Corbett v. Heck

• Decision Date: 10 December 1969
• Docket Number: Docket No. 2991,No. 3,3
• Citation: 174 N.W.2d 618,20 Mich.App. 708
• Parties: Maxine Delores CORBETT, Plaintiff-Appellant, v. Edwin J. HECK, d/b/a Heck's Tavern, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 618

174 N.W.2d 618

20 Mich.App. 708

Maxine Delores CORBETT, Plaintiff-Appellant, v. Edwin J. HECK, d/b/a Heck's Tavern, Defendant-Appellee.

Docket No. 2991.

Court of Appeals of Michigan, Division No. 3.

Dec. 10, 1969.

Released for Publication March 4, 1970.

Joseph J. Trogan, Saginaw, for plaintiff-appellant.

Stanton, Davidson & Carl, Saginaw, for defendant-appellee.

Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

HOLBROOK, Judge.

In this action plaintiff brought suit against defendant claiming damages arising out of a fall sustained by plaintiff on leaving defendant's business establishment on May 30, 1962.

Plaintiff testified that she had been in defendant's place of business 2 or 3 times before. The evidence indicates that plaintiff did not notice on entering defendant's premises, a rubber mat located at the entrance. As plaintiff was leaving the premises she stepped down 4 from the floor level to the rubber mat in passing through the entrance door which was held by her husband, apparently caught her left heel in the mat and fell breaking her leg. At the time of the fall, plaintiff was wearing 2 high heeled shoes which were about 1/2 across on the bottom of each heel. At the close of plaintiff's proofs, defendant made a motion for directed verdict. The trial court in granting the motion stated:

'Examining the proofs in this matter as offered by the plaintiff in a light most favorable to the plaintiff, the court is of the opinion that the defendant's motion for a directed verdict should be granted.

'The court would rule that the plaintiff has not made a case for the jury and that plaintiff did not prove any actionable negligence whatsoever.

'The negligence of the defendant in this case is predicated upon the theory, as the court sees it, that the defendant was bound to know the size of the heels of its customer's shoes and as a reasonably prudent man should have anticipated that the accident, as happened on the mat as testified to, was likely to happen to customers using reasonable care for their own safety.

'The court further finds from the evidence in this case that the mat as used as testified to in the case is an ordinary mat and is in common usage in this section of the country.

'The court finds that the mat in question is very similar to the mat used in the case of Nash v. Lewis (1958), 352 Mich. 488, 90 N.W.2d 480, except as to the overall size as is indicated by plaintiff's exhibits 4, 5, 6 and 7.

'The court further finds that the complaint of the plaintiff does not indicate that there was anything inherently dangerous in the mat used in the entranceway except to state as follows from paragraph three of the complaint:

"* * * that the defendant negligently owned, placed and maintained a mat at the front entrance of said establishment at the time and place therein stated.'

'Numeral four:

"* * * that said mat had many triangular shaped sections.'

'Numeral five:

"* * * that the area inside the triangular shaped section was empty which created a space in each triangle.'

'Numeral six:

"* * * that as plaintiff attempted to leave the premises of the said defendant and at said time and place the heel of her shoe was caught in said mat causing her to trip and to fall.'

'The court further finds that the standard of care as set forth in 2 Restatement of Law, Torts, Negligence, under the title of Business Visitor, § 343, is applicable in this case as the court rules it was applicable in Nash v. Lewis, and I quote:

"A possessor of land is subject to liability for bodily harm caused to visitors by a natural or artificial condition thereof, if, but only if he knows or by the exercise of reasonable care could discover the condition which, if known to him he would realize as involving an unreasonable risk to them.'

'And the court finds from the testimony in this case that plaintiff has not established proof of any unreasonable risk.

'The court would rule that to submit the case to the jury would, on the proofs as offered by the plaintiff, would only lead to guess, speculation and conjecture on behalf of the jury.

'The court would rule that this was an unfortunate accident without negligence on behalf of the defendant from proofs as submitted by the plaintiff.'

The applicable law governing this case is succinctly set forth in the case of Humphries v. McCrory-McLellan Stores Corporation (C.A. 4, 1966), 358 F.2d 901; Serinto v. Borman Food Stores (1968), 380 Mich. 637, 158 N.W.2d 485; and Yearsley v. City Bank (1960), 361 Mich. 574, 106 N.W.2d 162.

We conclude, after a careful review of the record, that the trial court did not commit error in granting defendant's motion for a directed verdict.

