Jaworski v. Great Scott Supermarkets, Inc.

• Decision Date: 22 December 1978
• Docket Number: Docket No. 58979,No. 5,5
• Citation: 403 Mich. 689,272 N.W.2d 518
• Parties: Anna JAWORSKI, Plaintiff-Appellant, v. GREAT SCOTT SUPERMARKETS, INC., a Michigan Corporation, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 518

272 N.W.2d 518

403 Mich. 689

Anna JAWORSKI, Plaintiff-Appellant, v. GREAT SCOTT SUPERMARKETS, INC., a Michigan Corporation,

Defendant-Appellee.

Docket No. 58979.

Calendar No. 5.

Supreme Court of Michigan.

Argued Dec. 6, 1977.

Decided Dec. 22, 1978.

Lopatin, Miller, Bindes, Freedman & Bluestone by Michael Gagleard, Detroit, for plaintiff-appellant.

Seavitt, Westcott, Miller, Stowe & Magnuson by Thomas D. Beeby, Detroit, for defendant-appellee.

FITZGERALD, Justice.

This action for negligence arose out of a slip-and-fall accident wherein plaintiff Anna Jaworski sustained injuries in one of defendant's stores. Plaintiff appeals from an order of the Court of Appeals affirming a jury verdict of no cause of action. The sole issue on appeal is whether the trial court committed reversible error by instructing the jury on the issue of contributory negligence.

I

On January 3, 1972, plaintiff entered defendant's store at the corner of Conant and Garvin in Detroit to cash her Social Security check and to purchase a few grocery items. Plaintiff lived a block and a half from where defendant's store was located, and she shopped there regularly. After she entered the store, plaintiff placed a few items in her pushcart and proceeded to the dairy counter at the rear of the store to obtain a carton of milk. According to plaintiff's testimony, an employee of the store was then in the process of stocking the counter from a hand truck stacked with several cases of milk. She took two to four steps past this truck, and as she reached for a carton of milk on the counter, she slipped and fell on some cottage cheese on the floor. Plaintiff further testified that her view of the floor was blocked by the hand truck; that she did not see or hear the cottage cheese drop to the floor; and that there were no other customers in the area in which she fell.

However, a different version of events preceding the accident was provided by defendant's witnesses. One of defendant's employees testified that just moments before plaintiff slipped and fell, he saw an unidentified customer, who was a few steps ahead of plaintiff, take a carton of cottage cheese from the counter and accidentally drop it on the floor. According to this version, the employee who witnessed the cheese fall to the floor then shouted "cleanup", but "I didn't even get the words 'cleanup' out of my mouth and this woman slipped and fell. She was on the ground. I mean it happened that fast. Within a couple of seconds after the cottage cheese hit the floor, the other woman (plaintiff) was on the floor". Another employee of defendant's store testified that he was the only person on duty in the dairy department of the store; that he had just returned from lunch minutes before the accident and saw that the floor in front of the dairy counter was clear; and that there was no hand truck in the aisle in front of the dairy counter.

In closing argument, defense counsel argued that defendant did not have sufficient notice of the cottage cheese on the floor to be negligent, but that even if defendant were found negligent, on the basis of Mrs. Jaworski's testimony, plaintiff was contributorily negligent. The trial judge gave an instruction on contributory negligence, and plaintiff's counsel objected on the basis that there had been no evidence offered indicating that plaintiff had in fact been negligent. The jury returned a verdict of no cause of action. The Court of Appeals affirmed on September 8, 1976. 71 Mich.App. 235, 247 N.W.2d 363 (1976). We granted plaintiff's application for leave to appeal on April 29, 1977. 399 Mich. 895 (1977).

II

We are here presented for the first time with the question of contributory negligence of a customer who has sustained injuries in a slip-and-fall accident in a modern supermarket. However, the case law of this state concerning contributory negligence and cases from other jurisdictions similar to the one at bar provide us with guidance.

It is well settled that the question of contributory negligence is generally one of fact rather than law. Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974).

In Bruman v. Yellow Taxicab Co., 220 Mich. 41, 48, 189 N.W. 887, 889 (1922), this Court said:

"Contributory negligence is essentially a question of fact in all cases except where by plaintiff's own testimony or the undisputed facts the case is too plain for reasonable, fair-minded men to draw different conclusions."

The rule is well stated in 57 Am.Jur.2d, Negligence, § 295, p. 692:

"Contributory negligence Depends upon circumstances and is ordinarily a question for the jury to decide under proper instructions. The question of contributory negligence is for the jury when it arises upon a state of facts from which reasonable men might draw different conclusions either as to the facts or as to the conclusions or inferences to be drawn from the facts." (Emphasis added.)

