Dubry v. Safeway Stores, Inc.
Jurisdiction | Oregon |
Parties | Mark A. DUBRY, Appellant, v. SAFEWAY STORES, INC., a Maryland corporation, Respondent. 82-51-; CA A28261. . * |
Citation | 689 P.2d 319,70 Or.App. 183 |
Docket Number | J-3 |
Court | Oregon Court of Appeals |
Decision Date | 08 January 1985 |
Jerry E. Gastineau, Medford, argued the cause and filed the brief for appellant.
Robert L. Cowling, Medford, argued the cause for respondent. With him on the brief was Cowling & Heysell, Medford.
In this personal injury action, plaintiff alleged that he slipped on foreign material on the floor of defendant's grocery store and fell. The court granted defendant's motion for summary judgment. Plaintiff appeals, and we affirm.
Plaintiff alleged that defendant was negligent in one or more of the following particulars:
Citing Diller v. Safeway Stores, Inc., 274 Or. 735, 548 P.2d 1304 (1976), defendant moved for summary judgment on the ground that plaintiff did not show that either "defendant placed the foreign material on the floor, or that the foreign material was on the floor for such a period of time that defendant should have known of it." Defendant attached to its motion portions of plaintiff's deposition. Plaintiff filed no counter-affidavits, but contended that the pleadings and deposition submitted by defendant demonstrated that there was a material question of fact as to the issues identified by defendant.
Included in the portions of plaintiff's deposition were the following statements:
In his deposition, defendant said he slipped in the aisle between the meat and cheese section near the bacon display. He described the material on which he allegedly slipped as more than one leaf compressed together in a clump about 1 1/2 inches in diameter. There was no evidence that there was a display of vegetable material or a floral display near where plaintiff fell that contained leafy material comparable to that described by plaintiff.
As the party moving for summary judgment, defendant had the burden of establishing that there were no triable issues of fact and that it was entitled to judgment as a matter of law. We draw all inferences of fact from the deposition in favor of plaintiff as the party opposing the motion. Seeborg v. General Motors Corporation, 284 Or. 695, 588 P.2d 1100 (1978).
Defendant contends that the evidence did not show that the material had been on the floor for a sufficient length of time that it can be established that it should have known about it.
Plaintiff contends that the court impermissibly resolved an issue of fact on a motion for summary judgment. We agree that weighing the evidence is not the court's role in a summary judgment determination. McKee v. Gilbert, 62 Or.App. 310, 661 P.2d 97 (1983); Klimek v. Continental Ins., 57 Or.App. 435, 645 P.2d 553 (1982). We also bear in mind that negligence is ordinarily a question of fact to be decided by the jury. See, e.g., Jones v. Oberg, 52 Or.App. 601, 628 P.2d 773, rev. den. 291 Or. 662, 639 P.2d 1280 (1981). However, in order for there to be a triable issue as to whether defendant's conduct did or did not meet the appropriate standard of care there must be evidence of defendant's conduct before it can be compared with the relevant standard of care. In the context of the case, the relevant conduct is defendant's knowledge that the foreign material was on the floor. There had to be evidence from which a jury could find that the foreign material was on the floor for a sufficient period of time that defendant could have known of its existence. In assessing whether there is a triable issue on a motion for summary judgment, the task is conceptually similar to evaluating whether a case should go to a jury after the evidence is presented or whether a judgment n.o.v. should be granted after a verdict.
In Diller v. Safeway Stores, Inc., supra, the court affirmed a judgment n.o.v. for defendant, concluding that in the absence of evidence from which a reasonable inference could be drawn as to how long the lettuce and water on which plaintiff slipped had been on the floor, there was no basis for the jury verdict for plaintiff. The plaintiff had slipped on a lettuce leaf and a puddle of water. There was evidence that the lettuce had come from a produce display of lettuce packed with ice. Plaintiff argued that the jury could infer that ice had fallen from the display and been on the floor long enough to melt, creating the puddle of water. The court rejected that argument, saying:
274 Or. at 739, 548 P.2d 1304.
In Pavlik v. Albertson's, Inc., 253 Or. 370, 454 P.2d 852 (1969), the court held that there was insufficient evidence to sustain the jury's verdict on the specification of negligence that defendant knew or should have known that the lettuce leaf on which plaintiff slipped was on the floor and was negligent in not removing it. The court said there was no evidence from which it could be inferred that the leaf had been on the floor any longer than a few seconds before plaintiff fell. In that posture of the evidence, there was no basis for concluding that the defendant was negligent in not removing the leaf. The court noted that the only evidence that the lettuce leaf had been on the floor any length of time was plaintiff's testimony that the leaf was "well marked." The court said:
"We do not believe that such evidence is sufficient to draw the inference because the leaf could hardly have appeared otherwise after plaintiff stepped on it." 253 Or. at 375, 454 P.2d 852.
See also Weiskopf v. Safeway Stores, 271 Or. 630, 533 P.2d 347 (1975).
Plaintiff concedes that there is no evidence that defendant's employes caused the material to be on the floor or that defendant or its employes actually knew that it was on the floor. The parties agree that the relevant inquiry is whether there is evidence that the material was on the floor for such a length of time that defendant could have, by the exercise of reasonable diligence, discovered and removed it.
In George v. Erickson's Supermarket, Inc., 236 Or. 64, 386 P.2d 801 (1963), involving the same issue as in this appeal, the court quoted with approval from Prosser, Torts, 200, § 42 (2nd ed 1955):
" " 236 Or. at 66, 386 P.2d 801.
As the cases we have cited regarding a slip and fall indicate, there must be some evidence of how long the offending material was on the floor of the commercial establishment. It is not sufficient to impose liability that the material was on the floor. The occupier of a commercial establishment has a duty to its customers to keep the floors clean but it is not an insurer of their condition. Pavlik v. Albertson's, Inc., supra. Neither is it sufficient that there are equal probabilities that the material was there for two seconds or two hours. The factfinder cannot be allowed to substitute conjecture or speculation for...
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