Glover v. Montgomery Ward & Co., 46511

• Decision Date: 09 July 1974
• Docket Number: No. 46511,No. 2,46511,2
• Citation: 536 P.2d 401
• Parties: Myrtle GLOVER, Appellant, v. MONTGOMERY WARD AND COMPANY, a corporation, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 401

536 P.2d 401

Myrtle GLOVER, Appellant, v. MONTGOMERY WARD AND COMPANY, a corporation, Appellee.

No. 46511.

Court of Appeals of Oklahoma, Division No. 2.

July 9, 1974.

Rehearing Denied Oct. 10, 1974.

Certiorari Denied June 3, 1975.

Released for Publication by Order of Court of Appeals June 5, 1975.

Ashton & Ashton, Lawton, and Lawrence H. McMillin, Oklahoma City, for appellant.

Lawton Burton and L. Myron Burton, Burton & Burton, Lawton, and Granville Tomerlin and Jack High, Tomerlin & High, Oklahoma City, for appellee.

BACON, Judge.

The record reflects that on Saturday, November 1, 1969, appellant entered appellee's retail store in Lawton, Oklahoma. This was a particularly busy day because it was the first day of the month, a Saturday, utility payments were heavy, and it was also payday at Fort Sill. The traffic in the store was very heavy. Appellant entered the store and stood in line some 20 minutes to pay her utility bills, a collection service apparently provided for appellee's customers' convenience. About 1:30 p.m., appellant was walking through a crowded aisle beside the cafeteria when suddenly she fell. Naturally she was embarrassed; she started to get back up and became aware of something wet and clear on her hands and the back of her slacks. Appellant was removed by ambulance and it is uncontested her injuries have rendered her 'almost totally disabled for life.' After extensive stays in numerous hospitals, appellant filed suit alleging negligence on appellee's part.

The record shows the store was approximately 35,000 square feet and employed 200 persons. The testimony was appellee had five maintenance personnel who cleaned the floor each morning before the store opened at 10 a.m. The maintenance supervisor testified he had five persons working in maintenance. Two were full-time employees and three were college students who worked part-time, one of which was described as 'sorta on the lazy side' and referred to in the record as 'Lazy Eddy.' On several occasions additional maintenance help requested of the management was refused because they 'could not afford it.' The maintenance personnel did the floor work, took care of fixtures, lighting, the parking lot, service station, filters and other odd jobs including occasionally carrying out heavy packages for customers.

The testimony was that the floors were cleaned every morning prior to opening. No routine inspection or procedure was followed, except each employee was to keep a lookout for problems in his department, with the personnel in the cafeteria cleaning the floor in that area. Soft drinks were sold in the cafeteria, and drinks called 'Iceys' were sold in a different area of the store. The testimony also was that there was frequent spillage throughout the store, especially by children with 'Iceys.' The busier the day the more the spillage. Appellant fell in the aisle at a point where there was a gateway going into the cafeteria.

The testimony showed that on this particularly busy Saturday all maintenance personnel left the store at opening time, that is, 10 a.m., except Lazy Eddy who remained to do whatever was required of the maintenance department the rest of the day. Normally when a department employee needed maintenance he would call an operator who would then call maintenance personnel over a loud speaker system in the store. Usually maintenance would arrive at the problem area within five minutes, but on one occasion in the past there was a lapse of some 45 minutes before maintenance arrived.

The store personnel testified they did not see anything on the floor around appellant on which she could have slipped, but stated on cross-examination they did not look under her or feel under her to ascertain the presence of any foreign material.

The floor where appellant fell was highly polished, light in color and had a wavy appearance as though water was on it. There was no evidence what the substance was appellant had slipped on or how long it had been there. Appellant testified it appeared to her to be water.

At the close of appellant's case, appellee's demurrer, like its subsequent motion for directed verdict, was overruled. The jury returned a verdict for appellant for $25,000. The trial court later, however, sustained appellee's motion for judgment notwithstanding the verdict.

In sustaining appellee's motion, the trial court included the following in its findings of fact:

'4. At the conclusion of Plaintiff's evidence, when demurrer to the evidence was under consideration, and in Plaintiff's brief, it was conceaded (sic) that 'the Plaintiff has, admittedly, no direct evidence as to how long the liquid had been on the floor.'