Plaintiff argues that it was reversible error for the trial court to instruct the jury on the issue of contributory negligence because such an instruction was not supported by the evidence.

It is axiomatic that it is error to submit to the jury an instruction on an issue not sustained by the evidence. Susich v. Michigan Consolidated Gas Co., 292 Mich. 612, 291 N.W. 26 (1940). See also Sakorraphos v. Eastman Kodak Stores, Inc., 367 Mich. 96, 116 N.W.2d 227 (1962); Winchester v. Meads, 372 Mich. 593, 127 N.W.2d 337 (1964); GCR 1963, 516.7; and SJI 20.01.

In the instant case, it is undisputed that plaintiff neither saw the cottage cheese on defendant's floor, nor did she hear it fall to the floor. Further, the evidence as to the color of the floor supports the conclusion that the spilled cottage cheese was relatively inconspicuous. ¹ Finally, plaintiff testified that she slipped and fell on the cottage cheese on the floor as she reached for a carton of milk on the dairy counter. Even on the basis of the testimony most favorable to defendant, the fact remains that plaintiff slipped and fell as her attention was naturally directed toward the milk display counter.

Based on the state of facts in the instant case, we do not believe that reasonable minds would differ in concluding that Mrs. Jaworski was not contributorily negligent in failing to use reasonable care for her own safety.

Defendant argues, and the Court of Appeals agreed, that Goodman v. Theatre Parking, Inc., 286 Mich. 80, 281 N.W. 545 (1938), is controlling here. In Goodman, plaintiff, while alighting from his automobile, stepped on a cinder in a parking lot and sprained his ankle. He argued that he could not have been contributorily negligent since his view of the ground was blocked by the car door. Nevertheless, this Court said:

"Ordinary prudence demands that a view be taken of the place where one is about to step. Plaintiff failed to take such a view and, even if defendant was negligent in permitting a cinder to remain upon the lot, plaintiff's contributory negligence bars recovery." 286 Mich. 80, 83, 281 N.W. 545, 546.

We do not believe that the circumstances in Goodman are analogous to those in the case at bar. While ordinary prudence generally requires one to see that which is to be seen, contributory negligence depends upon the circumstances, and the circumstances are substantially different in a parking lot or on a public street than in a modern self-service type store. We cannot accept the notion that a customer in a modern supermarket or department store should be under an obligation to see every defect or danger in his pathway.

"The displays of merchandise in modern stores are so arranged and are intended to catch the customer's attention and divert him from watching the floor. * * * The public does not expect to shop at its own risk and it is unreasonable to expect a person in a retail store to use the same degree of lookout as he would on a public street." Steinhorst v. H. C. Prange Co., 48 Wis.2d 679, 180 N.W.2d 525, 528 (1970).

In Provost v. Great Atlantic & Pacific Tea Co., 154 So.2d 597, 601-602 (La.App., 1963), the Court, in a case similar to the one at bar, said:

"Defendant's store in this case was a 'self-service' type store, in which its merchandise was displayed on counters or on shelves so that customers could inspect the merchandise as they walked in the aisles or passageways of the store. The storekeeper certainly intended that his customers would devote the major part of their attention to the merchandise which was being displayed, rather than to the floor to discover possible obstructions in the aisle, and in our opinion that circumstance must be considered in determining the degree of care which the storekeeper should use in maintaining safe passageways. A patron of a self-service type store, we think, is entitled to rely upon the presumption that the proprietor will see that the passageways provided for his use are reasonably safe, considering the fact that while using these passageways he may be devoting some of his attention toward inspecting the merchandise."

See also Haney v. T G & Y Stores, Inc., 327 So.2d 482 (La.App., 1976); Borsa v. Great Atlantic & Pacific Tea Co., 207 Pa.Super. 63, 215 A.2d 289 (1965); and Krackomberger v. Vornado, Inc., 119 N.J.Super. 380, 291 A.2d 842 (1972).

Accordingly, we find that it was error for the trial court to instruct the jury on the issue of contributory negligence. There was no evidence that under the circumstances plaintiff failed to exercise reasonable care for her own safety.

The decisions of the Court of Appeals and the trial court are reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

Costs to plaintiff.

KAVANAGH, C. J., and RYAN and LEVIN, JJ., concur.

WILLIAMS, Justice.

I would reverse. While plaintiff only objected to the instruction on contributory negligence, that instruction cannot be read in isolation from the instruction on defendant's duty of care....