steele carried a putty knife to scrape up gum that was stuck on the floor which gum would then be placed in a sack carried for that purpose. The floor was a light off-white color and was 'horrible for showing spots'. Because of the color of the floor he or his partners would have seen the gum if it were out in the aisle during the early morning hours of February 19 because they were watching the floor while they worked and the gum 'would be just like a fly in buttermilk, sir, you'd see it.' There was no space under the frozen food lockers bordering the aisle where debris could collect and they could buff close to the lockers. The first time the store would have needed sweeping after it opened that day would have depended upon customer traffic. After plaintiff had fallen the butcher had told him about it and the witness was surprised because when they had finished cleaning the floor earlier that morning 'it was a beautiful floor.' Bread and milk deliveries are made to the store between 6:00 and 9:00 a.m. The gum could have been brought in on one of the delivery cases or it could have come from a customer but this was only a guess as the witness had no information as to how the gum got on the floor. If anyone cleaned the store's parking lot it was done infrequently.
By deposition a Mr. Hill, a chemical engineer and part owner of a testing laboratory, testified for plaintiff. On July 23, 1968, he received the piece of gum in question and performed extensive analysis and tests upon it. These included photo-optical examination performed under a metallurgical microscope with a camera attached so that a specimen sliced from...
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