Keene v. Arlan's Dept. Store of Baltimore, Inc.

• Decision Date: 11 March 1977
• Docket Number: No. 547,547
• Citation: 370 A.2d 124,35 Md.App. 250
• Parties: Dorothy K. KEENE et vir v. ARLAN'S DEPARTMENT STORE OF BALTIMORE, INC.
• Court: Court of Special Appeals of Maryland

Page 250

35 Md.App. 250

370 A.2d 124

Dorothy K. KEENE et vir v. ARLAN'S DEPARTMENT STORE OF BALTIMORE, INC.

No. 547.

Court of Special Appeals of Maryland.

March 11, 1977.

John J. Hirsch, Baltimore, with whom was Henry J. Frankel, Baltimore, on the brief, for appellants.

Herbert Burgunder, Jr., Baltimore, with whom was Emanuel H. Horn, Baltimore, on the brief, for appellee.

Argued before LOWE, MELVIN and LISS, JJ.

LISS, Judge.

'Plus change, plus la me me chose' ¹-the more things change, the more they remain the same. We observe again here the proof of that aphorism in one of the latest of the many classic department store 'fall down' cases which have found their way into the courts.

Dorothy Keene and her husband, Leonard, appellants, urge that Judge J. Harold Grady, sitting in the Superior Court of Baltimore City, erred when at the conclusion of the appellants' case-in-chief he granted a motion for a directed verdict in favor of the appellee, Arlan's Department Store of Baltimore, Inc. We agree with appellants and shall reverse.

As adduced from the testimony offered at the trial, on July 17, 1971, the Keenes entered the department store owned and operated by the appellee in Baltimore City, selected for purchase a Coleman stove, and Leonard Keene got into the second checkout line while Mrs. Keene continued to browse around the store. Some fifteen minutes later, during which time her husband had been moving forward in the check-out line, Mrs. Keene decided to join him and started to walk in his direction. Suddenly, her feet slipped out from under her and she 'was sitting on (her) bottom on the floor.' She testified that an unidentified man in the first check-out line attempted to help her up and when she had almost gotten to her feet she slipped again, falling in such a way as to be facing the front of the store (as well as the cashier in the first line); that as she was regaining her feet for the second time she heard the cashier in the first check-out line blurt out, 'I told them if this wasn't cleaned up, someone's going to fall.' Over objection and in response to the question, 'Did you see her say that?', Mrs. Keene answered, 'Yes, I did.' When asked to describe 'the method in which (the cashier) said it,' she answered, 'Her nature was-seemed to be irritated, like she was upset. . . . a loud tone of voice, loud, irritated tone, excited.' Mrs. Keene said that her shoes and clothes were covered with a 'clear, sleek solution,' which she had neither smelled nor seen on the floor before falling.

Mr. Keene corroborated his wife's description of the events including the statement allegedly made by the cashier. He testified that he wiped a very slippery, slimy substance from his wife's shoes; that it was also on his wife's clothing and stockings; that he noticed a puddle on the floor where she had fallen and that there were slip marks on the floor in the puddle. A display of boxes containing a product known as Lemon-Up Shampoo was in the area adjoining the alleged puddle. There was no direct evidence establishing with certainty that the foreign material on the floor was shampoo; nor was there any evidence as to how the substance got on the floor or how long it had been there. Mr. Keene testified that during the fifteen minutes he was standing in the check-out line he had continuously observed the cashier in the first line and that during that entire time she spoke to no one other than those customers going through her checkout line.

There was testimony concerning the injuries and damages sustained by appellants, but that testimony-not being an issue in the controversy now before us-need not be recited. At the conclusion of the appellants' case, the appellee moved for a directed verdict on five alternative grounds:

1) That there was no evidence offered in the case legally sufficient to entitle the plaintiffs to recover against the defendants;

2) That there was no evidence of primary negligence on the part of the defendant;

3) That the proximate cause of the accident was the negligence of the plaintiff, Mrs. Keene;

4) That Mrs. Keene was guilty of contributory negligence as a matter of law; and

5) That there was no evidence that the defendant had sufficient notice of the alleged condition of the floor in sufficient time to have corrected it.

Judge Grady in an oral opinion granted the motion on the ground that the evidence was too vague and non-specific to show actual notice on the part of any employee and that the jury would be required to speculate as to the negligence of the defendant if it should find a verdict against it. The jury was discharged, and a judgment in favor of the appellee was entered. It is from that judgment that this appeal was filed-on the ground that there was in fact sufficient evidence for the jury to determine the question of primary negligence on the part of the appellee.

