Didier v. J.C. Penney Co., Inc., 88-5120
| Decision Date | 16 February 1989 |
| Docket Number | No. 88-5120,88-5120 |
| Citation | 868 F.2d 276 |
| Parties | Leora DIDIER, Appellant, v. J.C. PENNEY COMPANY, INC., a New York Corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Douglas M. Deibert, Sioux Falls, S.D., for appellant.
William Fuller, Sioux Falls, S.D., for appellee.
Before HEANEY and FAGG, Circuit Judges, and HANSON, * Senior District Judge.
Leora Didier appeals from the final decision of the District Court 1 dismissing her action against J.C. Penney Company, Inc. In the action Didier contends she was injured as a result of appellee's failure to properly maintain its premises. The District Court granted Summary Judgment in favor of appellee finding that Didier had, as a matter of law, assumed the risk which caused her injuries. We reverse.
On December 1, 1984 appellant slipped and fell while shopping in a store owned and operated by appellee. She slipped after stepping on the contents of a broken perfume bottle. Most of the specifics of the fall are best described by Didier's own deposition testimony:
Q. All right. Mrs. Didier, just tell me what happened as you walked through the Penney's store and you fell?
A. My daughter and I were together, and she was--she always walks a few feet ahead of me, and she was walking down the aisle, and I saw her slip and slide and slip and slide, and I saw all that glass and all that shiny stuff on the floor, and I thought, "I wonder if she's going--" I stopped for a minute, and then I thought she was going to fall, but then she caught a hold of the counter and she caught herself, and I thought, "Well, I'll take a step and see what happens to me," and then, bang, I was down on the floor unconscious with a broken back and leg.
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Q. All right. Do you remember seeing the perfume counter?
A. Well, we didn't expect anything like that. I walked down here (Witness indicating), and she was going like this (Witness indicating) and like this (Witness indicating), and finally she grabbed like this (Witness indicating), and I thought, "I wonder what's going on here?" And then I started to walk and I went down.
Q. You were indicating that your daughter--you were waving your hand back and forth, by that--
A. Well, she was going every which way because she was trying to catch herself. There was glass all the way down on the floor.
Q. About how far ahead of you was your daughter?
A. A few feet.
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Q. There was glass on the floor?
A. Glass on the floor the whole way.
Q. By the whole way, what do you mean by that?
A. Well, when I stopped and I looked where my daughter was sliding I could see that shiny stuff on the floor and the glass on the floor, and if you've got it on your shoes you would go quite a ways.
Q. And about--you say the whole way, I'm trying to get some idea of how much surface we're talking about.
A. I don't know. A few feet. I don't know.
Q. Did the glass and the--could you see the perfume or liquid on the floor, too?
A. Yes.
Q. Did the liquid cover the entire aisle or part of the aisle?
Q. See, that's linoleum going down there, and that was real slippery with all that goop on it. You could smell the perfume.
Q. Did the perfume cover the entire aisle or just part of the aisle?
A. I don't know. Enough to hurt me.
Diane Miller, Didier's daughter, provided the court with the following deposition testimony regarding the fall:
Q. Then after going through the blouse department, just tell me what happened then?
A. We started down this aisle, the middle aisle, I'm ahead of her, I'm shopping on this side and I'm looking on this side and I'm looking here. All of a sudden I'm falling. I don't know what's happening, but I'm falling. I'm just--and I grabbed a hold of a counter which was in the perfume department, it was like a glass counter, and I got a hold of this thing, and immediately I'm like hollering at her, "Be careful," and I started just right then, and I turned around and she's already going, she's already going.
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Q. If you recall, when was the last time that you looked at your mother before she fell? By that I mean where you were in the store.
A. I don't know. I can't remember.
Q. In any event, when you grabbed the perfume counter it was then that you turned around and yelled at your mother?
A. Not immediately, because I'm grabbing it and yelling, "Be careful." I'm trying to holler, "Be careful," and she's going, she's falling at that time.
Q. Did you actually turn around and look then when you were holding onto the perfume counter?
A. I can't remember. I know I hollered.
Q. About how far behind you was your mother when she fell?
A. A few feet.
Q. About how far were you able to walk from the time you first started to slip until you grabbed that perfume counter to hold yourself up?
