Giles v. Montgomery Ward Co.

• Decision Date: 22 December 1971
• Docket Number: No. 10789,10789
• Parties: Deloy GILES, Plaintiff-Appellant, v. MONTGOMERY WARD COMPANY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1256

491 P.2d 1256

94 Idaho 484

Deloy GILES, Plaintiff-Appellant, v. MONTGOMERY WARD COMPANY, Defendant-Respondent.

No. 10789.

Supreme Court of Idaho.

Dec. 22, 1971.

Gee & Hargraves, Pocatello, for plaintiff-appellant.

Ben Peterson, Pocatello, for defendant-respondent.

McFADDEN, Justice.

Appellant Deloy Giles brought this action against respondent Montgomery Ward Company for injuries he sustained when he fell in respondent's store in Pocatello. The complaint alleged negligence on the part of the respondent in maintaining a floor which was made slippery by some foreign substance. Subsequently respondent moved for summary judgment.

The district court entered summary judgment in favor of respondent since the deposition and affidavits revealed that appellant could not establish any negligence on the part of the respondent.

The following facts appear undisputed from the various affidavits submitted by the parties, and from appellant's deposition taken by respondent. On December 14, 1967, Mr. Giles and his young son were shopping in the Montgomery Ward Company store in Pocatello. After making a purchase Giles walked to another part of the store. It was at this time that he fell, suffering a broken ankle. Because of an injury suffered some years before, it was necessary for Giles to use a cane in order to walk. In his deposition Giles stated 'all of a sudden my cane just shot out from underneath me forward, and I don't know how many feet it went out there, and I balanced for a few seconds and I fell down.' He stated something slippery caused his cane to slip, but he was unable to identify what it was that was slippery. In his affidavit submitted after his deposition he stated that his fall was definitely caused by some moist or slippery substance on the floor which caused his cane to slip.

Giles' statements in his deposition and affidavit fail to disclose the he personally observed any object or substance on the floor. The affidavit of a customer in the store who helped Giles after his fall contains the following:

'* * * that your affiant personally examined the floor in the area where the man (Giles) fell and did not observe anything on the floor which could have caused the man's fall (Giles) and your affiant observed that the floor was not wet or moist anywhere in the area where the plaintiff fell, and that there was no sign of snow or ice or any other objects there which could have caused the plaintiff's fall * * *.'

The question then is whether the record presents any genuine issue of material fact as to the existence of a condition rendering the floor unsafe. Appellant's claim of negligence is based solely on his allegation that there was something slippery which caused him to fall. The affidavit of the customer is not, however, a mere conclusion but is a personal observation of fact and contradicts Giles' conclusion.

Appellant asks that this case be allowed to proceed on the basis of an alleged unsafe condition which evidently was not observed by anyone. To establish liability for negligence on the part of a landowner as against an invitee it must be established that the landowner failed to keep the premises in a reasonably safe condition, or failed to warn the invitee of hidden or concealed dangers of which the owner or one in charge knew or should have known by the exercise of reasonable care. Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965)....