The Court of Appeals of Maryland in Baulsir v. Sugar, 266 Md. 390, 394-95, 293 A.2d 253, 255 (1972), has stated the sufficiency of evidence standards which warrant the granting or denial of a directed verdict:

'We have held that in reviewing the action of the trial court in granting a directed verdict for a defendant at the conclusion of a plaintiff's case, we will, in testing the sufficiency of the evidence, resolve all evidentiary conflicts in favor of the plaintiff and assume the truth of all of the evidence and inferences that may naturally and legitimately be deduced therefrom in favor of the plaintiff's right to recover. Durante v. Braun, 263 Md. 685, 689, 284 A.2d 241 (1971); Home Insurance Company v. Metropolitan Fuels Company, 252 Md. 407, 411, 250 A.2d 535 (1969). We have also said that a plaintiff has not met his burden of proof if he presents merely a scintilla of evidence where the jury must resort to surmise and conjecture to declare his right to recover. Plitt v. Greenberg, 242 Md. 359, 367, 219 A.2d 237 (1966); Fowler v. Smith, 240 Md. 240, 246, 213 A.2d 549 (1965). A hypothesis resting on surmise and conjecture is not enough to warrant a submission of the case to the jury. Dorsey v. General Elevator Co., 241 Md. 99, 105, 215 A.2d 757 (1966); Moulden v. Greenbelt Consumer Services, Inc., 239 Md. 229, 232, 210 A.2d 724 (1965).'

On the other hand, that same Court said in Mass Transit Administration v. Miller, 271 Md. 256, 315 A.2d 772 (1974):

"Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury'; that the rule requires submission of the case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury; . . ..'

Curley v. General Valet Service, 270 Md. 248, 311 A.2d 231 (1973); Fowler v. Smith, supra.

Our task, then, is to determine whether appellants' case amounts to a mere hypothesis resting on surmise and conjecture or a skeleton fleshed out with sufficient-albeit meager-evidence requiring the issue to be submitted to the jury.

There is no dispute as to the basic legal principles governing this type of case: A customer of a department store is classified at law as an invitee. Dickey v. Hochschild Kohn & Co., 157 Md. 448, 146 A. 282 (1929); Link v. Hutzler Bros., 25 Md.App., 586, 335 A.2d 192 (1975), cert. denied, 275 Md. 750 (1975). The duty owed by a proprietor to his customer was clearly stated by Judge Barnes speaking for the Court of Appeals in Honolulu Ltd. v. Cain, 244 Md. 590, 595, 224 A.2d 433, 435 (1966):

'The duty of an occupant of land toward his business 'invitee' rested, in its inception, upon an implied representation of safety, 'a holding out of the premises as suitable for the purpose for which the visitor came . . .', Prosser, Business Visitors and Invitees, Selected Topics of the Law of Torts 243, 261 (1953). The word 'invitee' itself, conveys the idea that the place is held out to the visitor as prepared for his reception. The occupant does not, of course, become an insurer of the safety of those who accept his invitation. But when the public is led to believe that premises have been offered for its entry, the law is clear that the occupant assumes a duty of reasonable care to see that the place is safe for the purpose. The duty extends to those who are injured when they enter in response to the invitation.'

Chief Judge Gilbert of this Court, in Link v. Hutzler Bros., supra, noted that our Court of Appeals has cited with approval the view of the Restatement (Second) of Torts § 343, which states that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on his property if he:

'(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.'

Accord, Mondawmin Corporation v. Kres, 258 Md. 307, 266 A.2d 8 (1970); Honolulu Ltd. v. Cain, supra; Evans v. Hot Shoppes, Inc., 223 Md. 235, 164 A.2d 273 (1960); Glaze v Benson, 205 Md. 26, 106 A.2d 124 (1954); Yaniger v. Calbert Building & Con. Co., 183 Md. 285, 37 A.2d 263 (1944).

There is a distinction to be made between those cases which occur as a result of some overt action by the owner or his employees (waxing or oiling of floors) and those which for convenience have been designated as foreign object, notice type of cases. In the first type, notice is usually not an issue since the owner or his employees are alleged to have created the dangerous condition. In the case before us, which is an example of the second type, appellants offered no affirmative evidence to indicate that the owner of the premises or its employees created the dangerous condition complained of. The...