Kopfinger v. Grand Central Public Market

Decision Date25 February 1964
Citation37 Cal.Rptr. 65,60 Cal.2d 852,389 P.2d 529
Parties, 389 P.2d 529 Theresa KOPFINGER, Plaintiff and Appellant, v. GRAND CENTRAL PUBLIC MARKET et al., Defendants and Respondents. L. A. 27580
CourtCalifornia Supreme Court

Ernest George Williams, Los Angeles, for plaintiff and appellant.

Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker, Los Angeles, for defendants and respondents.

PETERS, Justice.

Plaintiff appeals from a judgment of nonsuit rendered in an action growing out of a slip and fall resulting in serious personal injuries.

About noon on January 29, 1960, Theresa Kopfinger, then 76 years old, was walking on the public sidewalk on the east side of Hill Street in Los Angeles. She was proceeding toward the center aisle entrance of the Grand Central Public Market, where she was a regular customer, when she fell on the sidewalk in front of the north aisle, near one of the retail meat stalls operated by Melton. She slipped on some eat product, probably She slipped on some meat product, probably approximately six to eight inches. Plaintiff was hospitalized and underwent surgery as a result of injuries thus sustained.

The rules applicable to appeals from nonsuits are well settled.

'(A) nonsuit may be granted '* * * 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given. '" (Meyer v. Blackman, 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 38, 381 P.2d 916, 918.) A legitimate inference, of course, must be founded 'on a fact legally proved.' (Code Civ.Proc. § 1960.) While the use of a nonsuit is a procedural device of great value when appropriately utilized, it may not be used to deprive a litigant of his right to have his case decided by the jury when under the evidence, and the inferences permissible therefrom, a verdict in his favor could reasonably be returned. In this light, we must examine the evidence here involved.

Grand Central is a large market, comprised of approximately 50 stalls. It runs through the entire block from Hill Street to Broadway, fronting on both, and opening directly onto the sidewalk, i. e., it is an open or arcade type market. Melton leased three stalls, two on the north side of the market, the third facing Hill Street and situated between the north and center aisles, just off the Hill Street sidewalk, from which it was separated only by an open aisle. Melton also leased a receiving and cutting room, which was located on the north side of the market. There were two other meat stalls in the market, one in the basement and the other on the Broadway side (neither of which is a party hereto). A delicatessen adjoined the east end of Melton's Hill Street stall. Melton's meat was delivered to him by approximately 20 suppliers. Neither the market nor Melton provided a parking area, and the deliverymen would park at the curb on Hill Street or in an alley to the south of the market.

Deliveries to Melton took place in the mornings, generally being completed by 10 or 11 o'clock. On the day of the accident, and prior to its occurrence, there had been approximately 12 deliveries. Deliveries were made by the drivers lifting or dragging the meat out of the trucks and wheeling it from the trucks to the cutting room on hand carts supplied by Melton, or by carrying the meat on their backs. In addition, a rendering company picked up Melton's waste every Friday (the accident happened on a Friday). The waste was wheeled in Melton's carts from the cutting room to the truck. There was testimony to the effect that there were trimmings and waste on the cutting room floor, and that there were no mats outside the cutting room doors. There was no evidence as to whether the rendering company had been there on the day of the accident. Mr. Melton testified that he 'might have at one time or another' noticed meat products along the side of the road or on the sidewalk. Mr. Abbott, assistant superintendent of the market, testified that the deliverymen drag the meat out of the trucks and that he had seen meat products fall to the ground; that some of the trucks have doors which are on the side and open over the sidewalk; and that he was aware of instances of fruit having fallen onto the sidewalk during the course of delivery. Grand Central employed several porters to clean and sweep the market aisles. While no exact pattern was used, it was estimated that the entire area was swept every 15 or 20 minutes. When sweeping around Melton's stall, the porters would usually but not always sweep the sidewalk in front of it. Whenever Melton desired the services of a porter, he obtained one, upon request, from the market. There were no porters stationed on the sidewalk at the time of deliveries or immediately thereafter. Melton had never requested that this be done, nor had this ever been discussed with the officers of the market. With respect to the gristle, the record shows that it was flattened, roughly the size of a 50-cent coin, less than a quarter of an inch thick, and dirty grey in color. It was disposed of by the assistant superintendent when he arrived at the scene of the accident. There was testimony that gristle is a tendon-like part that is found between layers of meat, on the inside. On this evidence the trial court granted a nonsuit. It was error to do so.

There was evidence which, if believed, established that: as a result of the manner of operation of Melton's stall and the market, some meat products fell to the ground in the course of Melton's activities. The inference is reasonably probable that this occurred during that morning's deliveries, the last of which had occurred over an hour before the accident. Thus, it may be inferred, the hazard had been permitted to exist for a period of time in excess of that which would have been permitted by a man of ordinary caution.

This was sufficient evidence to require the case to go to the jury. Had it been submitted to the jury, the rule is that: "(T)he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. * * * ' (Citation.) Furthermore, negligence may be proved circumstantially like any other issue of fact, and indirect evidence may outweigh direct evidence on the contested point. (Citation.) * * *. '* * * direct evidence may be disbelieved and contrary circumstantial evidence relied upon to support a verdict or finding.' (Citation.)' (Bruce v. Ullery, 58 Cal.2d 702, 711, 25 Cal.Rptr. 841, 846, 375 P.2d 833, 838.) It also must be remembered that '(w)here reliance is placed on circumstantial evidence, it is not necessary that there be no possibility of deriving any other reasonable inference from the evidence.' (Varas v. Barco Mfg. Co., 205 Cal.App.2d 246, 262, 22 Cal.Rptr. 737, 746.)

In reference to the substantive law applicable to this case, it is elementary that 'All persons are required to use ordinary care to prevent others being injured as a result of their acts; ordinary care has been defined as that degree of care which people of ordinarily prudent behavior could be reasonably expected to exercise under the circumstances of a given case.' (Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12, 16.) By failing to clean the sidewalk after taking deliveries to the business across it, knowing or having reason to know that this resulted in some debris falling to the ground and sidewalk, Melton and Grand Central conducted their business activities in a manner which a jury could reasonably find was in breach of their common-law duty of care to the plaintiff. Grand Central, the front of which was open to the sidewalk, and directly contiguous to it, was aware that deliveries took place across the sidewalk (to Melton and to other stalls as well), and that this occasionally resulted in debris falling on the sidewalk. Melton equivocated when asked whether he had seen such debris. The market provided porters who swept the aisles and the sidewalk. The testimony supports the inference that the meat product had been on the sidewalk at least for an hour or more before plaintiff fell. When the activities of a business enterprise, conducted for its economic benefit, are such as to create a hazard on the public sidewalk, of which fact the defendants know or have reason to know, and particularly when, as here, the sidewalk is immediately adjacent to the nonenclosed aisles of a large supermarket catering to the passing pedestrian traffic, there exists a duty to protect from injury those so endangered.

Defendants are not here being held to answer for any negligence in the manner of delivery, but rather for failure to provide adequately for the cleaning up of the sidewalk after deliveries. Thus, the fact that the deliveries were made by employees of meat wholesalers, independent contractors as to defendants, is not relevant in this action. Defendants failed to require or provide for delivery other than across the public sidewalk....

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