Gutierrez v. Albertsons, Inc.

• Decision Date: 21 November 1991
• Docket Number: No. 10954,10954
• Citation: 113 N.M. 256,824 P.2d 1058,1991 NMCA 135
• Parties: Maria Rita GUTIERREZ, Plaintiff-Appellee, v. ALBERTSONS, INC., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1058

824 P.2d 1058

113 N.M. 256

Maria Rita GUTIERREZ, Plaintiff-Appellee, v. ALBERTSONS, INC., Defendant-Appellant.

No. 10954.

Court of Appeals of New Mexico.

Nov. 21, 1991.

Certiorari Denied Jan. 7, 1992.

[113 NM 257] David Greer, Albuquerque, for plaintiff-appellee.

Matthew P. Holt, Sager, Curran, Sturges & Tepper, P.C., Las Cruces, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant Albertsons, Inc. appeals the judgment on a verdict in favor of plaintiff Maria Rita Gutierrez (Gutierrez) in this slip-and-fall action. Albertsons makes the following arguments on appeal: (1) there was insufficient evidence to support the jury's finding that Albertsons was negligent; (2) admission of Gutierrez' testimony about the absence of maternity care insurance coverage for her was reversible error; and (3) Gutierrez' failure to sue Albertsons' allegedly negligent employee barred her claims against it as a matter of law. We affirm.

FACTS.

On May 25, 1984, Gutierrez, who was five and a half months pregnant, was shopping in aisle four of Albertsons, moving toward the front of the store. While reaching for an item on a shelf, she slipped and fell, landing on her back. She did not remember anything after she reached for the item until she was on the floor. She did not know what caused her to fall.

A nurse who was in the same aisle, also moving toward the front of the store and ahead of Gutierrez, heard her hit the floor. She turned around and saw Gutierrez on her back. She saw a puddle of clear liquid approximately six inches wide by two and a half to three feet long next to Gutierrez. Gutierrez was near the center of the aisle and the puddle was closer to the side. The nurse saw no streaks or footprints in the water.

Mr. Moulton, the assistant store manager, was the second person to arrive on the scene. He saw the water, which he described as one or two puddles, each about six inches in diameter and adjacent to where Gutierrez was lying. He was asked about the source of the liquid and said he did not know where it came from. He checked a lobster tank that was six to eight feet away at the end of aisle four, but he found no trail of water between the tank and the puddle and no leak in the tank. When asked during direct examination about the "appearance of the puddle at the time of the accident[,]" he said "I don't remember seeing foot marks. I remember a couple cart tracks." Subsequently, on redirect, he described what he saw as "some wheel marks."

Mr. Kell, the store manager, described the liquid as less than four ounces, covering an area of one foot by three feet. He said that it was in several spots, rather than one solid body. He tasted the liquid to see if it contained salt, which was added to the water in the lobster tank. He determined that it was water without salt. He also checked the tank for leaks and found none, and was unable to determine the source of the water. He took a sample of the liquid.

Mr. Lujan, a courtesy clerk, testified on direct examination that when Gutierrez fell, he was summoned over the intercom and that, when summoned, he was getting a spot or wet mop. He also said that he saw Gutierrez on the floor. When asked during direct examination to describe the water, he said that it was "streaked," and he said "carts had already went over it and everything." On cross-examination he testified that the streaks he saw were there after Gutierrez had been carried out of the store.

Both the nurse and Gutierrez testified that while Gutierrez was lying where she fell, waiting for an ambulance to arrive, someone with a mop and bucket began mopping up the water that was next to her. She testified that she overheard someone say: " 'Look at all that water.' " Moulton identified himself, Kell, and Lujan as the store personnel in the aisle after the fall and said that he believed he told Lujan to bring a mop. Gutierrez said that she was asked to move so that he could mop around her.

Moulton and Kell testified about the store's policy regarding inspections and cleaning. They said the store was cleaned every night by a professional janitorial service and ordinarily, but not always, swept again the following morning. When a new shift of clerks arrived at 4:00 each afternoon, one of their first tasks was to sweep the store before the rush at shortly after 5:00. Also, each store employee was instructed to inspect the floor for possible debris or foreign substances whenever walking through the store for any reason.