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'6. With the exception of the evidence of Plaintiff as to the nature and extent of her injuries, the bulk of testimony taken at the trial was on the question of maintenance and inspection by the employees of the Defendant, and in this connection there was no direct evidence of a lapse or failure on the part of Defendant or its agents on the date of the accident, from the established routine practiced by the Defendant both before and after the accident.'

Appellant takes the position that under Safeway Stores, Inc. v. Keef, Okl., 416 P.2d 892 (1966), appellant need not have direct evidence of how long the substance had been on the floor to recover in negligence. Appellee, on the other hand, takes the position that to recover in this slip and fall case, appellant's evidence had to show how long the substance had been on the floor, relying principally upon Safeway Stores, Inc. v. Feeback, Okl., 390 P.2d 519 (1964). Also argued extensively by both parties are Fuller v. Rahill, Okl., 496 P.2d 785 (1972); Kassick v. Spicer, Okl., 490 P.2d 251 (1971), and J. C. Penney Co. v. Barrientez, Okl., 411 P.2d 841 (1965). Since these cases contain the applicable principles of law in Oklahoma pertaining to slip and fall cases, we will discuss these five cases and one other, not mentioned by the parties, which is the latest case on the matter in Oklahoma, Williams v. Safeway Stores, Inc., Okl., 515 P.2d 223 (1973).

In Feeback (1964), the first of these six cases, the plaintiff slipped and fell on some carrots lying on the aisle floor of the defendant retail store. The plaintiff prevailed in the trial court but the Oklahoma Supreme Court reversed with directions to grant a new trial. In reversing the court wrote the following syllabus:

'A customer of a retail store injured in a fall caused by slipping on vegetables lying on the store floor may not recover damages from the owner or manager of the store without proof that such vegetables were negligently left there by owner or some employee or had been there for sufficient time after the latter had actual or constructive knowledge thereof to have removed it in the exercise of ordinary care.'

The court found the plaintiff's evidence did not show the defendants had either actual or constructive notice of the condition which caused the plaintiff's fall, nor did the plaintiff offer any evidence as to how the carrots came to be on the floor or how long they had been there.

Next came Barrientez in 1965, where the plaintiff slipped and fell on a round object on a stairway in the defendant retail store. The stairway was covered with other debris such as cigarette butts and papers. The plaintiff prevailed in the trial court and the Oklahoma Supreme Court reversed and remanded the cause for a new trial on unrelated matters. There was no direct evidence as to how the object got on the stairway or how long it had been there.

A significant fact in Barrientez is that the defendant store Did not sell candy or marbles. There was an abundance of testimony that the floor was cleaned daily prior to opening, then usually about three times during the day. The plaintiff fell on the stairway about 7 p.m. and the evidence showed no cleaning was usually done after 5 p.m. unless the janitor was on duty. One of the defendant store's employees testified he ascended the stairway about 10--15 minutes before the plaintiff fell and did not see anything unusual. In the opinion, the court recognized the defendants' contention that there was a 'void' in the plaintiff's evidence. The court cites Feeback and other cases and distinguishes them on the basis that in those cases there Was no evidence from which it could be concluded that the defendants knew or should have known that a dangerous condition existed. The court goes on to say 'if plaintiff's testimony is to be believed . . . it may be inferred that virtually the same littered condition of the involved stairway existed at least 30 minutes before her fall, that existed at the moment of it.' (There was testimony the stairway was littered 30 minutes before the plaintiff's fall.) 'Of course,' continues the court, '. . . the cigarette butts and pieces of paper, the only 'testified-to' (and presumably the only obvious) portions of this debris, or litter, did not cause plaintiff's fall; but the question is: Should the presence of such litter on the stairway have forewarned, or furnished notice, of the existence of a dangerous condition on it, to the Penney Store's employees whose duties included concern with foreign objects and dangerous conditions on the store's floors and/or stairways? Disregarding the evidence as to whether the Penney Company had any of its janitorial crew on duty at the store after 5:00 P.M. on the nights it stayed open until 8:30 P.M., And aside from whether or not one of the issues for the jury was whether failure to do so would constitute a 'careless general practice', which could have rendered it liable for the consequences of the plaintiff's fall (see the discussion in Mahoney v. J. C. Penney Co., 71 N.M. 244, 377 P.2d 663, 671--674) and assuming that it was necessary (in view of the record as a whole) for plaintiff to introduce evidence tending to show constructive notice to defendants of the presence on...