A. Please reword that.
Q. About how far--what distance did you travel from the time you first started to slip or lose your balance until you grabbed the perfume counter to hold yourself up?
A. Oh, I'd say about four or five feet I'm struggling.
Q. After your mother fell, is that when you looked down and you saw the perfume and the glass? Let me withdraw that. When did you first see the perfume and the glass on the floor?
A. After I'm holding onto the counter.
Q. In any event, what did you see? When you looked down at the floor what did you see?
A. Lots of glass and lots of liquid, I mean a wet floor.
Q. And about how much of a surface area did this wetness cover?
A. Oh, a six to eight foot square, approximately.
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Q. Just tell me what happened--well, did you actually see your mother fall or did you turn around and she was already on the ground?
A. I did see her fall. I saw her in flight.
Q. And how did she come down, how did she land?
A. She came down on her back.
Q. And just tell me what happened after that?
A. She's laying on the ground, on the floor, on this wet floor, and I'm kneeling * * *
down over her in this glass and this wet floor.
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Q. As I understand it, you were right next to the perfume counter when this happened, so I want you to diagram on the exhibit the location of the perfume counter and where the perfume was situated on the floor. (Witness complies.)
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Q. And the circle next to the rectangle, that's the perfume on the floor: is that right?
A. And glass. Lots of glass.
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Q. Now on the exhibit it's almost a--well, I guess it's an oval shape. I'm trying to describe it.
A. Well, this is the aisle right here. (Witness indicating) It was all over in this whole aisle, that whole area. (Witness indicating)
Q. By--I'm not sure I understand you. What are you telling me? It was in the whole aisle? What do you mean?
A. Well, the aisles--maybe I don't know how wide the aisle is, but this glass and this fragrance, whatever it was, was distributed in this whole floor area.
Q. Are you saying that the perfume extended from one side of the aisle over to the other side of the aisle?
A. Yes.
Q. And in your estimation that's about how many feet?
A. I don't know. Approximately five feet, six feet. I don't know.
Q. And then what was the length of the wet area? You were telling me it went from--
A. About six, seven feet, eight feet.
Both of these depositions were taken on October 2, 1987. Mrs. Didier died on December 7, 1987 so her deposition will necessarily stand as her testimony at trial. There are no other persons known to have witnessed the fall, although three of appellees employees arrived on the scene while Didier was still on the floor. Two of these employees, Evelyn Evans and Jan Van Emmerick, assisted Mrs. Didier, while the third, George Seiler, cleaned up the broken bottle and perfume. Seiler cleaned up the perfume around Didier while she remained on the floor.
Deposition testimony of Evans and Van Emmerick, but not of Seiler, was presented to the court. Neither of these depositions includes any statements regarding whether Didier's location showed that she was in the midst of the hazard when she fell or just on the edge of it. Appellee moved for summary judgment on the basis of the four depositions arguing that they established as a matter of law that appellee was not negligent and that Didier had assumed the risk which caused her injuries.
The District Court denied appellee's motion on the issue of negligence but granted summary judgment on the issue of assumption of risk. It found that Didier's deposition testimony established that she had knowledge of the existence of the danger and an appreciation of its character, and that she voluntarily accepted the risk with sufficient time, knowledge and experience to make an intelligent choice. Appellant challenges this holding arguing that Didier was already in the midst of the hazard when she realized its existence, and that therefore she did not voluntarily accept the risk. Appellee argues that the court was correct on the assumption of risk issue but that it erred in not also granting summary judgment on the issue of negligence.
We first note our agreement with the District Court that it would have been error to enter summary judgment on the issue of appellee's negligence based on the evidence before it. The record demonstrates that there is a conflict regarding the amount of time the perfume was on the floor, a factor which could have a significant effect on the issue of whether appellee was negligent. The second issue, whether the District Court erred in granting summary judgment on the basis of assumption of risk, is more problematic.
The most relevant case on this issue is Myers v. Lennox Co-op. Ass'n, 307 N.W.2d 863 (S.D.1981). In Myers Judge Wollman wrote for a unanimous court that:
A motion for summary judgment can be granted only if there is no genuine issue with regard to any material fact. SDCL 15-6-56(c). Summary judgment is usually not appropriate for negligence actions. * * *
Ordinarily, questions of negligence, contributory...
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