Judson v. Camelot Food, Inc.

• Decision Date: 30 June 1988
• Docket Number: No. 18243,18243
• Citation: 104 Nev. 324,756 P.2d 1198
• Parties: Audrey JUDSON, Appellant, v. CAMELOT FOOD, INC., dba Roundtable Pizza; Ed Vargo, individually and doing business as Design Services; Robert Dulik, individually and doing business as Hackmill Products, Respondents.
• Court: Nevada Supreme Court

Page 1198

756 P.2d 1198

104 Nev. 324

Audrey JUDSON, Appellant, v. CAMELOT FOOD, INC., dba Roundtable Pizza; Ed Vargo individually and doing business as Design Services; Robert Dulik, individually and doing business as Hackmill Products, Respondents.

No. 18243.

Supreme Court of Nevada.

June 30, 1988.

Kenneth J. Jordan, Carson City, for appellant.

Beckley, Singleton, DeLanoy, Jemison & List and Stephen Kent, Shamberger, Georgeson, McQuaid, & Thompson, Erickson, Thorpe, Swainston & Cobb, Reno, for respondents.

OPINION

STEFFEN, Justice:

The facts of the instant case are straightforward and undisputed. On the evening of March 16, 1985, appellant Audrey Judson, her husband, and another married couple entered the Roundtable Pizza restaurant in Carson City, Nevada, to have dinner. A few minutes after the four were seated at a table, Mr. Judson arose and suddenly, without warning, the wooden bench upon which Mrs. Judson was seated collapsed and broke into two pieces. It is not known what caused the bench to break, nor is it likely that the cause can ever be determined because a day or two after the accident employees of the restaurant disposed of the bench.

Audrey Judson brought the instant action against Camelot Food, Inc., dba Roundtable Pizza (Roundtable) for injuries she sustained in the accident. The district court granted Roundtable summary judgment, finding that (1) Judson "offered no evidence with respect to any defect in the bench or any evidence that Defendants had notice of any problems or that Defendant's acts were anything other than that of a reasonably prudent person," and (2) Judson failed to present facts sufficient to entitle her to rely upon the doctrine of res ipsa loquitur.

Discussion

On appeal, Audrey argues that the district court erred in granting summary judgment because a genuine issue of fact remains as to whether Roundtable acted reasonably in inspecting its benches for defects. She also claims the district court erred in not allowing her to rely upon the doctrine of res ipsa loquitur.

Summary judgment is appropriate where the pleadings, answers to interrogatories, admissions and affidavits on file, show that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Bird v. Casa Royale West, 97 Nev. 67, 69-70, 624 P.2d 17, 18 (1981). In its order granting summary judgment, the district court noted that Audrey offered no evidence that Roundtable's acts were unreasonable or imprudent; and based upon Roundtable's evidence, the latter's inspection of its benches was reasonable. We note, however, that Roundtable's claim, that its bench inspection was reasonable, was based solely on the deposition of Roundtable's manager, Lisa Mead. In her deposition, Mead testified that she inspected all the benches weekly for signs of damage or deterioration and that she never noted any signs of damage. Audrey claims that even if Mead inspected the wooden benches weekly, a question of fact exists as to whether the inspections were done in a reasonable manner. We agree.

In Twardowski v. Westward Ho Motels, 86 Nev. 784, 476 P.2d 946 (1970), a child was injured on a swimming pool slide when the handrails on the ladder collapsed, causing her to fall onto the cement. In discussing the duty of care of the motel-landowner, we noted:

The motel owed a duty to provide their patrons with a safe slide and to warn their guests of any dangers known to them in using the slide. Their duty went further, however, and included a duty to inspect the slide for latent or concealed dangers, and if a reasonable inspection would have revealed such damages they were chargeable with constructive notice of it. Whether the motel fulfilled these duties were questions of fact to be submitted to the jury.

