Evans v. Hot Shoppes, Inc.

• Decision Date: 14 October 1960
• Docket Number: No. 2,2
• Citation: 164 A.2d 273,223 Md. 235
• Parties: Marlon H. EVANS et al. v. HOT SHOPPES, INC.
• Court: Maryland Court of Appeals

Page 235

223 Md. 235

164 A.2d 273

Marlon H. EVANS et al. v. HOT SHOPPES, INC.

No. 2.

Court of Appeals of Maryland.

Oct. 14, 1960.

Thomas S. Jackson, Kensington (Jackson, Gray & Jackson, Washington, D. C., on the brief), for appellants.

John M. McInerney, Bethesda (McInerney & Latham, Bethesda, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

When the trial court granted the defendant's motion for a directed verdict on the ground that the plaintiffs had failed to show any negligence on the part of the defendant restaurant operator, the plaintiffs appealed.

The plaintiffs-appellants are husband and wife; the husband sued for loss of consortium, medical, and hospital expenses of the wife paid by him; the wife for damages for personal injuries received by her, allegedly resulting from the negligence of the defendant in maintaining a paper and magazine rack in its restaurant, located at Langley Park in Prince George's County.

The lunch-room is entered by a revolving door that opens into a lobby 10 feet wide. Directly in front of the revolving door, at a distance of some 12 feet, is a three-fronted counter about 4 feet high, roughly resembling in shape the lower part of a capital J, with the edges of the counter forming straight lines instead of a curve. The central portion of the counter is utilized by the cashier; the lower section (closest to the entrance) displays cigars for sale, and the upper section trinkets. The magazine rack faced the revolving door and was located in front of the cigar counter, at the point where this section of the counter joined the central or cashier's portion of the three-faced counter.

To the left as one enters the lobby from the revolving door, there is a passageway some 7 1/2 feet wide that leads to a counter-service department. The customers who desire table service proceed directly across the lobby into an aisle about 7 1/2 feet wide (in doing so they pass by or alongside the cashier's section of the counter as well as the section that displays trinkets), and then turn right into the table-service department.

The floor of the restaurant was of flooring tile, a part of which was black and a part white. The counter had a black border some 5 or 6 inches wide.

The wood of the magazine and paper rack was of a grain and color which matched the color of the counter already described. All of the exact dimensions of the rack were not given, but some of them were; and there were three large pictures of the same introduced as exhibits. It was nearly the same height as the counter, and was about 12 to 15 inches wide. It had two shelves: one about 15 inches from the top for the purpose of displaying magazines (particularly Saturday Evening Posts in an upright position), and one about 5 inches from the floor for papers. The upper shelf was about 10 inches wide and the lower one, which formed a part of the base of the rack, approximately 15 inches in width. The sides of the rack came down to the first shelf in curves, then curved inward toward the rear and then curved out to make an attractive receptacle for the magazines and papers. The side of the rack, cut in a scalloped design as just mentioned, would face anyone standing at the cashier's counter who chanced to look to the left. The bottom of the rack had a black border of approximately the same width as that of the counter.

The appellant, Marion H. Evans, a housewife approximately 50 years of age, testified that in October, 1958, she, her elderly mother, and a woman friend went to the restaurant to have dinner; it was early in the evening, still light, and the restaurant was well-lighted; they had been there before, and, on the instant occasion, entered by way of the revolving door at the main entrance and proceeded directly ahead through the lobby, passed alongside the cashier's counter and turned to the right and entered the dining room, where they had dinner which consumed about 45 minutes.

After dinner, the appellant, her friend and her mother returned to the front or lobby area. The friend stopped to pay the check, and, while her friend was thus engaged, the appellant's attention was attracted to some cute little animal toys displayed in a rack located to the left (upon entering) of the revolving door. She was amused by, and interested in, the toys, and wanted her friend to see them. She recrossed the lobby to a position to the left of her friend, who was standing at the cashier's section of the counter. She told her friend to come and see the toys after she had paid the check.

At this time, the appellant was facing the cashier's counter with the magazine rack just to her left. She turned to her left intending to return to the toy rack. As she did so her right ankle struck the rack, she tripped off balance, fell, and was injured.

Mrs. Evans also testified that, although she had been in the restaurant many times before (and her testimony shows that on this occasion she had passed by or alongside the rack at least three times) she never noticed the rack before she struck her ankle against it.

The appellants contend that in permitting the use, in an area designed to divert a customer's attention by the display of merchandise, of a rack with a protruding bottom shelf, so turned that the protruding shelf extended into an oft-frequented aisle, and so colored that it blended with the counter and the floor, the defendant was negligent. The appellee says the testimony and exhibits reveal no more than an ordinary piece of business furniture, customarily used by operators of restaurants for display of magazines and newspapers, which was easily discernible in a well-lighted position.

The applicable law seems to be well settled in Maryland, as well as elsewhere. Being a business invitee, Mrs. Evans was owed the duty of ordinary care and caution by the restaurateur to see that that portion of its premises used by its patrons was in such a condition as not to imperil her, so long as she, herself, exercised ordinary care. Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 450, 146 A. 282; Morrison v. Suburban Trust Co., 213 Md. 64, 66, 130 A.2d 915. See also Harper and James, The Law of Torts p27.12; 65 C.J.S. Negligence § 45; 38 Am.Jur., Negligence, p131; Prosser, Torts (2nd Ed.), p. 459; Ludloff v. Hanson, 220 Md. 218, 151 A.2d 753. As early as the case of Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552, 556, 192 A. 419, this Court quoted with approval the general rule embodied in Section 343 of the Restatement, Torts, which states, in part, that 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 should 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. Judge Offutt, who wrote the opinion, was careful to point out the difference in the cases where the injuries complained of were caused by some abnormal or unusual condition of the premises which created a danger which the...