George v. Fox West Coast Theatres

• Decision Date: 28 February 1974
• Docket Number: CA-CIV,No. 1,1
• Citation: 21 Ariz.App. 332,519 P.2d 185
• Parties: Francis L. GEORGE and Troy Christine George, his wife, Appellants, v. FOX WEST COAST THEATRES, a Delaware corporation, Appellee. 2018.
• Court: Arizona Court of Appeals

Page 185

519 P.2d 185

21 Ariz.App. 332

Francis L. GEORGE and Troy Christine George, his wife, Appellants, v. FOX WEST COAST THEATRES, a Delaware corporation, Appellee.

No. 1 CA-CIV 2018.

Court of Appeals of Arizona, Division 1.

Feb. 28, 1974.

Cunningham, Goodson & Tiffany, Ltd. by James P. Cunningham, Phoenix, for appellants

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by Richard J. Woods and Thomas A. McGuire, Phoenix, for appellee.

OPINION

HATHAWAY, Chief Judge.

Plaintiffs Francis L. George and Troy Christine George appeal from a judgment entered upon a directed verdict in favor of defendant Fox West Coast Theatres and from an order denying their motion for a new trial.

The facts taken in a light most favorable to plaintiffs are as follows: Mrs. George (hereinafter referred to as plaintiff) slipped and fell while leaving defendant's theatre after viewing two movies and suffered physical injuries. The entrance to defendant's theatre consisted of a sloping ¹ terrazzo ² surface between the curb of the street and several sets of double doors entering the theatre. A box office was located in the center of the terrazzo and a large marquee overhung the entire entrance area. There were metal thresholds at each set of double doors on the floor between carpet on the inside of the theatre and terrazzo on the outside. There were two square holes in each metal threshold measuring 1 inch by 5/8 inch. The purpose of these holes was to secure a bolt attached to each double door when the door was closed.

On the day of the accident it had been raining for several hours and the terrazzo surface was wet. Plaintiff had realized upon entering the theatre that the terrazzo surface was wet and slippery. Although plaintiff was in the midst of 'quite a few' people as she left the theatre, she could see through the open double doors that the terrazzo was wet outside. She therefore stepped carefully. However, she did not see the bolt hole in the metal threshold and her left heel became caught in it. ³ As she stepped out the door with her right foot, it began slipping forward until she lost her balance, fell to the floor, and sustained injuries. Her right foot slid so far that it pulled her left foot out of the left shoe caught in the threshold.

At the end of plaintiff's case, the trial court directed a verdict for defendant.

In Martinez v. Lucky Stores, Inc., 18 Ariz.App. 412, 502 P.2d 1089 (1972), we considered whether the evidence justified a directed verdict in defendant's favor when plaintiff had slipped and fallen on a slippery floor within defendant's store. We outlined the elements of plaintiff's prima facie case as follows:

'. . . (1) that there was a duty on the part of defendant to maintain the floor in a reasonably safe condition; (2) a breach of that duty; (3) that the plaintiff slipped as a result of defendant's negligence and (4) that the defendant knew or ought to have known of the dangerous condition of the floor.' (18 Ariz.App. 413, 502 P.2d at 1090) (Footnote omitted)

I. DUTY

The owner of a business is not an insurer of the safety of a business invitee and the mere occurrence of a fall on a floor is insufficient to prove negligence on the part of the proprietor. Walker v. Montgomery Ward & Company, Inc., 20 Ariz.App. 255, 511 P.2d 699 (1973); Compton v. National Metals Company, 10 Ariz.App. 366, 459 P.2d 93 (1969). However, the proprietor owes a duty to invitees to maintain his premises in a reasonably safe condition. In S. H. Kress & Co. v. Evans, 70 Ariz. 175, 178, 218 P.2d 486, 488 (1950), our Supreme Court said:

'(T)he owner of a store must maintain the floors which the public is invited to use in such condition that under the circumstances of the particular case, they are reasonably safe for a customer to use.'

II. BREACH OF DUTY

We must next decide whether plaintiff, as a matter of law, totally failed to show that the entranceway was maintained in an unreasonably dangerous condition. We reject defendant's assumption that the one inch by five-eighth's inch bolt hole was not, as a matter of law, unreasonably dangerous. Defendant argues that plaintiff conceded that the bolt hole was safe in her opposition to a pretrial motion for summary judgment. Any statements made in relation to a motion for summary judgment have no relation to the framing of issues for trial. Triable issues are governed by the pleadings or a pretrial order. A.R.Civ.P. Rule 16(a), 16 A.R.S.

