Erickson v. Walgreen Drug Co.

• Decision Date: 01 June 1951
• Docket Number: No. 7444,7444
• Citation: 232 P.2d 210,120 Utah 31,31 A.L.R.2d 177
• Parties: , 31 A.L.R.2d 177 ERICKSON, v. WALGREEN DRUG CO. et al.
• Court: Utah Supreme Court

Page 210

232 P.2d 210

120 Utah 31, 31 A.L.R.2d 177

ERICKSON, v. WALGREEN DRUG CO. et al.

No. 7444.

Supreme Court of Utah.

June 1, 1951.

Moreton, Christensen & Christensen, Salt Lake City, for appellants.

Rawlings, Wallace, Black, Roberts & Black, Salt Lake City, for respondent.

WOLFE, Chief Justice.

Action by the respondent against the Walgreen Drug Company and the Salisbury Investment Company to recover damages for personal injuries sustained by her when she slipped and fell on the terrazzo floor of an entranceway in a building constructed and owned by the Investment Company and leased, in part, by it to the Drug Company. In the court below a jury returned a verdict of $8,000 against the Drug Company but found no cause of action against the Investment Company. The Drug Company, hereinafter referred to as the appellant, prosecutes this appeal, relying principally upon the contention that there is no evidence to sustain a finding of negligence on its part.

The appellant operates a drug store on the southeast corner of Main and Second South Streets in downtown Salt Lake City, Utah. The entranceway to the store in which the respondent fell is at the northwest corner of the building and consists of a revolving door in the center with an ordinary swinging door on each side thereof. The doors are recessed from the sidewalk and between them and the sidewalk is a terrazzo slab, sloping slightly toward the street and away from the building in a fan shape and joining the sidewalk approximately eight to nine feet from the doors. A canopy covers the entranceway.

At the time of the accident it was raining and the streets were wet. As the respondent approached the appellant's store with the intention of entering therein for the purpose of making a purchase, she noticed several people standing under the shelter of the canopy. After stepping from the cement sidewalk onto the terrazzo floor of the entranceway and walking four or five steps at an ordinary gait, she reached out to open the right-hand swinging door when her right foot slipped on the terrazzo surface and she fell, sustaining a fracture of the femur of her right leg. The terrazzo surface was wet, apparently from water tracked in from the street by persons entering the store. The respondent testified that she noticed that the floor of the entranceway was wet before she fell. She was wearing shoes with Cuban leather heels approximately one and one-half inches high.

In her complaint the respondent alleged (1) that the Investment Company was negligent in the manner in which it constructed and maintained the terrazzo floor in that it became very slippery when wet, and (2) that the appellant knew or should have known of the propensities of the floor to become slippery when wet and was negligent in failing to warn customers using the entranceway of the hazard involved or to obviate the slippery condition by covering the floor with mats or by the use of other means. Under the lease between the Investment Company and the appellant, the former, as lessor, was obligated to make all exterior and structural repairs to the building, including repairs to the sidewalk and entrances to the building.

As heretofore stated the appellant's principal contention upon this appeal is that there is no competent evidence in the record to sustain a finding of negligence on its part in the particulars alleged by the respondent set out above. After a careful examination of the record we are convinced that this contention must fail. It thus becomes necessary to briefly summarize the evidence.

One Raymond J. Ashton, the associate architect of the building, testified that the specifications for the building required carborundum to be spread in the finishing coat in the terrazzo floor to form a grit to give secure footing and make the use of mats unnecessary; that he recently examined the terrazzo slab and found the carborundum grit present; that the plans called for a slope of 1/16th of an inch to the foot in the floor of the entranceway; that the floor sloped in two directions but the slope was almost imperceptible and unusually flat for an entranceway; and that in his opinion the type of construction employed in the entranceway in question was the safest type that his profession had been able to employ.

