Hale v. Safeway Stores

• Decision Date: 22 November 1954
• Citation: 276 P.2d 118,129 Cal.App.2d 124
• Court: California Court of Appeals Court of Appeals
• Parties: Helen HALE and Chester Hale, Plaintiffs and Appellants, v. SAFEWAY STORES, Inc., a corporation, Defendant and Respondent. Civ. 8446.

Page 118

276 P.2d 118

129 Cal.App.2d 124

Helen HALE and Chester Hale, Plaintiffs and Appellants, v. SAFEWAY STORES, Inc., a corporation, Defendant and Respondent.

Civ. 8446.

District Court of Appeal, Third District, California.

Nov. 22, 1954.

Rehearing Denied Dec. 15, 1954.

Goldstein, Barceloux & Goldstein, Chico, by R. M. Watt, San Francisco, J., Oscar Goldstein, Chico, P. M. Barceloux, San Francisco, and Burton J. Goldstein, Chico, for appellants.

A. B. Ware, of Kutz & Ware, Chico, for respondent.

WARNE, Justice pro tem.

This is an appeal from a judgment of nonsuit. Plaintiffs sued defendant for damages sustained by plaintiff Helen Hale as a result of a fall in defendant's store. The trial was by the court sitting without a jury. At the close of the plaintiffs' case, defendant moved for a nonsuit. The motion was granted and judgment entered accordingly. Plaintiffs appeal.

On September 1, 1951, Mrs. Hale, hereinafter referred to as appellant, went to the Safeway Store in Gridley to do her weekly shopping. It was about 4:30 p. m., and she was accompanied by her ten-year-old boy. The layout of the store was typical of most Safeway Stores; that is, the fruit and vegetable section was at the front and to one side of the store, the cashiers' stands were at the front extending to the other side of the store, the meat department was to the rear of the fruit and vegetable section on the same side of the store, and the rest of the floor was taken up with displays for canned goods and other merchandise; the storeroom for surplus goods, etc., was to the rear of the store. The racks for canned goods and other merchandise were about six feet in height. Appellant walked through the turnstile, and entered the fruit and vegetable section where she made her first selection. She then obtained some meat in the meat department, then, in other sections, some fruit, frozen vegetables, some canned goods and other household items. Appellant went to the cashier's stand and got in line, and while standing there awaiting her turn, noticed that she had forgotten to get some lemons. She left her son in the line at the cashier's stand and went back to the fruit and vegetable section. She obtained lemons, weighed them, and started to return to her place in the cashier's line. After taking only a step or two she slipped on a banana and fell. Her next recollection was of a man offering to help her up, then she became unconscious. Upon regaining consciousness she noticed that she was sitting on the window sill of the store and that the manager was there. While sitting there appellant saw a squashed banana on the floor, a mark on the floor which her shoe had made and banana on her dress, shoe and hose.

Mr. Hensley, referred to as the manager, did not see the accident. He was notified thereof and immediately went to see Mrs. Hale. He also noticed banana on her shoe, the side of her leg, and on her dress. He saw the banana on the floor about 6 or 8 inches from the end of the counter. This was in the same vicinity as the scale plaintiff used in weighing the lemons. He inspected the banana and found that it had some small teeth marks in one end, and that it appeared to have burst open, that is, it had not been peeled. From his last testimony it is argued the banana had been dropped on the floor by a small child who had tried to bite into the fruit without peeling it, and had failed.

For a period of from 15 to 30 minutes before the accident, the manager was in his office in the storeroom, out of view of the customers, doing some clerical work. He testified as follows: 'Aside from the meat department, there were six other employees on duty that afternoon, and they were all working at the cashiers' stands at the time of the accident. Three cashiers' stands were operating at the time, two employees to each stand; one employee was checking the groceries and the other was boxing them up. This was a busy Saturday afternoon, and that was the reason all the employees were working at the checking stand. During the time that appellant was there some 30 other customers were also in the store. He thought that Mr. Brubaker, the employee in charge of the fruit and vegetable section, had been working at the cashier's stand for the same period before the accident, 15 to 30 minutes, that he had been in his office. He did not remember the length of time that elapsed between the last cleaning of the floor in the fruit section and the accident. Appellant testified that she was in the store for a period of 30 to 45 minutes before the accident. She did not know how long the banana was on the floor, nor how it got there. She stated that generally when she shopped Mr. Brubaker was present in the area of the fruit and vegetable section, but on this Saturday she did not see any employee in that area during the entire time she was in the store. She said that while she was standing in line she saw Mr. Brubaker working at the cashier's stand. She did not see any small children in the store during the time that she was shopping. Appellant admitted that she was not watching the fruit and vegetable section during the entire time she was in the store; that she was busy with her shopping and that a child could have been present, but she said she just didn't see any children or employees in that section.

Mr. Brubaker was called as a witness under section 2055 of the Code of Civil Procedure. He testified that he was in charge of the fruit and vegetable section, and that he knew Mrs. Hale as a customer of the store. He stated that he had been helping 'box out' groceries at the cashier's stand on the day of the accident, but his work there was intermittent, and only when his help was needed during the rush period. He then testified that shortly before the accident he left the check stand and swept the floor of the produce department with a broom, and at that time there was no banana on the floor, and that after such sweeping he went into the storeroom to obtain supplies of produce to replenish the stock on the counters. He stated that it was between 5 and 12 minutes from the time he finished sweeping until he came out of the storeroom and saw Mrs. Hale after the accident. Mr. Brubaker had received the same instructions given all regular employees in regard to any substance on the floor, which was that it should be picked up whenever and wherever it was seen. It must be noted that his testimony is inconsistent as to his location at the time of the accident. Prior to stating that he was in the storeroom as shown above, he was asked by plaintiffs' counsel: 'Q. At the time of the accident, you were over at the checking counter, were you not? A. Just temporarily, yes.' This confirms appellant's testimony in regard to Brubaker's location immediately before the accident. There is no direct evidence as to the length of time the banana had been on the floor. The record shows that no inspection of the area had been made for a period of from 12, 15, 30 or more minutes before the accident. There is no evidence of any children in the store.

The sole issue before us on this appeal is whether or not the nonsuit should have been granted on the state of the evidence as above set forth. There is no testimony to the effect that appellant was not injured as a result of her fall.

The law on this subject regarding a business invitee is well established. A review of the law in cases in California in regard to this subject matter is contained in Ahern v. S. H. Kress & Co., 97 Cal.App.2d 691, 693, 218 P.2d 108, 110:

"* * * the owner or occupier of business premises owes to invitees a duty to exercise reasonable care in keeping the premises reasonably safe for such invitees. Tuttle v. Crawford, 8 Cal.2d 126, 63 P.2d 1128; * * *. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier 'must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His...