Hetzel v. Jewel Companies

• Decision Date: 28 March 1972
• Docket Number: No. 71-1009.,71-1009.
• Citation: 457 F.2d 527
• Parties: Ruth HETZEL, Plaintiff-Appellant, v. JEWEL COMPANIES, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

457 F.2d 527 (1972)

Ruth HETZEL, Plaintiff-Appellant, v. JEWEL COMPANIES, Inc., Defendant-Appellee.

No. 71-1009.

United States Court of Appeals, Seventh Circuit.

March 28, 1972.

Thomas W. Munger, Lafayette, Ind., for plaintiff-appellant.

Joseph T. Bumbleburg, John K. Mc-Bride, Cable G. Ball, Warren N. Eggleston, Lafayette, Ind., for defendant-appellee; Ball, Eggleston & Bumbleburg, Lafayette, Ind., of counsel.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

SWYGERT, Chief Judge.

This is an appeal from a judgment entered upon a jury verdict in favor of the defendant in a diversity suit for damages for personal injuries allegedly sustained as a result of plaintiff's slipping on an unknown liquid on the floor and falling in one of defendant's supermarkets. The principal issue raised in this appeal is whether the trial judge properly instructed the jury as to the applicable Indiana law.

The facts upon which this action was predicated are as follows. On the afternoon of September 4, 1967, the plaintiff entered a supermarket operated by the defendant in Lafayette, Indiana. She took a grocery cart as she entered and proceeded through the store, placing groceries in the cart as she went. As she pushed the cart along the aisle in front of the self-service meat counter on the way to obtain some hamburger meat, she slipped on something on the floor and fell, her grocery cart falling on top of her. She was helped up by the butcher, who then cleaned up the clear liquid of unknown derivation and content upon which she had slipped. Plaintiff was taken to the hospital by the store manager. She subsequently had surgery on her foot, which she says was injured in the fall, and has suffered pain and limited utility in her foot and ankle which she also attributes to the fall.

Plaintiff contends that the district court erroneously failed to instruct the jury as to her theory of the case and instructed the jury erroneously as to the applicable Indiana law. Plaintiff's theory of the case was that the liquid on the floor in front of the meat counter probably was there as a result of defendant's method of self-service merchandising of meat. She theorized that packages of poultry or other meats might have leaked to create the wet spot or that condensation forming on the refrigerated packages of meat might have spilled onto the floor or that, in any event, there was a regular and recurrent condition at the location where she fell with regard to the accumulation of liquid of a composition unknown to her which condition defendant had not exercised due care to cure, and she contends that the failure to correct this known condition proximately caused her injury.

The district court's instructions, to which timely objection was made, effectively precluded the jury's consideration of the evidence in accordance with the theory espoused by the plaintiff, since those instructions were incompatible with her theory of the case. The pertinent part of the instructions was as follows:

If there is danger attending the invitee\'s use of the premises and such danger arises from conditions not readily apparent to the senses, and if the owner has actual knowledge of such conditions, or if such conditions would have been known to an owner in the exercise of ordinary care under the circumstances, the law then imposes upon the owner the duty to give the invitee reasonable warning of such danger.

* * * * * *

The owner is entitled to assume that the invitee will see and observe that which would be obvious through reasonably expected use of an ordinary person\'s own senses. There is no duty to warn of an obvious danger.

Before you can find for the plaintiff because of a defect or condition, if any, of defendant\'s store, you must be convinced by a preponderance of the evidence that the defendant had actual knowledge of the existence of the defect or condition, or that said defect or condition existed for a long enough time that defendant, in the exercise of reasonable care, should have known of its existence and taken steps to correct the same or warn the plaintiff.

We hold that the trial court's instructions to the jury erroneously stated the applicable Indiana law in two outcome-determinative respects: they precluded a finding that defendant was liable for injuries caused by conditions which, though otherwise negligently existing, were "readily apparent to the senses" of the plaintiff, and they precluded a finding that defendant had constructive notice of the specific condition at issue upon proof that the specific condition was a foreseeable reappearance of a dangerous, recurrent condition of which the defendant had actual notice.