Lujan testified at trial on direct examination that he swept the entire floor before the accident and that he swept the aisle in question ten to fifteen minutes before the accident. He said there was no liquid on the floor at that time. Kell testified that he saw Lujan begin to sweep the floor of the store and saw him finish it before the fall. He did not see him sweep aisle four. Moulton said that he saw Lujan sweeping part of the aisle, although he did not determine if it was the part where Gutierrez fell.

When pressed on direct examination, Lujan testified that he was "not sure" if he swept aisle four, but had he started sweeping at the last aisle, he would have continued through aisle four. During cross-examination, Albertsons arranged for an audiotape to be played; the tape had been used to record a telephone interview between Lujan and a representative from Albertsons' home office risk management division. The conversation occurred approximately two months after the accident. During that conversation, an exchange occurred in which Lujan may have misunderstood what he was being asked. Nevertheless, Lujan's initial responses indicated that he had swept only aisle four; after being asked if there was something on aisle four that required clean-up, he then modified his testimony and said he had swept all aisles.

On the same tape, Lujan indicated that he was in the back at the time of the accident getting a mop because the floors were "a little bit dirty." At trial, on direct examination, he testified he was getting a mop "to clean up produce, because produce gets--the floor gets real dirty, real black." When pressed, however, he testified that he didn't remember why he was getting the mop.

Albertsons moved for a directed verdict at the close of the evidence presented on behalf of Gutierrez. The record on appeal includes a partial transcript; that transcript contains the testimony offered on behalf of Gutierrez, as well as the record made in connection with the motion for directed verdict at the close of Gutierrez' case. The record does not indicate whether Albertsons presented any evidence.

After the jury returned its verdict, Albertsons moved for judgment, notwithstanding the verdict. The motion was denied.

I. SUFFICIENCY OF THE EVIDENCE.

The parties seem to agree that the controlling law on the matter of Albertsons' negligence stems from De Baca v. Kahn, 49 N.M. 225, 161 P.2d 630 (1945). The supreme court held in that case that a slip-and-fall plaintiff must prove not only that there was a dangerous condition in a defendant's premises, but also that the defendant knew or had reason to know of the condition. Id.; see also Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712 (1958); O'Neil v. Furr's, Inc., 82 N.M. 793, 487 P.2d 495 (Ct.App.1971).

In O'Neil, this court articulated the duty owed by a store owner to a business invitee who is injured from a slip-and-fall action on the store owner's premises. The court stated:

In order to find one negligent towards his business invitees it is necessary that the evidence or reasonable inferences therefrom establish a dangerous condition which either is known or should have been known to the proprietor; that the dangerous condition is such that the owner realizes that his invitees would not discover the danger for themselves; and with such knowledge the proprietor fails to exercise reasonable care to protect his invitees.

Id., 82 N.M. at 795, 487 P.2d at 497. See generally Sonja A. Soehnel, Annotation, Liability of Operator of Grocery Store to Invitee Slipping on Spilled Liquid or Semiliquid Substance, 24 A.L.R.4th 696 (1983). Compare SCRA 1986, 13-1318 (Repl.1991) (adopted January 1, 1987, setting forth proprietor's duty in slip-and-fall case where dangerous condition exists from factors not created by proprietor).

The parties also seem to agree that even if the jury was entitled to reject the evidence of due care in this case, Gutierrez still had to come forward with some positive evidence of negligence. Negligence may not be presumed from the fact that an injury occurred. See generally Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 592, 458 P.2d 843, 844 (Ct.App.1969).

As we understand Gutierrez' theory at trial, she asked the jury to find in effect either that (1) the water had been present on aisle four, Lujan had seen it, but he had failed to mark its presence; or (2) the water had been present on aisle four and Lujan had missed it.¹ Albertsons contends that the evidence was insufficient to support either theory because the evidence shows that Lujan swept the floor shortly before the accident and the water was not then present. Alternatively, Albertsons contends that, even if the jury was entitled to disregard Lujan's testimony, then there was no evidence other than the fact of an accident resulting in an injury, and such evidence is not sufficient to support a finding of negligence. We first discuss the sufficiency of the record on appeal to support a conclusion that the appellate claim was preserved.

A. Preservation.

The docketing statement indicates that Albertsons preserved its right to question the legal sufficiency of the evidence by filing "motions" for directed verdict. Gutierrez did not challenge that assertion while this case was assigned to the summary calendar, and we accept it as true. See State v. Sisneros, 98 N.M. 201, 647 P.2d 403 (1982).

Ordinarily, appellant has the burden of producing...