Deakin v. Putt

• Decision Date: 10 April 1979
• Docket Number: No. 3546,3546
• Citation: 93 N.M. 58,1979 NMCA 53,596 P.2d 271
• Parties: Harold A. DEAKIN, Plaintiff-Appellant, v. Bobby Q. PUTT and Marjorie Putt, d/b/a Cuban Cafe, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 271

596 P.2d 271

93 N.M. 58

Harold A. DEAKIN, Plaintiff-Appellant, v. Bobby Q. PUTT and Marjorie Putt, d/b/a Cuban Cafe Defendants-Appellees.

No. 3546.

Court of Appeals of New Mexico.

April 10, 1979.

Kathleen Davison Lebeck; Civerolo, Hansen & Wolf, Albuquerque, for plaintiff-appellant

Stephen M. Williams; Shaffer, Butt, Jones, Thornton & Dines, Albuquerque, for defendants-appellees.

OPINION

SUTIN, Judge.

Plaintiff sued defendant for damages arising out of an injury sustained in defendant's cafe. While defendant was pouring plaintiff a cup of hot coffee from a glass coffee pot, the bottom of the pot broke spilling hot coffee in plaintiff's lap. Plaintiff relied upon the doctrine of res ipsa loquitur. Summary judgment was granted defendant and plaintiff appeals. We reverse.

To make a prima facie case, defendant had the burden of establishing as a matter of law that (1) the coffee pot was not in defendant's exclusive control, and (2) this accident does not ordinarily happen in the absence of negligence. Defendant did not meet this burden.

The only witness able to establish these facts was defendant himself. His affidavit, recorded telephone conversation, and deposition vary in some respects. The affidavit was a formal production of the attorney. The recorded telephone conversation and deposition represent a fair presentation of the facts.

Defendant purchased the glass coffee pot from Farmer Brothers about four years prior to the accident. Labeled on it was a warning to be careful not to bump, scratch or boil dry. To prevent accidents like this from happening, defendant had instructed his employees about the occurrence, if bumped, of cracks such as "stars" on the glass coffee pot. In defendant's opinion it does not take very much of a bump to make the pot break. It will "star" crack if bumped hard enough in the washing process. When asked whether the coffee pot had been cracked, defendant said that he could have hit the edge of another cup or dish on the table, or tapped the top of the cup as he reached over to pour the coffee for plaintiff. Any one of these events could have caused the glass to fall off the pot. Defendant did not inspect the pot. While pouring the coffee for plaintiff, a business invitee, glass from the side or bottom of the pot fell off and hot coffee spilled on plaintiff.

Plaintiff claims the accident occurred because defendant failed to keep his premises, fixtures and utensils in a reasonably safe condition. By use of the word "utensils," plaintiff included the glass coffee pot. Of course, defendant had a duty to keep the pot in a reasonably safe condition, primarily to keep the pot from being bumped, scratched or boiled dry to avoid a "star" crack. The parties appear to agree that a "star" crack in a hot coffee pot will cause the glass to fall out.

The first element of res ipsa loquitur is whether defendant had exclusive control of the coffee pot before or at the time of the accident. From the facts presented, we hold, as a matter of law, that defendant had exclusive control of the coffee pot.

The second element is whether the accident was one which ordinarily does not happen in the absence of negligence. We hold that a genuine issue of material fact exists.

The common experience of the average customer in a cafe subjected to an accident of this kind is one of bewilderment. All that he knows is that the owner spilled hot coffee on him while pouring it. His first impulse is to ask: Why did you spill the coffee on me? Did the pot break? It did? Why? Did you look at the pot before you poured the coffee? Accidents like this don't ordinarily happen without reason, do they? Please explain what caused you to spill the hot coffee on me. The owner has a duty to explain, and the customer has the right to an explanation.

Defendant's explanation was: When I poured the coffee, the glass fell off the pot. It was not "star" cracked. The pot had some hidden defect unknown to me and I am sorry.

Defendant did not testify that he inspected the pot before pouring the coffee nor that he knew "the hot pot was not fraught with a bad spot"; that it had not been bumped sufficiently to cause a "star" crack. As a result, defendant's explanation failed to establish, as a matter of law, that this accident was one which ordinarily does not happen in the absence of negligence.

We followed the guidelines suggested by the doctrine of res ipsa loquitur: (1) the common experience of mankind, (2) the knowledge of the cause of the glass falling off being accessible to defendant and not plaintiff, (3) the duty of defendant to exercise reasonable care not to "bump" the pot, (4) the duty of defendant to inspect the pot, and (5) the absence of an explanation by defendant that the accident did not arise from want of care. Tapia v. McKenzie, 83 N.M. 116, 489 P.2d 181 (Ct.App.1971), Sutin, J., Specially Concurring. A genuine issue of material fact exists.

Plaintiff is entitled to go to the jury under the doctrine of res ipsa loquitur. Tapia, supra (note error in headnote No. 7); Chapin v. Rogers, 80 N.M. 684, 459 P.2d 846 (Ct.App.1969) where a restaurant stool broke; Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956) where a restaurant chair collapsed; Lay v. Vip's Big Boy Restaurant, Inc., 89 N.M. 155, 548 P.2d 117 (Ct.App.1976) where restaurant window shattered.

Defendant believes that Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970) is analogous. We disagree. Rekart was not presented on the doctrine of res ipsa loquitur. Plaintiff was reaching for a carton of Dr. Pepper when a Pepsi Cola bottle fell and cut plaintiff. Plaintiff contended that defendant knew the soft drink display...