Fuller v. Rahill, 43667
| Decision Date | 11 April 1972 |
| Docket Number | No. 43667,43667 |
| Citation | 496 P.2d 785 |
| Parties | Bernice FULLER, Applellant, v. William RAHILL and H. B. Shadid, d/b/a The O.K. Market, Appellees. |
| Court | Oklahoma Supreme Court |
Lampkin & Wolfe, by John W. Norman, Oklahoma City, for appellant.
Cook & O'Toole, Oklahoma City, for appellees.
In this slip and fall case, Appellant, hereinafter referred to as 'plaintiff', sued Appellees, William Rahill and H. B. Shadid, d/b/a The O.K. Market, hereinafter referred to as 'defendants', for damages on account of personal injuries she allegedly received as a result of a fall which began when she slipped on fruit on the floor of their said Market while in that store grocery shopping. The District Court, hereinafter referred to as 'trial court', sustained defendants' demurrer to plaintiff's evidence. On plaintiff's appeal from said ruling, the Court of Appeals, Division No. 2, reversed it. On certiorari to this Court, the decision of the Court of Appeals is reversed and the order and/or judgment of the trial court is affirmed.
The fruit on which plaintiff slipped was described in plaintiff's testimony as 'blue plums' and by another of the store's customers, Mrs. Lucretia Hendrix (who was plaintiff's principal witness by deposition), as a 'prune of something . . .' There was no direct evidence as to just how the offending fruit got on the floor, but, from the evidence as a whole, it may be reasonably inferred that it fell there from a so-called 'produced rack' extending along one of the store's aisles, where various kinds of fresh fruits and vegetables were displayed so that customers could walk along the aisle, view them, and select for themselves (self service) those which they desired to transport to one of the checkers at the front of the store for tallying and purchase.
In view of the absence of any evidence to show that the defendants, or any of their store employees, placed the fruit on the floor, or caused it to fall there, the crucial question in the case became: Was the fruit lying on the floor before plaintiff walked down the aisle along this produced rack, and, if so, was it there under such circumstances that the trial court should have overruled defendants' demurrer to plaintiff's evidence and submitted the case for the jury's determination as to whether or not the fruit had been on the floor a sufficient time, before plaintiff slipped on it, to have imparted constructive notice of its presence there, to have enabled them to remove it or to warn the customers of its presence?
Plaintiff's argument for reversal on appeal is premised mainly upon certain oral remarks the Trial Judge made in announcing his ruling on the demurrer. Plaintiff interprets these remarks as showing that the Judge found, in effect, that the evidence showed the prune or plums had lain on the floor where plaintiff stepped on it, and lost her footing, for fifteen minutes before this accident, and concluded that this was not a sufficient time for defendants to be found to have had constructive notice of its presence there. Plaintiff argues that whether or not fifteen minutes was a long enough period to have given defendants constructive notice of the fruit's presence on the floor was a question of fact properly determinable by the jury, and that the Judge exceeded a trial court's proper prerogative in purporting to decide that question. (In reversing the trial court, the Court of Appeals appears to have upheld this argument.) To the contrary, defendants contend, in brief substance, that plaintiff misinterpreted the Trial Judge's remarks, and that he did not say, or find, that the fruit had been on the floor any period of time before plaintiff's slip and fall occurred.
We need not engage in any discussion, or undertake any determination, of the correct interpretation of the Judge's remarks. However incorrect his reasons may have been for said ruling, if, on the basis of plaintiff's evidence, defendants' demurrer to it should have been sustained, we will affirm that court. See Winslow v. Watts, Okl., 446 P.2d 598. As to related matters, notice the discussion and citations in Thompson v. Inman, Okl., 482 P.2d 927, 937.
Accordingly, we have examined said evidence to determine whether it shows that the fruit was on the floor fifteen minutes (as plaintiff says it does), or any other period of time, prior to the instant plaintiff stepped on it. The only basis for answering this question is found in excerpts of plaintiff's and Mrs. Hendrix' testimony. The excerpt from plaintiff's testimony is as follows:
'Q Were you involved in an accident on August the 17th, 1968?
'A Yes, sir.
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'Q And did it occur approximately 2:30 in the afternoon?
'A It was about that time.
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'Q Describe in your own words, Mrs. Fuller, how the accident happened, . . .?
'A * * * I was walking down the aisle . . . I was looking at some canned goods, some vinegar and stuff over there, and . . .--all at once my feet slipped out from under me and my bottom part hit the floor, and my left hand hit a push cart on the opposite side of me, a lady was pushing a cart.
'Q All right, . . . could you determine what you had fallen on?
'A No, I didn't determine what I had fell on until I had got up.
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'Q When did you ever look around to see what you had fallen on?
'Q All right, can you describe these plums for me, how they looked after you saw them?
'A They looked kind of rotten.
'Q Did they appear to have been stepped on?
'A Yes.
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'Q * * * why didn't you see the plums before you stepped on them?
'A I was shopping; I was looking at the merchandise.
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'CROSS EXAMINATION
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'Q * * * How long had you been in the store?
'A Well, I don't exactly know how long, because I didn't time myself, but I hadn't been in there too long.
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'Q Is that a clean store?
'A Yes, it's a nice store.'
The excerpt from Mrs. Hendrix' testimony is:
'Q * * * How long had you been in the market prior to Mrs. Fuller's fall?
'A I had been in there about Ten or fifteen minutes.
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'Q * * * At the time she slipped and fell, do you know whether there was anything on the floor?
'A * * *--I didn't see nothing.
'Q Now, after she fell, what did you see?
'A She had her fott going out like that, and this prune was up under it. * * *
* * *
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'Q Only one?
'A That's all I noticed, . . .
'Q Where was it?
'A * * * . . .; it had scooted...
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