Howard v. Food Fair Stores, New Castle, Inc.

• Decision Date: 02 June 1964
• Citation: 57 Del. 471,201 A.2d 638,7 Storey 471
• Parties: , 57 Del. 471 Anne G. E. HOWARD and Harry S. Howard, Plaintiffs Below, Appellants, v. FOOD FAIR STORES, NEW CASTLE INC., a Delaware corporation, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 638

201 A.2d 638

7 Storey 471, 57 Del. 471

Anne G. E. HOWARD and Harry S. Howard, Plaintiffs Below, Appellants, v. FOOD FAIR STORES, NEW CASTLE INC., a Delaware corporation Defendant Below, Appellee.

Supreme Court of Delaware.

June 2, 1964.

Appeal from the Superior Court in and for New Castle County.

Daniel L. Herrmann and Samuel R. Russell, of Herrmann, Bayard, Brill & Russell, Wilmington, for appellants.

Harold Leshem and Harvey Bernard Rubenstein of Leshem & Rubenstein, Wilmington, for appellee.

TERRY, C. J., and WOLCOTT and CAREY, JJ., sitting.

WOLCOTT, Justice.

This is an appeal from a summary judgment entered on motion of the defendant. The plaintiffs, husband and wife, appeal.

The action is one for personal injuries resulting from a fall by Mrs. Howard, the plaintiff-wife, in the defendant's store. We state the facts as they appear from the depositions on which the motion for summary judgment was based.

On Monday, July 30, 1962, at approximately 12 noon, Mrs. Howard entered the defendant's store located in the Continental Shopping Center in Wilmington Manor. She entered the store and walked toward the rear down the right-hand aisle for the purpose of purchasing some cheese, the counter for which is located in the rear.

As she walked down this aisle her attention was called to the displays of produce on the shelves lining the aisle. She looked ahead of her along the aisle sufficiently only to notice that the aisle was apparently clear. As she neared the rear of the store both feet flew out from under her and she fell heavily, breaking her hip.

At the time no one was around, neither customers nor employees of the defendant. She called for help but remained seated in great pain on the floor for approximately 10 or 15 minutes before anyone came to her assistance.

During the time she was seated on the floor with one leg stretched out in front of her and the other leg tucked under her, she looked around and noticed that she was sitting in the middle of what appeared to be grease marks. These marks were black, one inch wide, parallel with each other and covered an area of approximately two feet by five feet. They appeared to Mrs. Howard as having been caused by the wheels of carts. In addition, as she was sitting on the floor she noticed that her dress became wet, apparently from water on the floor on which she was sitting.

One of the ambulance attendants who finally came to transport Mrs. Howard to the hospital testified that when he helped lift her to the stretcher he noticed black marks on the floor in the area where Mrs. Howard was sitting. On the day following Mrs. Howard's fall one of her then attorneys visited the defendant's store and observed that there were still black marks on the floor in the area which had apparently been made by carts used by defendant since the distance between the parallel marks was roughly equivalent to the distance between the wheels of a cart. In his opinion, further, the marks caused the floor to be slick and slippery.

The deposition of an employee of the defendant was taken whose duty it was to clean the floor of the store. It appears that generally he reports for work every morning except Sundays at 8 a. m. and leaves around 12 or 12:30 p. m. On the day in question he had already left the store before Mrs. Howard arrived and subsequently fell.

From his testimoney it appears that on a Monday the store floor is particularly dirty by reason of the traffic from the previous Saturday and that, ordinarily, it takes him about the whole morning to complete his cleaning duties.

He testified that on the day in question he performed his usual duties of sweeping and mopping the floor and had completed his work about 9:30 a. m. Thereafter, in the course of his duties he had occasion to walk back and forth through the store and to keep the aisles free and the floor clean. He testified specifically that in the course of his duties on this particular morning he had occasion to pass the spot where Mrs. Howard fell about 15 or 20 minutes prior to her fall and found that the floor was clean and there was 'nothing laying around there.'

On this showing the trial court entered summary judgment for the defendant on the authority of Wilson v. Derrickson, Del., 175 A.2d 400. In this appeal plaintiffs argue that the entry of summary judgment for the defendant was improper because there is in existence a genuine issue of material fact as to the negligence of the defendant.

A defendant, particularly in a negligence action, moving for summary judgment in its favor must bear the burden as the moving party of producing evidence of necessary certitude demonstrating that there is no genuine issue of fact relating to the question of negligence and that the proven facts preclude the conclusion of negligence on its part. Such a moving defendant has the burden of negating the plaintiff's claim and only when that burden has been discharged does the burden shift to the plaintiff to come forward with further evidence to demonstrate that there is a genuine issue of material fact upon the question of negligence. Ebersole v. Lowengrub, Del., 180 A.2d 467.

In the final analysis the question before us is whether or not on this record there is an issue to be determined by the jury as to the question of the defendant's negligence. If, under the circumstances shown, such an issue exists, then summary judgment can be entered for neither side.

The defendant as a storekeeper owes a duty to the public to see that those portions of its premises ordinarily used by its customers are kept in a reasonably safe condition for their use. In the performance of this duty a storekeeper is charged with responsibility for injuries which are caused only by defects or conditions of which the storekeeper had actual notice or which could have been discovered by such reasonable inspection as other reasonably prudent storekeepers would regard as necessary. Robelen Piano Co. v. Di Fonzo, 3 Storey 346, 169 A.2d 240, and Wilson v. Derrickson, supra.

In an action for personal injuries resulting from a storekeeper's breach of that duty, the plaintiff must show that there was a condition in the defendant's store of a dangerous or defective nature; that that condition caused the injuries complained of, and that the condition or defect causing the injury was placed there by the defendant or its employees, or was permitted to remain after notice of its existence had come or should have come to the attention of the defendant, or its employees. Conversely, to support a motion for summary judgment the defendant must offer proof negating that showing.

We think this defendant has failed to negate the plaintiff's claim of injury by this record for it...