Affirmed. Costs to defendant-appellee.

LEVIN, Presiding Judge (dissenting).

As she walked out of the front door of the defendant's tavern Maxine Corbett, the plaintiff, caught her heel in an opening in a doormat, fell and broke a leg. The trial judge and the majority hold as a matter of law that the defendant was not negligent in using the particular doormat upon which she tripped. The trial judge stated that the mat 'is an ordinary mat and is in common usage in this section of the country.'

The doormat is, indeed, commonly seen. The rubber links that comprise the mat are of identical size, several inches long. They are laid out in rows from left to right. Each row is fastened at the top and bottom by metal bars running the length of the row. As so laid, out, the links form continual rows of 'Vs', viz:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

By reason of the design there are a large number of interstices in the mat.

The widespread use of these rubber mats is, no doubt, some evidence that reasonable men use them. The question before us is not, however, whether some or many reasonable men use such mats, but, rather, whether All ¹ reasonable men would agree that the defendant exercised due care in using a doormat which could so readily engage and dislodge the heel of a lady's shoe.

Mr. Justice Holmes succinctly analyzed the issue in Texas & P.R. Co. v. Behymer (1903), 189 U.S. 468, 470, 23 S.Ct. 622, 623; 47 L.Ed. 905, 906:

@'What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually i § complied with or not.'

Dean Prosser has observed:

'There can certainly be such a thing as customary negligence, as the unchecked habit of jaywalking in some communities will suggest * * * And if the only test is to be what has been done before, no industry or group will ever have any great incentive to make progress in the direction of safety. * * * Much the better view, therefore, is that of the great majority of the cases, that every custom is not conclusive merely because it is a custom, and that it must meet the challenge of 'learned reason' and be given only the evidentiary weight which the situation deserves.' Prosser, Law of Torts (3d ed), § 33, p. 170.

In Stapleton v. Furniture Exhibition Building Co. (1920), 209 Mich. 385, 177 N.W. 139, the plaintiff's injury was caused by a defective bolt in an elevator. It was not customary to remove such bolts for inspection. The Michigan Supreme Court ruled that evidence of that custom (p. 392, 177 N.W. p. 141) 'would be no excuse, and would not bar the plaintiff's right of action, but would be one of the factors which could be properly submitted to the jury on the question of whether or not the defendant exercised reasonable care.'

The glass door and wall cases illustrate the principle that is involved. In a considerable number of cases, occupiers of property have been found guilty of negligence in using unmarked glass doors or panels even though they are an accepted method of construction and it is common knowledge that they are used extensively in commercial buildings and, more recently, in private homes. ²

The same principle has been applied where doormats in common use are involved. In Blumberg v. M. & T., Inc. (1949), 34 Cal.2d 226, 209 P.2d 1, a closely divided California Supreme Court declared:

'Reasonable inquiry and inspection would have informed the property owner that it was maintaining in the lobby a mat with openings likely to retain and hold the heel of a shoe such as is customarily worn by a large number of the women in San Francisco. Moreover, whether the nature of the mat was obvious to (the plaintiff) was a question of fact for the determination of the jury. The claim that the mat in question was widely used is no legal excuse for the maintenance of a dangerous condition. The fact that a negligent practice is general does not transform it into reasonable care.' ³

The divergence of opinion evidenced by the division of the court in the last cited case and in the cases cited in footnote 3 emphasizes the necessity of sending this question to the jury. It shows that all reasonable minds do not necessarily reach the same conclusion on this question. As cogently stated in a recent opinion signed by four justices of our Supreme Court:

'It appears that the Brethren standing for affirmance of these instructed verdicts are convinced that the Brethren standing for jury verdicts are either unreasonable men or that they have unreasonable minds.' Wolfgram v. Valko (1965), 375 Mich. 421, 433, 134 N.W.2d 649, 654, per Black J.

In McKinney v. Yelavich (1958), 352 Mich. 687, 691, 90 N.W.2d 883, the Michigan Supreme Court warned against substituting 'specific roles ⁴ of behavior for a general standard of care.' Yet, once again the attempt is made to establish a specific rule of behavior for the general standard of care; the use of a V-link doormat is held indisputably to constitute the exercise of due care. Oft-cited and oft-quoted Van Steinburg ⁵ warns against judges making their 'own opinion of what would be generally regarded as prudence a definite rule of law.'

There is no issue in this case as to what is the standard of care; there is...