I

Turning first to the impropriety of the instruction regarding obvious dangers, it is clear that the mere visibility of a dangerous condition does not preclude recovery in negligence under the Indiana tort law. As the Indiana Supreme Court clearly stated with regard to the asserted contributory negligence of an invitee who slipped and fell in a puddle of melted snow in a store, "This court is not at liberty to say as a matter of law that the invitee was guilty of contributory negligence after she had passed through the revolving door where there was melted snow and water. Until she had notice to the contrary, she was entitled to assume that the inviter had exercised due care for its customers." Robertson Bros. Dep't Store v. Stanley, 228 Ind. 372, 379-380, 90 N.E.2d 809, 811 (1950) (emphasis added). Indeed, there is no dearth of slip and fall cases in the Indiana law in which recovery was not barred by the fact of the visibility of the injury-causing condition. F. W. Woolworth Co. v. Moore, 221 Ind. 490, 493, 48 N.E.2d 644, 645 (1943); Kroger Co. v. Ward, 267 N.E.2d 189, 190 (Ind. App.1971); Huttinger v. G. C. Murphy Co., 131 Ind.App. 642, 645, 172 N.E.2d 74, 75 (1961); Montgomery Ward & Co. v. Wooley, 121 Ind.App. 60, 64-65, 94 N.E.2d 677, 678-679 (1950).

Kroger Co. v. Ward, supra, the most recent of the slip and fall cases which have found visibility of the defect insufficient to preclude recovery, dealt with an imminently obvious dangerous condition. In that case, the court described the following circumstances which led to the plaintiff's injury:

The weather on the day of the accident was very inclement with snow falling. The parking lot of the shopping center was covered with snow and slush. The plaintiff Bertha Ward entered the Kroger Store in the late afternoon at the only customer entrance through two automatic doors upon which warning signs had been posted by the manager, advising those entering the premises to watch their step. After entering the store a distance of two or three steps the plaintiff fell in a puddle of slushy water, which she saw, that had accumulated on the floor. Kroger Co. v. Ward, 267 N.E.2d at 190.

We fail to see how a dangerous condition of a store could be made materially more obvious. The weather and the condition of the parking lot nearly compelled the expectation of water accumulation near the store entrance. The store had posted warnings at the only entrance available to customers. Moreover, the dangerous water accumulation was not only capable of being seen, but it was actually seen by the plaintiff before her fall. Yet, the Appellate Court of Indiana affirmed a judgment for the plaintiff. Given this state of the Indiana law, it was error for the district court to give an instruction which exempted the defendant from liability for injuries sustained as a result of obvious dangers on the premises.

II

The defendant contended, and the district court agreed, that the liability of the defendant was contingent upon defendant's actual or constructive knowledge of the existence of the specific condition which caused plaintiff's injury and that proof of such knowledge required proof of the following: (1) that defendant's agents placed the liquid on the floor; or (2) that a third party placed the liquid on the floor and defendant's agents knew it was there; or (3) that a third party placed the liquid on the floor and that it had remained there for such a length of time that defendant should have discovered it in the exercise of reasonable care. The court's instructions, which adopted the defendant's theory as to the notice requisite to liability, thus placed upon the plaintiff a heavier burden of proof than is justified by the Indiana law. We believe that proof of constructive notice to a possessor of land of the existence of a dangerous condition is properly accomplished where it is shown that the specific condition at issue, though transitory, is a part of a known and continuing or recurrent condition. In F. W. Woolworth Co. v. Moore, supra, at 496, 48 N.E.2d at 646, the Indiana Supreme Court said:

The proprietor of a store cannot shut his eyes to a dangerous condition of the premises and then escape liability on the ground that he did not know of the danger. As said by this court in Great Atlantic & Pacific Tea Co. v. Custin, 214 Ind. 54, 13 N.E.2d 542, 14 N.E.2d 538 (1938), in speaking of an injury caused by a defective fixture: "The injury was sustained in appellant\'s store where its employee should have notice of existing conditions." This is certainly true of a dangerous condition of the premises which could have been discovered by a reasonable inspection.

By the same token, a storekeeper who knows of the existence of a recurrent condition which poses a potential danger to invitees may not ignore that knowledge and fail reasonably to respond to the foreseeable danger posed by the likelihood of recurrence. In the instant case, the plaintiff slipped and fell on an unknown liquid on the floor of defendant's store immediately in front of the self-service meat counter. The co-manager of defendant's store who was on duty the day of the accident described the weather that day as being clear and warm. He also testified as follows:

Q. Has

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