Heth v. Del Webb's Highway Inn

• Decision Date: 22 June 1967
• Docket Number: No. 8206,8206
• Parties: Rose HETH and William Heth, her husband, Appellants, v. DEL WEBB'S HIGHWAY INN, an Arizona corporation, Losee's Restaurant Equipment and Supply Company, and Arizona corporation, and John Doe Kapp and Jane Doe Kapp, dba Kapp Cabinet Shop, Appellees.
• Court: Arizona Supreme Court

Page 442

429 P.2d 442

102 Ariz. 330

Rose HETH and William Heth, her husband, Appellants, v. DEL WEBB'S HIGHWAY INN, an Arizona corporation, Losee's Restaurant Equipment and Supply Company, and Arizona corporation, and John Doe Kapp and Jane Doe Kapp, dba Kapp Cabinet Shop, Appellees.

No. 8206.

Supreme Court of Arizona, In Division.

June 22, 1967.

Struckmeyer & Whitney, by James A. Struckmeyer, Phoenix, R. Kelly Hocker, Tempe, for appellants.

Moore, Romley, Kaplan & Green, by M. R. Kaplan and Robert H. Green, Phoenix, O'Connor, Anderson, Westover, Killingsworth & Beshears, by Ralph Hunsaker, Gibbons, Kinney & Tipton, by Howard W. Gibbons, Phoenix, for appellees.

McFARLAND, Justice.

This is an action for damages brought by the plaintiff, Rose Heth, for personal injuries received by her when she fell from a stool in a coffee shop operated by the defendant, Del Webb's Highway Inn, an Arizona corporation, hereinafter referred to as Webb. The chair was mounted on a pedestal adjacent to a lunch counter, and was supplied by the defendant, Losee's Restaurant Equipment and Supply Company, an Arizona corporation, hereinafter referred to as Losee. It was installed by the defendant, Kapp Cabinet Shop, hereinafter referred to as Kapp. The complaint alleged that the 'defendants negligently had installed, designed, maintained or otherwise kept under their exclusive or constructive control, a stool at the counter,' which 'broke and/or collapsed' while plaintiff was attempting to sit on it. Plaintiff has appealed from a directed verdict in favor of all three defendants at the close of all the testimony.

It is well settled that upon appeal from a directed verdict, the evidence will be viewed in a light most favorable to the appellant; whatever competent evidence appellants have introduced, including all inferences that can reasonably be drawn therefrom, is assumed to be true; and if the evidence is of such character that reasonable minds may differ on the inferences to be drawn therefrom, the case must be submitted to the jury. Sturm v. Heim, 95 Ariz. 300, 389 P.2d 702.

Following these rules, we can fairly state that the evidence in this case shows the following:

The stool was what is known as a 'captain's chair,' with arms, and swiveling on a pedestal which was bolted to the floor. Losee contracted with Webb to furnish and install about twenty-four stools, but subcontracted with Kapp for their installation. The base of each stool was held to the floor by a single bolt and nut. The bolt was set by drilling a large hole in the cement, inserting the bolt, and pouring around it a hard quick-drying cement called 'Porrock.' If the bolt loosened in the cement, or if the nut loosened on the bolt, the stool would wobble.

The sales engineer for Losee testified that in any new installation some of the stools almost always get loose for various reasons, and that, therefore, at the time of the installation, he warned Webb to 'keep an eye on the stools' and to keep Losee informed. Prior to the accident several such calls were received from Webb and were referred to Kapp who went out and tightened the stools. After the accident he went to Webb's with Kapp, examined the stool in question, and found that it was loose and had about one-half inch of vertical play in the base, and two to three inches of horizontal play in the seat itself.

The superintendent of installation for Kapp testified that he made two service calls prior to the accident, to repair loose stools at the same counter as the stool from which plaintiff fell. After the accident he examined the stool in question, and found that it was loose and that he bolt holding it to the floor was loose in the cement.

A Kapp partner testified that he went to the scene of the accident after it happened; that he then found that the base was loose; that prior to the accident Webb was informed that there were some lose stools; that in any new installation, some stools usually loosened up.

Plaintiff testified that the stool felt wobbly when she sat on it, and that when she tried to slide back in the seat, it 'broke off.' Whether it actually broke off, or merely tipped, is the subject of conflicting testimony. Plaintiff fell sideways against the wall, but did not fall to the floor. The headwaitress remarked to plaintiff that they had had trouble with that stool before, and the manager stated that they had had a man out to fix it the day before.

A former waitress who was working at Webb's at the time of the accident testified that there was on stool that was usually empty; that people would come and say: 'You don't want me to sit on that thing and break my neck'; that several of the stools were wobbly after installation; that after the accident, the floor where the base had been was cracked and was 'a mess.'

The allegation of negligent design has not been proved. There is no evidence whatever that the design was not proper, nor is there any evidence that any of the three defendants had anything to do with the design.

There is no evidence of negligent installation. The only thing approaching such evidence, is the proof that the stool's base had four holes but was attached by only one bolt. No evidence was introduced to indicate that one bolt was insufficient, or that the lack of the other three bolts contributed to the stool's looseness. One witness stated that to drill four holes in such small area of the floor might have weakened the cement and might have made a less sturdy installation. To have permitted the jury to find negligence in the installation, would be to permit it to indulge in speculation unsupported by any reliable evidence.

On the question of negligent maintenance, a jury case clearly has been made against Webb. However, the appellees, Kapp and Losee had nothing to do with the maintenance of the stools at Webb's. Webb alone was responsible for their maintenance and had exclusive possession of the stools.

Although a property owner or occupant is not an insurer of the safety of his invitees (Daugherty v. Montgomery Ward, 102 Ariz. 267, 428 P.2d 419, decided May 25, 1967) he owes a duty to such invitees to have his premises in a reasonably safe condition and to give warning of latent or concealed perils (Ibid). A greater duty rests upon one engaged in selling merchandise, to discover whether a dangerous condition exists on the premises, then devolves upon his invitee who has a right to assume that the premises are reasonably safe for his use. Glowacki v. A. J. Bayless, Markets, 76 Ariz. 295, 263 P.2d 799.

Curiously enough, these principals have been applied to a state of facts almost identical with those of the instant case, and the result achieved corresponds with our views in the matter. In addition, the case to which we refer, has already been cited with approval by us. That case is Denison v. Wiese, 251 Iowa 770, 102 N.W.2d 671. The facts are so close to the instant case that we will...