Kassick v. Spicer

• Decision Date: 26 October 1971
• Docket Number: No. 42987,42987
• Citation: 490 P.2d 251
• Parties: Alfred KASSICK and Safeway Stores, Inc., Plaintiffs in Error, v. I. M. SPICER, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 251

490 P.2d 251

Alfred KASSICK and Safeway Stores, Inc., Plaintiffs in Error, v. I. M. SPICER, Defendant in Error.

No. 42987.

Supreme Court of Oklahoma.

Oct. 26, 1971.

Thomas R. Brett, Hudson, Wheaton & Brett, Tulsa, for plaintiffs in error.

J. R. Hall, Jr., Miami, Jack Gordon, Claremore, for defendants in error.

IRWIN, Justice:

The Court of Appeals, Division No. 2, affirmed the judgment of the trial court. On Certiorari, the judgment of the trial court is reversed.

Mr. Spicer, plaintiff, while a customer in defendant Safeway's store, stepped on a grape, slipped and fell, and sustained personal injuries. He commenced this action to recover damages against Safeway and its store manager, Mr. Kassick.

The jury returned a verdict for plaintiff and judgment was rendered accordingly. Defendants appeal.

Defendants contend plaintiff did not prove any actionable negligence and the trial court erred in overruling their demurrers to the evidence and motion for a directed verdict.

Plaintiff contends that 'the only question for the court's determination in this case is whether a person may recover money damages from the owner and manager of a grocery store for personal injuries resulting from a fall caused by his slipping on a grape lying on the floor for a sufficient length of time that defendants through the exercise of vigilance and ordinary prudence, would have known or should have known that same would cause injury to invitees traversing the floor in the course of shopping'.

The record discloses that plaintiff slipped and fell, approximately four or five feet in front (west) of checkout stand No. 1 in Safeway's store. Defendant Kassick was called as a witness by plaintiff. According to his testimony, the entrance to the store is on the north; the store has six checkout stands which are located south of the entrance, extending in a north-south direction; checkout stand No. 1 is on the north and the cashier's booth is between checkout stand four and five; and approximately ten to twelve feet west of the checkout stands are several food laden gondolas, which extend north and south, and the aisle in which plaintiff fell was between the gondolas and the checkout stands.

Kassick testified that he was in the cashier's booth when he saw plaintiff enter the store at approximately 4:15 P.M.; the next time he saw him 'he was picking himself up from the fall'; that he swept the floor in the check stand area at about 2:00 P.M.; at approximately 3:45 P.M., he 'dressed up' the candy table, which extended east and west about fifteen feet northwest of checkout stand No. 1; that he went down the aisle where plaintiff fell after he left the candy table (about thirty minutes before plaintiff fell) and did not observe anything on the floor. On cross examination he testified that the area was clean and free of foreign matter at that time.

Kassick further testified that he was aware of the problem resulting from things falling on the floor; the employees are directed to keep a constant lookout for foreign objects on the floor and to pick them up immediately; the store did not have a policy with respect to how often the store is swept but 'we usually do it when its needed, and there is a lot of times that it is done when it isn't needed; we just sweep the store'; and that the checkout stands is the place that most people travel, the traffic is heavier there because everybody has to go out that area, that it is kept clean at all times by the checkers and they always sweep that area every opportunity they have.

Plaintiff testified that after he entered the store he started down the aisle and his feet flew out from under him and he fell; that he was 'kind of embarrassed' and got up as quickly as he could; that he noticed dirt on his hands when he brushed them off; that he saw a big spot on the floor, 'like some green grapes'; that he went to the cashier's stand and Mr. Kassick asked him what he fell on 'and I told him, and so he hollered at this boy, I didn't know the boy, to go up there and see what it was I fell on and he said, was it grapes, and the boy said, yes sir, and he said well, clean it up before anybody else falls'; and that he made his purchase and left the store.

The record clearly establishes that plaintiff slipped and fell on the grape while he was a customer of Safeway's store. However, there is absolutely no evidence tending to establish how long the grape had been on the floor at the time plaintiff slipped on it and fell.

In Safeway Stores, Inc. v. Feeback, Okl., 390 P.2d 519 (1964), we held that a customer of a retail store injured in a fall caused by slipping on vegetables lying on the floor may not recover damages from the owner without proof that such vegetables were negligently left there by the owner or his employee or had been there for a sufficient time after the owner or his employee had actual or constructive knowledge thereof to have removed it in the exercise of ordinary care.

In Safeway Stores, Inc. v. Criner, Okl., 380 P.2d 712 (1963), the plaintiff customer slipped and fell on a wet or damp floor in defendant's store. It had been raining and the wetness or dampness had been created by ...