Klaesener v. Schnucks Markets, Inc.

• Decision Date: 16 July 1973
• Docket Number: No. 2,No. 55734,55734,2
• Citation: Klaesener v. Schnucks Markets, Inc., 498 S.W.2d 555 (Mo. 1973)
• Parties: Marion KLAESENER and Bernard Klaesener, her husband, Appellants, v. SCHNUCKS MARKETS, INC., Respondent
• Court: Missouri Supreme Court

Page 555

498 S.W.2d 555

Marion KLAESENER and Bernard Klaesener, her husband, Appellants, v. SCHNUCKS MARKETS, INC., Respondent.

No. 55734.

Supreme Court of Missouri, Division No. 2.

July 16, 1973.

Mogab, Hughes & Green, Richard L. Hughes, St. Louis, for plaintiffs-appellants.

Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent.

HOUSER, Commissioner.

Action by Marion Klaesener (hereinafter 'plaintiff') for personal injuries and by her husband Bernard for loss of services and expenses incurred as a result of a fall sustained by Mrs. Klaesener when she entered Schnucks Market in Ferguson as a customer. The trial jury returned a verdict for defendant and plaintiffs appealed (prior to January 1, 1972). We have jurisdiction because the amount in controversy exceeds $30,000.

Plaintiff fell on January 18, 1968 on a busy Saturday afternoon about 2 p.m. It had been snowing for hours. All around the entry way it was wet, sloppy and slushy, with black slush and black water spread out on the floor 'like the water that comes off when you stomp your feet and knock the snow off.' Plaintiff had entered the store through a pneumatic door which opened automatically when she stepped upon a rubber treatle outside the door and closed when she stepped on a rubber treadle inside the door. She claimed that there were two rugs lying on the terrazzo floor just beyond the inside rubber treadle. Two store employees could definitely remember only one rug. Plaintiff described the first rug as a bristly, brushy-type rug and the second as a throw rug. Store employees testified there was only one type rug used in the store. Plaintiff testified that the two rugs were lying next to each other, with no terrazzo floor showing between them. The rugs were soaking wet. The floor was 'very wet' in the area around the rugs. Plaintiff said the second rug was lying flat on the floor and seemed to be in good order; was not crumpled, bunched up or turned up on one end. She wiped her feet on the first rug, she said, then stepped directly from the first rug to the second rug, with both feet. When she did so she said she felt the rug 'go' and when it 'went' both her feet slipped and the rug slipped and she 'flew through the air--sailed right with the rug--and it was a sensation like a roller coaster.' The next thing she knew she was on the floor, having landed on her left shoulder with her left leg curled or bent up into her body and her right leg extended straight out. She testified that on other occasions when she had been in the store while it was raining and the floor was wet the floor had been slick or slippery as she walked across it. Mr. Mazola, store manager, described the wetness of the floor as not meaning there was a quarter of an inch of water on it; it was 'just wet.' The area around the rug and the floor was mopped on an average of every 20 minutes that day, and the floor had been mopped between 5 and approximately 15 minutes before plaintiff fell, according to the store manager. He said that water could be wrung out of the mop after using it; that over a wide area 'quite a bit of slush' could be 'picked up.'

The rugs used at Schnucks Market, including the rug on which plaintiff fell, were rented from and supplied by a laundering service, Dustex Service, Inc. Dustex represented to prospective customers the nonskid characteristics of its rugs. The particular rug upon which plaintiff fell was not available at trial, it having been collected and returned to Dustex after this occurrence. Instead, Schnucks Market produced Exhibit 1, a Dustex rug, identified by the store manager and by the sales manager of Dustex as the same type of Dustex floor mat or rug supplied to Schnucks Market during the month of January, 1968, and identified by the store manager as the same type of rug which was on the floor at the time plaintiff fell.

The bone of contention on this appeal is the testimony of expert witness P. D. Trowbridge relating to Exhibit 1 and experiments he conducted testing its nonskid qualities.

Mr. Trowbridge testified as follows: He inspected Exhibit 1 and performed tests with it on the floor of the market where plaintiff fell. The underneath side of the rug has a rubber-type coating which is normally considered a gripping or nonskid type of material. That surface is textured, and when pressed has a tendency to adhere more closely to the surface on which it is put, with the exception of an oily surface. He caused the surface of the floor to be completely or almost completely covered with clear water, wetting an area some 8 by 10 feet in size with a fourth of a bucketful. Then he made a check to see if the rug would slip sideways, by stepping upon it after spreading it, rubberized surface down, and by trying to move or push it along the floor. It remained tight to the floor and would not move with pressure applied on the top of the rug. He then poured more water on the rug, this time on the top side, until the rug was completely saturated with water--until water 'oozed' out when the rug was stepped on. Again he tried to move the rug, but it adhered very closely to the floor. He was unable to scoot it at all. 'It wouldn't even move,' whether he put his foot on it lightly, or applied his full weight of 170 pounds with both feet. He walked back and forth sideways and longwise on the rug and tried standing on the side and pushing it on the floor with both light and heavy pressure, but it would not move. In answer to a hypothetical question he gave his opinion that with one foot it is inconceivable that the rug would move; that both feet on the rug (as plaintiff testified she had stepped onto the rug) it is 'practically impossible' for the rug to move. He admitted that oil accumulates on store parking lots and that if oil and water were present the adhesive quality of the rug would be impaired but considered that it would be in an amount insufficient to affect the test appreciably.

He also agreed that age would cause deterioration of the rubber material on the rug and loss of some of its adhering quality but he could not estimate how long it would take to wear out without considerable further testing.

Both sides agree that the law with respect to the admissibility of evidence of experiments, as declared in Faught v. Washam, 329 S.W.2d 588, 598 (Mo. 1959), quoted in Wilcox v. St. Louis-Southwestern R. Co., 418 S.W.2d 15, 19 (Mo. 1967), is that 'experimental evidence is admissible, in the sound judicial discretion of the trial court, when it is shown that the experiment was conducted under conditions substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in suit. However, it is not required that the conditions surrounding the experiment should have been precisely identical with those surrounding the occurrence under investigation; and, if the conditions were substantially similar, the differences in...