Daugherty v. Montgomery Ward

• Decision Date: 25 May 1967
• Docket Number: No. 8945--PR,8945--PR
• Citation: 428 P.2d 419,102 Ariz. 267
• Parties: Nan DAUGHERTY and Ray Daugherty, her husband, Appellants. v. MONTGOMERY WARD, an Illinois Corporation, Appellee.
• Court: Arizona Supreme Court

Page 419

428 P.2d 419

102 Ariz. 267

Nan DAUGHERTY and Ray Daugherty, her husband, Appellants. v. MONTGOMERY WARD, an Illinois Corporation, Appellee.

No. 8945--PR.

Supreme Court of Arizona, In Banc.

May 25, 1967.

Rehearing Denied June 20, 1967.

Gorey & Ely, by Herbert L. Ely, Phoenix, for appellants.

Snell & Wilmer, by John J. Bouma, Phoenix, for appellee.

McFARLAND, Justice.

This case is before us on a petition for review of the decision of the court of appeals, 4 Ariz.App. 510, 422 P.2d 141.

The facts taken in the light most favorable to plaintiff are as follows:

Plaintiff, a business invitee of defendant store, was directed to its office. There an employee told her to be seated, and pushed a chair towards plaintiff for that purpose. The chair was what is known as a 'posture chair.' It was light in weight, on rollers, had no arms, and rolled easily when pushed. The floor was new, shiny, slick, and slippery, but plaintiff makes no claim of having slipped on its. She tried to sit on the chair, but instead sat on the floor and was injured. She does not know how the accident happened. She is not even sure that she waited for the chair to stop rolling before trying to sit on it. She states that as she sat down, the chair 'flew out from under me.' She could have missed the chair altogethr, and the chair's motion could have been caused by her back striking it as she fell. She could have bumped it with the back of her leg as she sat down, causing it to roll before she could sit on it. She could have sat so near the front edge that it slid or rolled out from under her. She is not sure whether her backside touched the chair or not.

She tried to show, at the trial, that a former employee had a similar fall prior to her accident. On cross examination of that employee, however, he stated that he had answered the telephone while standing up, and at the conclusion of the conversation had sat down without making sure that there was a chair under him, missed the chair, and sat upon the floor. Furthermore, he was not hurt, and continued with his work, so that no report was made of the incident. The employee was somewhat embarrassed by his clumsiness and hoped that no one had seen him fall. There is therefore no basis upon which to predicate an assumption that any one in defendant store had knowledge of this incident, and the testimony regarding it is therefore completely irrelevant.

Plaintiff also introduced evidence that there were other chairs, without casters, available 'towards the front part of the central credit office.' There was no evidence to show how far away the front part of the central credit office was from the place of the accident. That it was a considerable distance is evident from the fact that another employee 'directed us back,' that on the way plaintiff noticed that the floor was slippery, that she 'continued to walk to the back,' etc. The distance could be as much as thirty or forty yards, in which case she could hardly argue that other chairs without casters should have been proffered.

Plaintiff admits that she knew of the condition of the floor as soon as she saw it, and that 'I spoke to my son that it was slippery and I was real careful. * * * I did not slip on the floor.'

During the trial, plaintiff's counsel stated to the court: 'We don't claim that the chair was defective as such.' This statement is repeated in appellant's opening brief.

On cross examination, plaintiff was asked what defendant did that was wrong, that caused the accident. She replied that if defendant hadn't misplaced the document which she had come to discuss, she would not have gone to defendant's store. When asked whether defendant did anything else wrong that caused the accident, her answer was 'No.'

Defendant's motion for a directed verdict, made at the close of plaintiff's case, was overruled. After a judgment entered on the jury's verdict for $3,537, defendant moved for 'Judgment in Accordance with Motion For Directed Verdict.' This motion was granted, and plaintiff appealed. The court of appeals reversed, and reinstated plaintiff's judgment.

The Motion for Judgment in Accordance with Motion for Directed Verdict is merely a way of re-arguing the original motion for a directed verdict. Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799. It therefore admits the truth of all competent evidence introduced by plaintiff, and all inferences that reasonably can be drawn therefrom. Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803. Where there is a reasonable chance that the conclusions of reasonable men may differ, then the question is one for the jury. Ibid.

Plaintiff pleaded the following grounds of negligence:

1. That the accident happened because of the extremely light weight of the chair, the fact that it was fitted with rollers, and the extraordinary slipperiness of the floor, which facts were known or should have been known to defendant's employee.

2. That defendant's employee failed to supply a chair of reasonably stable quality.

3. That defendant's employee failed to warn plaintiff of the instability of the chair and of the dangerous situation existing.

4. That defendant's employee failed to discharge her duty to plaintiff to maintain the premises and the equipment in a safe condition.

A party pleading negligence specifically, is limited to the grounds specifically pleaded. Hall v. Delvat, 95 Ariz. 286, 389 P.2d 692. For this reason, plaintiff's argument that 'res ipsa loquitur' applies is without foundation. Smith v. Bernfeld, 226 Md. 400, 174 A.2d 53.

The following excerpt from Foster v. A. P. Jacobs and Associates, 85 Cal.App.2d 746, 193 P.2d 971, is an excellent expression of the law applicable to the instant case:

'An owner or occupant of lands or buildings who * * * invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils. * * * an owner * * * is liable for injuries occasioned by the unsafe condition of the land * * * if such condition was known to him and not to them * * *. The owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained * * *. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality * * *. It is when the perilous instrumentality is known to the owner or occupant and not to the person injured, that a recovery is permitted. * * * There is no liability for injuries from the dangers that are obvious, or as well known to the person injured as to the owner or occupant.' (Italics ours.)

The same principle has been expressed in Chevraux v. Nahas, 150 N.W.2d 78, decided by the Supreme Court of Iowa. That court said:

'This then means, if an existing condition on the property of an inviter is obvious, that is if both the condition and attendant risk are open, visible and apparent and would be recognized by a reasonable person in the position of an invitee, then the former would not be liable to the latter for physical harm caused him by the condition of the visited premises.'

See also Smith v. Bernfeld, 226 Md. 400, 174 A.2d 53.

In a landlord and tenant case, this court has recognized the above principle:

'People can get hurt on almost anything. But the mere fact of injury does not compel the conclusion that the condition was unreasonably dangerous. * * * One of the tests used in determining whether a condition is unreasonably dangerous is whether it is 'open and obvious' or as it has been better put: 'If people who are likely to encounter a condition may be expected to take perfectly good care of...