A university professor, with a doctor's degree in physical chemistry, and engaged at the time of the trial in a surface chemistry project sponsored by the Navy, one George R. Hill, testified that he had performed certain experiments on the terrazzo floor in question and also on the city sidewalk adjoining it and that they revealed that both the terrazzo and the sidewalk had the same co-efficient of friction; that water on a surface acts as a lubricant so that if a foot started to slide it would continue to slide more easily than were the surface dry; that although there were quite a number of irregularities in the surface of the terrazzo slab which were apparent to the touch, and although it was 'fairly worn', the carborundum had not worn off; that in his opinion the floor was a safe surface to walk upon; and that in the last few years terrazzo had been used more extensively in entranceways than either marble, tile, cement or asphalt.

One Frank Caffall, a tile and terrazzo contractor, testifying on behalf of the plaintiff, stated that he had examined the terrazzo slab in question but because it was constructed of black marble and green cement, it was difficult to tell whether there was any non-slip aggregate in it, although when he slid his foot over the surface it felt as though there were none; that the surface of the terrazzo had been ground smooth and was 'quite slippery' when wet; that even though terrazzo is constructed with non-skid abrasive, through constant wear the abrasive comes less effective; and that in his opinion a terrazzo surface when wet is more slippery than the wet surface of other materials commonly used in store entranceways because terrazzo is ground smoother.

There was also testimony adduced that about half of the entranceways to the stores and business houses along Main Street from South Temple Street to Fourth South Street in Salt Lake City, a distance of four blocks, were constructed of terrazzo; that most of these entranceways were uninclosed like the appellant's, but that a few had storm doors; that some of the storekeepers placed mats in their entranceways when it stormed and that the appellant had, at times, placed mats over the center of the terrazzo slab leading directly into the revolving door. However, there was no evidence that mats had been used for protecting the sections of the entranceway leading to the swinging doors on each side of the revolving door.

The duty owed to the respondent by the appellant is stated in Section 343 of the American Law Institute's Restatement of the Law of Torts as follows:

'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

'(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and,

'(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and

'(c) invites or permits them to enter or remain upon the land without exercising reasonable care

'(i) to make the condition reasonably safe, or

'(ii) to give a warning adequate to enable them to avoid the harm * * *'

From all of the evidence, we think a jury could reasonably conclude that the appellant knew or should have known of the propensities of its terrazzo entranceway to become slippery when wet and should have realized that because of those propensities it created an unreasonable risk to business visitors who would not discover the slippery condition and realize the risk involved therein. It is true that the respondent had crossed the terrazzo slab many times prior to the accident; that on this particular occasion she knew the terrazzo floor was wet and as a reasonable person should have realized the increased possibility of her slipping. Yet according to Mr. Caffall, the terrazzo slab was 'quite slippery' when wet and felt as though it did not contain any abrasive; that the slab was smooth and being constructed of terrazzo was more slippery when wet than the wet surface of other materials commonly used in entranceways. Mr. Hill agreed that the slab had sustained considerable wear. As to these matters, we cannot, as a matter of law, charge the respondent with knowing. While the floor appears to have been initially constructed so as to be reasonably safe for travel, a jury could conclude that the surface had, from continual wear, worn smooth and the abrasive become less effective to secure footing.

While there is no evidence of any incident occurring which would have put the appellant on notice that the terrazzo was slippery when wet, such evidence is not necessary to establish liability on the part of the appellant. The latter was in the actual possession of the building and had a duty to search out defects in the premises in order that they be reasonably safe for the presence of business visitors.

This is not the case of a business visitor slipping on some foreign substance such as oil, which had carelessly been spilled on the floor only a short time prior to the accident. In such cases it is often held as a matter of law that the storekeeper had no knowledge nor could he be charged with knowledge of the presence of the foreign substance which caused the fall. But in the instant case the jury could find that through constant wear the terrazzo slab had over a period of time become smooth, resulting in it being very slippery when wet. Although there was evidence that no one else had complained of falling on the terrazzo, slab, it may have been so slippery when wet that the appellant should...