Hein v. Mills Bldg. Co.
| Decision Date | 07 July 1962 |
| Docket Number | No. 42862,42862 |
| Parties | Lillie HEIN, Appellant, v. MILLS BUILDING COMPANY, a Corporation, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action where plaintiff was accompanying her husband to a doctor's office in the Mills building in Topeka at approximately 8:00 to 8:15 a.m. on May 3, 1958, and it had rained so that in crossing the street and entering defendant's building plaintiff's shoes had become wet, and water had accumulated on the linoleum covered floor in the entranceway to the building causing plaintiff to fall, it is held, plaintiff's evidence failed to establish actionable negligence on the part of the defendant and the trial court properly sustained a demurrer thereto.
William R. Stewart, Topeka, argued the cause, and T. M. Murrell and George A. Scott, Topeka, were with him on the briefs for the appellant.
Charles S. Fisher, Jr., Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, E. Gene McKinney, Frank C. Sabatini, Roscoe E. Long, and William G. Haynes, Topeka, were with him on the briefs for the appellee.
This is an appeal by plaintiff from an order of the trial court sustaining defendant's demurrer to the evidence of plaintiff.
Evidence presented consisted of testimony by plaintiff and her husband. On May 3, 1958, plaintiff accompanied her husband to the Mills building in Topeka, which is a public office building, where he had an appointment with a Doctor Lessenden. They had parked their car on the north side of Ninth street, walked across the street, and entered the building through the north entrance intending to take the elevator to the doctor's office. It had been raining and after plaintiff had passed through the doors and had taken two steps, she fell and was injured. The time was between 8:00 and 8:15 a.m. and the building had been opened to the public at approximately 7:00 a.m. Neither plaintiff nor her husband saw any mats on the floor when they entered the building but when they departed from the building some two hours later, they noticed two mats had been placed thereon. The sidewalks and street were wet and there was water on this linoleum floor inside the doors where plaintiff fell. Plaintiff could not get up but was finally helped up by her husband and other people who were present. Plaintiff testified that a lady from the X-ray room had seen her fall.
Plaintiff and her husband went to Doctor Lessenden's office and the doctor looked at her foot and leg. During the two hours she remained in Doctor Lessenden's office Mr. Stearns N. Belden, the building manager, came in and plaintiff remembered hearing him say he was 'sorry it happened but the pad should have been down.' After having X-rays taken by Doctor Finney, whose office is in the same building, plaintiff and her husband returned home. They saw the mats on the floor when they went back through the lobby on their way home.
Defendant demurred generally to this evidence and in its argument to the trial court in support of the demurrer cited 62 A.L.R.2d 6, et seq., wherein the general rule is stated that the proprietor of a place of business owes to persons present on the premises as invitees the duty of exercising ordinary care to see that the portions of the premises which may be expected to be used by invitees are reasonably safe and that the presence of water on the floor causing a breach of that duty because of the dangerous floor condition must be proved to have actually existed. In addition, the plaintiff must show either that the proprietor had actual notice of the dangerous condition or that the condition existed for such length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it. Liability for floor conditions created by the acts of persons other than employees exists only on proof that the proprietor had actual or constructive notice thereof.
The trial court sustained the demurrer and discharged the jury. In due time judgment was entered for defendant, plaintiff filed her motion for new trial which was overruled, and hence this appeal.
Plaintiff first argues that her evidence is subject to the general rule on testing...
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