Cook v. Safeway Stores, Inc., No. 8259.

• Docket Nº: No. 8259.
• Citation: 354 A.2d 507
• Case Date: March 16, 1976
• Court: Court of Appeals of Columbia District

Page 507

354 A.2d 507 Tacy COOK, Appellant,
v.
SAFEWAY STORES, INC., Appellee. No. 8259. District of Columbia Court of Appeals. Argued November 21, 1974. Decided March 16, 1976.

Robert W. Rifkin, Washington, D. C., with whom A. Slater Clarke, Washington, D. C., was on the brief, for appellant.

William D. Appler, Washington, D. C., with whom Edward J. Lopata, Washington, D. C., was on the brief, for appellee.

Before REILLY, Chief Judge, and KERN and YEAGLEY, Associate Judges.

REILLY, Chief Judge:

This is an appeal from an order directing a verdict for defendant, Safeway Stores, Inc., in an action by a customer (appellant here) to recover damages for personal injuries incurred while shopping at one of defendant's retail outlets. The motion on which the court acted was made and granted after appellant's counsel had made his opening statement.

In her pretrial deposition, appellant testified that she was picking up groceries one evening in a Safeway store in the Waterside Mall, in the southwest sector of the city, when a stranger (with two companions) snatched her wallet from her shopping cart. Appellant yelled, "What are you doing? You are trying to steal my wallet."

As she said this, she stepped up to the thief and his companions and seized his

Page 508

arm. He dropped the wallet, wrenched his arm away, and moved rapidly toward the exit. Appellant picked up the wallet and noticed that a $20 bill which had been in it was missing. Calling out that the man was a thief, she pursued him to the checkout counter and grabbed his arm; whereupon he turned, struck appellant in the face with his fist, and ran from the store. The store manager and his assistant (who found on the floor and returned to appellant the missing $20 bill), immediately appeared and called the police. Appellant was then taken by an ambulance to George Washington University Hospital, where she was treated and released. She was then living in an apartment about two blocks from the store.

When the trial began, counsel for appellant on opening statement declared that appellant patronized the store because it was the only supermarket in the vicinity close to her home and also because the store employed security guards upon whom appellant relied for protection, but that on the particular night no security guards were present. Counsel offered to prove that the store is located in a high crime area and that similar incidents had occurred there and in the adjacent streets. Accordingly, counsel argued that the stored owed appellant a duty to provide such guard service, that its failure to do so caused her to be injured, and that such assaults upon their patrons were foreseeable by management. On Safeway's motion for a directed verdict, the trial court ruled that even if the facts alleged were proved, there was no cause of action.

As appellant concedes, the rule in this jurisdiction is that a trial court does have the power to direct a verdict for the defendant after hearing only the plaintiff's opening statement. Williams v. City Stores Company, D.C.App., 192 A.2d 534 (1963); Custer v. Atlantic & Pacific Tea Co., D.C.Mun.App., 43 A.2d 716 (1945). This is a power, however, which must be exercised sparingly.

To warrant the court in directing a verdict for defendant upon that statement, it is not enough that the statement be lacking in definiteness, but it must clearly appear, after resolving all doubts in plaintiff's favor, that no cause of action exists. [Best v. District of Columbia, 291 U.S. 411, 415-16, 54 S.Ct. 487, 489, 78 L.Ed. 882 (1934).]

Consequently, we concur in appellant's...