86 Nev. at 787-88, 476 P.2d at 948 (emphasis added). An analogous case is Pierson v. Seale, 128 So.2d 887 (Fla.App.1961). Pierson brought an action against a restaurant for injuries he received when a booth bench he was sitting on collapsed. As part of his complaint Pierson alleged that the restaurant failed in its duty to properly inspect the bench. The trial court granted summary judgment for the restaurant. In reversing, the appellate court noted:

Appellant contended that the showing as to inspection was insufficient, and that such issue was not resolved. Appellees argued that the deposition of one of the defendants established beyond issue that the duty to inspect was performed ... We hold that those uncontroverted facts are not sufficient, under the circumstances of the injury in this case, to amount to a conclusive discharge as a matter of law of the duty to inspect. There were genuine triable issues as to whether a proper and adequate inspection, if made by defendants, could and should have disclosed the alleged defective condition of the booth bench, and, if so, whether such an inspection was made.

128 So.2d at 888 (emphasis added).

In the instant case, relying exclusively upon the deposition of its manager, Roundtable argues that there is no issue of fact as to whether the manager's inspections were reasonable. We disagree. Whether Roundtable's inspection was reasonable, and should have revealed the defective condition of the bench, are properly questions of fact to be submitted to the jury. These questions are especially triable issues where, as here, the respondent Roundtable disposed of the bench causing the harm and thus made it unavailable for inspection. ¹ Summary judgment, therefore, was improperly granted.

Audrey's second point is that the district court erred in not allowing her to rely upon the doctrine of res ipsa loquitur. We agree and hold that the facts of the instant case present the type of situation to which the doctrine of res ipsa was intended to apply.

In Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985), we held that, "A res ipsa inference of negligence is permitted when one entity is shown to be in exclusive control of the instrumentality causing harm, where the accident is one that does not ordinarily occur in the absence of negligence, and where the defendant is in a better position to explain the cause of the accident." 101 Nev. at 519, 706 P.2d at 1380. In the instant case, the court stated that Audrey failed to make a showing that her injury was caused by some act or omission incident to Roundtable's management and therefore Audrey was precluded from relying upon res ipsa. As authority for this proposition, Roundtable relies upon the court-approved jury instruction in Otis which stated in pertinent part:

It is a rule of law that negligence may be established without proof of specific acts or omissions ... if you find from the evidence the following:

... that the injury was caused by some act or omission incident to defendant's management.

However, in Otis, after enunciating the three elements requisite to a res ipsa inference of negligence, we noted that, "Proof of exclusive control, the first element listed above, substitutes for proof of the specific act constituting the breach when the latter two elements are also satisfied. 101 Nev. at 519, 706 P.2d at 1380 (emphasis added). Consequently, pursuant to the facts of the instant case, Audrey should have been allowed to place the issue of res ipsa before a jury.

First, Roundtable presents no argument that it is not in a better position than Audrey to explain the cause of the accident. It seems self-evident that a restaurant is in a better position than its customers to explain the cause of one of its seats collapsing without warning. As far as selection, maintenance, and inspection of its seats are concerned, the restaurant has exclusive control. Second, seats designed for use by patrons of commercial establishments do not ordinarily collapse without negligence in their construction, maintenance, or use. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507, 509 (1978). ²

Finally, we reject Roundtable's contention that it was not in the "exclusive control" of its benches. A business proprietor retains exclusive control of seating while it is being properly used by patrons. While it has been argued that a restaurant loses "exclusive control" over a seat when it is used by a customer--and one court has so held ( Kilgore v. Shepard Co., 52 R.I. 151, 158 A. 720, 721 (1932))--this argument has been soundly criticized. ³ For example, in Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 247 P.2d 335 (1952), plaintiff brought an action for personal injuries sustained when the stool on which he was sitting in defendant's cocktail lounge collapsed. In holding that plaintiff was entitled to rely upon res ipsa, the Rose court noted:

Defendant and its agents were in exclusive control of the stool up to the time plaintiff sat upon it. It is true that in one sense plaintiff was in control of the stool while he was using it.... Such a view is artificial and ignores the purpose of the requirement that Defendant have exclusive control.... Here it was the condition of the stool, not the use made of it, that was responsible for the fall. Plaintiff had done no more than sit upon it when it gave way, and there is no suggestion that his conduct was improper. So far as construction, inspection, or...