Plaintiff's proof that there was a one inch by five-eighth's inch bolt hole, that it was in a place where large numbers of people walk, and that her heel fit within this hole was enough evidence from which a jury could draw an inference that this condition was unreasonably dangerous. Where there is credible evidence from which negligence might be inferred, it is a question for the jury to determine whether there has been such negligence. Shell Oil Company v. Collar, 99 Ariz. 154, 407 P.2d 380 (1965). A lack of expert testimony as to the safety of the bolt hole does not automatically defeat plaintiff's case. A jury is not prevented 'from using . . . (its) own good judgment and from concluding that a particular practice or condition is unreasonably dangerous, just because there is an absence of expert opinion.' Atchison, Topeka and Santa Fe Railway Co. v. Parr, 96 Ariz. 13, 18, 391 P.2d 575, 578 (1964) (jury allowed to consider whether restricted visibility of cab in crane was unreasonably dangerous condition although no expert was produced to testify to such a conclusion).

As to the condition of the floor, plaintiff testified that once her left heel caught in the bolt hole, her right foot 'just kept going' on the terrazzo surface. She stated that the terrazzo was wet and slippery from rainwater at the time and that there was no sign or other device which would warn patrons of the slippery surface. Plaintiff introduced answers to interrogatories given by defendant stating that the terrazzo was installed in 1931 and that no modifications, alterations, improvements, or construction had been performed upon the entrance to the theatre since that date. She then called Mr. P.E. Buchli, an architect, who was familiar with terrazzo as a construction material. He testified that pedestrian traffic tends to wear it down and make it smoother. He stated that he had examined the surface upon which plaintiff had fallen and, in his opinion, it contained no abrasive aggregate which might render it a 'non-skid' surface. When questioned as to the effect of water upon terrazzo, he replied that water makes it more slippery. He also noted that a slope would add to the slipperiness. When asked to consider all the facts surrounding the incident, Mr. Buchli was of the opinion that the terrazzo surface would be slippery for pedestrian traffic.

In Martinez v. Lucky Stores, supra, we reversed a directed verdict in favor of the defendant noting:

'Where a floor is maintained in a slippery condition it can be expected that a person may slip and fall. Whether the defendant maintained its floor in an unreasonably slippery condition causing plaintiff-wife's injuries, becomes a question to be determined by the jury.' (18 Ariz.App. at 414, 502 P.2d at 1091).

It is our opinion that sufficient evidence was presented to support a jury finding that defendant had breached its duty to maintain its entrance in a reasonably safe condition.

Defendant argues that there was no breach of duty as a matter of law here because plaintiff realized that the floor was slippery at all times prior to her fall. It argues that there was no 'superiority' of knowledge on defendant's part as required by Daugherty v. Montgomery Ward, 102 Ariz. 267, 428 P.2d 419 (1967). In Daugherty the court, quoting from Foster v. A. P. Jacobs and Associates, 85 Cal.App.2d 746, 193 P.2d 971, 975 (1948), held that 'there is no liability for injuries from the dangers that are obvious, or as well known to the person injured as to the owner or occupant.' (Emphasis in original) (102 Ariz. at 269, 428 P.2d at 421).

Plaintiff testified that she knew there was water on the terrazzo and that therefore she stepped carefully out onto the surface. However, she made it clear that she never saw the bolt hole in which she caught her left heel and had forgotten that the terrazzo sloped downward. She clearly was not aware of the entire condition with which she was confronted as she stopped out of the theatre.

Moreover, even assuming the combination of the bolt hole and the slippery terrazzo was open and obvious, a trial court cannot take the case from the jury unless it was so open and so obvious as to render the condition safe as a matter of law. See Daugherty v. Montgomery Ward, supra. In Cummings v. Prater, 95 Ariz. 20, 26--27, 386 P.2d 27, 31 (1963), our Supreme Court considered the 'open and obvious' rule as it affects a defendant's duty:

'One of the tests used in determining whether a condition is unreasonably dangerous is whether it is 'open and obvious' or as it has been better put:

'If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.' Harper and James, supra. Sec. 27.13.

Of course, the bare fact that a condition is 'open and obvious' does not necessarily mean that it is Not unreasonably dangerous. Harper and James, 27.13.

The open and obvious condition is merely a factor to be taken into consideration in determining whether the condition was unreasonably dangerous.' (Emphasis in original)

In 2 Restatement of Torts 2d, § 343A(1), the American Law Institute also recognizes that a condition is not necessarily rendered safe as a matter of law merely because it is open and obvious:

'(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is...