Gibson v. U.S.
| Decision Date | 18 February 1982 |
| Docket Number | No. 80-1017,80-1017 |
| Citation | 671 F.2d 204 |
| Parties | Helen R. GIBSON and Charles E. Gibson, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. J. Michael Cody, U. S. Atty., Timothy R. DiScenza, Memphis, Tenn., Robert S. Greenspan, Civ. Div., Appellate Staff, Dept. of Justice, Washington, D. C., for defendant-appellant.
James D. Senter, III, Humboldt, Tenn., for plaintiffs-appellees.
Before EDWARDS, Chief Judge, KENNEDY, Circuit Judge, and CECIL, Senior Circuit Judge.
Helen and Charles Gibson brought suit for injuries Mrs. Gibson suffered when she slipped and fell on some rice scattered on the aisleway of a Navy Commissary in Millington, Tennessee, operated by the United States Navy.
The United States, as defendant-appellant in this suit, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1976), contends that under Tennessee law plaintiffs proved no facts which serve to establish negligence on the part of the United States and its employees:
In the absence of proof by the Gibsons that the government breached its duty to exercise ordinary care or to correct defects of which it had actual notice or constructive notice, recovery under the Federal Torts Claim Act, applying the law of Tennessee, should not be allowed.
The District Judge who heard this case had long experience in Tennessee law. He relied in finding for the plaintiff on Allison v. Blount National Bank, 54 Tenn.App. 359, 390 S.W.2d 716 (1965). In that case the Tennessee Court of Appeals held:
The facts, concerning which there is no substantial dispute, are as follows:
The defendant, a national banking corporation, owns and operates a branch bank on the Old Knoxville Highway near Maryville, Tennessee. The lobby floor of the branch bank is constructed of terrazzo, light grey in appearance. The bank constantly keeps a hard, corrugated, rubber mat in place just inside the Rose Street entrance to the lobby and, on occasion, when customers track in water and it begins to accumulate, the bank places an absorbent mat or rug on the lobby floor next to the rubber mat. The bank's janitorial service is limited to the evening hours, and it is not the practice of the bank to mop up excess moisture from the lobby floor during banking hours.
On July 3, 1961, it rained intermittently throughout the morning hours, stopping just before the noon hour. At approximately 1:00 P.M., the plaintiff entered the bank lobby through the Rose Street entrance. The usual rubber mat was at the entrance; however, the absorbent mat or rug was not in place and had not been used during the morning hours. As plaintiff stepped from the rubber mat onto the terrazzo floor, her right foot slipped and she fell, receiving the injuries of which she complains.
The plaintiff described the manner of her fall as follows:
* * *"
After plaintiff's fall, her dress was found to be wet where it had come in contact with the floor, as was the side of her left shoe.
The plaintiff testified that, after her fall, she could see evidence that water had been tracked into the bank by prior customers. In explanation of her inability to see the water trackage prior to her fall, the plaintiff testified that the terrazzo floor was mottled, light grey in color, and that in the absence of a close examination, the presence of water was not evident. Plaintiff also stated that she was not on the lookout for the presence of water as it had stopped raining about one hour before she entered the bank lobby.
Mr. James A. Norton, the manager of the bank's branch office, testified that he had been present during the morning hours; that he knew it had been raining but had not noticed any accumulation of water on the floor of the bank and, consequently, had not placed the absorbent rugs at the entrance; that after plaintiff's fall, he examined the lobby floor and found a film of moisture on the floor as the result of water having been "tracked in" by customers prior to plaintiff's arrival.
We have been unable to find a reported Tennessee case wherein the Court has considered the liability of a proprietor of a place of business for an injury resulting from a fall on a floor made slippery by tracked-in water, snow and the like. However, numerous such cases from other jurisdictions are reported in the annotation beginning at page 6 of 62 A.L.R.2d.
