Foodtown Stores, Inc. v. Patterson

CourtSupreme Court of Alabama
Citation213 So.2d 211,282 Ala. 477
Decision Date27 June 1968

Holberg, Tully & Hodnette, Mobile, for appellant.

Hogan, Helt & Conway, Mobile, for appellees.

KOHN, Justice.

Mrs. Mary Patterson, appellee in 1 Div. 279, brought suit against Foodtown Stores, Inc., to recover damages for personal injuries allegedly suffered when she slipped and fell in Foodtown Stores' self-service grocery store in Mobile. Floyd L. Patterson, appellee in 1 Div. 279--A, brought suit for loss of his wife's 'society, consortium and service,' and for expenditures made by him, and which will be required in the future 'in and about the care and treatment' of his wife.

The complaint, in each case, charges that defendant negligently permitted or caused 'a bean or beans to be or remain on the floor' of defendant's store and 'as a proximate result of said negligence' Mrs. Patterson 'was caused to slip and fall' and received the injuries complained of.

Both cases were tried together before a jury. There was a separate verdict and judgment thereon in each case in favor of each plaintiff. Defendant brings these appeals from those judgments, and also from the judgment in each case overruling its motion for a new trial. Both cases were submitted here on one record.

The accident complained of by Mrs. Patterson occurred on January 16, 1960, between 6:00 and 7:00 P.M., in defendant's food store in Mobile, Alabama. Mrs. Patterson entered the store for the purpose of purchasing several items, and had proceeded to the produce department to pick up two cartons of beer. She picked up the beer and was returning to her grocery cart when she fell. She was knocked unconscious by the fall, and testified that, upon regaining consciousness, she saw two snapbeans on the floor. There is no evidence as to the condition of the beans, and Mrs. Patterson stated that she did not see anything on the floor prior to her fall.

Billy E. Griffin, and employee of defendant at the time of the accident, testified that, at the time of the fall, he was in the back room of the store, but that prior to this, he had been in the produce section where he had swept and straightened up for inventory; that he had been in the back of the store for approximately ten minutes, but had cleaned and swept the area before leaving, and that at that time, there were six or seven customers at the produce rack; that when he left the produce section, he did not see anything on the floor, nor did he ever see the bean that Mrs. Patterson said she stepped on.

Another employee of defendant, Stanford Gollotte, testified that he had also swept the produce area earlier, and as a matter of practice usually went over and checked the produce area after seeing customers there, to see if they had dropped anything on the floor. That, on this occasion he was busy operating one of the cash registers, and for this reason did not check the produce area although he saw several customers over there.

The principal question on this appeal is whether there was sufficient evidence to submit the case to the jury. Our conclusion is that it was not error to deny defendant's requested affirmative charge with hypothesis in each case, nor to overrule defendant's motion for a new trial in each case on the ground that the verdict was contrary to the great preponderance of the evidence.

Mrs. Patterson was an invitee of the defendant and the defendant, therefore, was charged with the duty of using ordinary or reasonable care to keep its premises in a reasonably safe condition. The rule is that in an invitor-invitee relationship, the invitor is not the insurer of the safety of its invitees, nor does the principle of res ipsa loquitur apply. No presumption of negligence arises from the mere fact of injury to an invitee. See: Maybilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590; Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87, 90--91; Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177; S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171; Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So.2d 741; Great Atlantic & Pacific Tea Company v. Popkins, 260 Ala. 97, 99, 69 So.2d 274; Kittrell v. Alabama Power Co., 258 Ala. 381, 63 So.2d 363; Ten Ball Novelty & Mfg. Co. v. Allen, 255 Ala. 418, 51 So.2d 690; Britling Cafeteria Co. v. Naylor,254 Ala. 84, 47 So.2d 187; F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667.

The appellant bases his argument on the holdings of this court in the case of S. H. Kress & Co. v. Thompson, supra, and the three Great Atlantic and Pacific Tea Company cases, supra. These and other pertinent cases were recently summarized in a well-written opinion of this court in the case of Maybilt, Inc. v. Deese, supra. In Maybilt, Inc. v. Deese, supra, the court, in holding that the plaintiffs had not met the burden of proof placed on them in establishing the alleged negligence of the defendant, quoted the following from S. H. Kress & Co. v. Thompson, 267 Ala. 566, 569, 103 So.2d 171, supra.

'The rule is also well established that if there is evidence which tends to show that a foreign substance has been on the floor for a long while, it is proper for a jury to impute negligence to the defendant for not discovering and removing such foreign substance. Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274; Rowe v. Albama Power Co., 232 Ala. 257, 167 So. 324; Anjou v. Boston Elevated Railway Co., 208 Mass. 273, 94 N.E. 386. So to prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. * * *

* * *

* * *

'It is not necessary, however, to enter direct evidence as to the length of time a foreign substance has remained on the floor; it is permissible to allow a jury to infer the length of time from the nature and condition of the foreign substance. In Great Atlantic & Pacific Tea Co. v. Popkins, supra, wherein the plaintiff slipped on a lettuce leaf, this court stated (260 Ala. 97, 69 So.2d 276):

"* * * The lettuce leaf was shown to have been dirty, crumpled and mashed. The jury could find from that condition the it had been on the floor long enough to have raised a duty on defendant to discover and remove it. * * *'

'In the instant case, there was no evidence introduced as to how long the foreign substance upon which Mrs. Thompson slipped was on the floor. For aught that appears from the evidence introduced, it might have been dropped upon the floor a minute before the appellee slipped upon it. No evidence was introduced to the effect that the appellant or any agent of the appellant knew the substance was on the floor. * * *'

It is upon this language that the appellant bases his contention for a reversal of the cases. We do not agree.

This court judicially knows that markets and supermarkets today are not like the old time corner grocery store where customers came in at infrequent times, and were waited upon and did not have to 'serve themselves.' We also know that often several customers will be selecting produce at the same counter at the same time, and such was the tendency of the evidence in these cases. To hold as a matter of law that a customer has to spend some of his time looking for beans and other vegetable matter on the floor surrounding the counter and area, where and while the customer was shopping, would place a higher duty upon the customer than the law requires. First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So.2d 18.

There are many factual matters that are involved in cases such as this--as examples: How old was the plaintiff? Her general health at the time of the accident? How much did she weigh? Was she wearing high or low heels? Was she under medication at the time that could have caused her to lose her equilibrium? Did she wear glasses? Bifocals? How long since they were changed or corrected? What was the condition of the floor as to color? Was it a slippery floor, or did it have a non-slippery surface? Countless other matters are important and usually present in such a case as this. All of such, however, are factual and for the jury to consider in each case, after proper instructions from the court. We think the facts in this case are distinguishable from the facts in Maybilt, supra, and the Kress case, supra. Here there was ample evidence from which the jury could have inferred negligence. One employee of the store who was in the area of the scene of the accident some ten minutes before it happened, admitted six or seven customers were at the produce counter where the plaintiff was, or in the general area. There was also evidence that vegetables or produce did sometimes fall into the aisle. The jury could have inferred that due to the presence of such vegetable matter on the counter, and the presence of six or seven other customers at the counter, vegetable matter could have very easily been knocked off to the floor by one of these six or seven customers. Further, there was evidence that about ten minutes had elapsed between the time an employee of the store swept the floor in this area on the day of the accident, and the time of the accident. This particular employee admitted that there were six or seven people present at this counter, yet he left the scene and had been gone approximately ten minutes before the accident. The jury could well have reasonably inferred that this witness, when he was sweeping or cleaning, was not just exercising but was moving some debris or vegetable...

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