We have read most of the cases reported in the annotation, as well as others cited in the briefs and revealed by our independent research, and have come to the conclusion that the duty owed by a proprietor of a place of business in the so-called trackage cases is the same as in any other situation where a dangerous condition is created on the premises by someone other than the proprietor or his employees-that duty is to exercise reasonable care to keep the premises in a reasonably safe and suitable condition, including the duty of removing or warning against a dangerous condition traceable to persons for whom the proprietor is not responsible, or to the action of the elements, if the circumstances of time and place are such that by the exercise of reasonable care the proprietor should have become aware of such condition. Walls v. Lueking, 46 Tenn.App. 636, 332 S.W.2d 692; Dolan v. Bry Block Mercantile Co., 23 Tenn.App. 47, 126 S.W.2d 376; Anno. 62 A.L.R.2d 6, 15 and 33. In the trackage cases, as in the others, liability is predicated on the proprietor's superior knowledge of the dangerous condition on his premises and he is not liable for injuries sustained from dangers that are obvious, reasonably apparent or as well known to the customer as to the proprietor. Kendall Oil Co. v. Payne, 41 Tenn.App. 201, 293 S.W.2d 40; Anno. 62 A.L.R.2d 6, 28.
Some factors to be considered in determining if there has been a reasonable time lapse for a proprietor of a business establishment to be chargeable with constructive notice of a condition endangering the safety of his customers are the nature of the business, the size of the store, the number of customers, the nature of the dangerous substance, its location, and the foreseeable consequences. Moore v. American Stores Co., 169 Md. 541, 182 A. 436; Hubbard v. Montgomery Ward & Co., 221 Minn. 133, 21 N.W.2d 229; see also cases cited under the heading "Time factor as affecting proof of constructive notice." Anno. 61 A.L.R.2d 126 et seq. Consequently, it is generally for the jury to say whether the condition causing the injury to a store customer had existed long enough that a reasonable man exercising reasonable care would have discovered it. Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 276 P.2d 118; Fox v. Ben Schechter & Co., 57 Ohio App. 275, 13 N.E.2d 730; Hogan v. S. S. Kresge Co. (Mo.App.1936), 93 S.W.2d 118.
In our opinion, under the facts in the present case, reasonable minds could disagree easily (1) as to the amount of water on the lobby floor, (2) the length of time it was present, and (3) whether or not the presence of the water was as reasonably apparent to the plaintiff as to the defendant. As a decision on the issue of liability, of necessity, would be based on their conclusions on these issues, it follows that reasonable minds could disagree easily as to whether the defendant was guilty of negligence in permitting water to accumulate on a terrazzo floor and in failing to warn plaintiff of its presence, and as to whether plaintiff was guilty of negligence in failing to observe the water before she fell.
"When a given state of facts is such as reasonable men may fairly differ upon a question as to whether there was negligence or not, the determination of the matter is for the jury." Knoxville Traction Co. v. Brown, 115 Tenn. 323, 330, 89 S.W. 319, 321.
The District Judge's treatment of the Tennessee law applicable to the facts of this case follows:
In this case we apply the law of the State of Tennessee even though this is a tort claim case wherein these Plaintiffs are suing the United States of America under what is commonly known as the Tort Claims Act.
By that act Congress has authorized and consented to suits against the government, provided they are done within the procedural requirements that Congress authorized the Executive Department to recognize. Among those, of course, is the duty to make a claim prior to filing a suit. And in this case the claim was made for Mrs. Gibson in the amount of thirty thousand and for Mr. Gibson in the amount of five thousand dollars.
The law of the State of Tennessee that is applicable to this case is that law which is commonly referred to as the duty of a proprietor of premises to the invitees.
This is a case wherein a customer in a self-service grocery store has sued the proprietor.
Now the duty is to use reasonable and ordinary care for the safety of invitees. This would include the remedying of any defects which were known or should have been known in the exercise of reasonable and ordinary care to those in charge of the operation.
This brings into play the circumstances of the operation, and the total picture on the morning that this Plaintiff, Mrs. Gibson, was injured.
The Court finds that on September 25, 1976 Helen R. Gibson was an invitee in the Commissary at the Millington Naval Air Base, and that some time about noon or thereafter she did in fact fall near aisle 4 of the commissary on some rice.
Now, there is a dispute about the amount of rice, but the Court finds that there was too much rice for safety, and more than four or five grains. The rice had been spilled on a...
To continue reading
Request your trial
-
Self v. Wal-Mart Stores, Inc.
...has required landlords and realty owners who deal with the public to respond "almost" as if they were insurers, Gibson v. United States, 671 F.2d 204, 209 n. 1 (6th Cir.1982), but subsequent Tennessee caselaw has reaffirmed that in slip-and-fall cases, at least, the proprietor or operator o......