Krengel v. Midwest Automatic Photo, Inc.

• Decision Date: 12 January 1973
• Docket Number: No. 43539,43539
• Citation: 295 Minn. 200,203 N.W.2d 841
• Parties: Martin KRENGEL, et al., Respondents, v. MIDWEST AUTOMATIC PHOTO, INC., et al., Appellants.
• Court: Minnesota Supreme Court

Page 841

203 N.W.2d 841

295 Minn. 200

Martin KRENGEL, et al., Respondents, v. MIDWEST AUTOMATIC PHOTO, INC., et al., Appellants.

No. 43539.

Supreme Court of Minnesota.

Jan. 12, 1973.

Syllabus by the Court

1. Where plaintiff tripped and fell over a 1 1/4-inch riser in a photo booth located upon business property in an accident which occurred prior to our decision in Peterson v. Balach, Minn., 199 N.W.2d 639 (1972), the applicable law in determining the issue of negligence is that relating to business invitees.

2. A clearly visible change in elevation of adjacent floors, in a store, without the inclusion of other material factors, is not evidence of negligence. An owner is not the insurer of the safety of an invitee, who must use reasonable care for his own protection.

3. Distracting circumstances may permit recovery for injuries sustained in a fall over a change in elevation of adjacent floors.

4. The doctrine of comparative negligence has affected the weight to be given 5. Where defendants are jointly liable, the negligence of plaintiff shall be compared to the combined negligence of defendants in determining the right of recovery.

to our prior decisions in so-called 'trip and fall' [295 MINN 201] cases. The evidence in this case justifies the apportionment of negligence made by the jury.

6. In determining joint liability, the court should determine whether the record establishes the existence of the elements of a joint adventure: The contribution of the parties, joint proprietorship or control, sharing of profits, and the existence of a contract. The evidence in this case sustains a finding of joint liability.

7. Damages awarded by the jury, though liberal, will be sustained when supported by adequate evidence.

8. This court, having amended Rule 49.01, Rules of Civil Procedure, to permit explanation to the jury by the trial court and counsel of the effect of their answers to special interrogatories, need not comment on the asserted invalidity of L.1971, c. 715.

Affirmed.

McLean, Peterson & Sullivan, Mankato, for appellants.

Regan & Regan, Mankato, for respondents.

John V. Norton, Stillwater, for Minn. Trial Lawyers Assoc., amicus curiae.

Heard and considered en banc.

OPINION

TODD, Justice.

Action for damages by plaintiffs for injuries sustained by Irma L. Krengel in a fall on the premises of defendant F. W. Woolworth Company on October 2, 1968. The jury returned a verdict assessing plaintiff Irma Krengel's damages in the sum of $44,000 and those of her husband, plaintiff Martin Krengel, in the sum of $10,000. The jury further found plaintiff Irma Krengel 30 percent negligent; defendant F. W. Woolworth Company 30 percent negligent; defendant Auto Photo Company 30 percent negligent; and defendant Midwest Automatic Photo, Inc., 10 percent negligent. Defendants appeal from the trial court's denial of their motion in the alternative for judgment notwithstanding the verdict, for amended findings and order for judgment, or for a new trial. We affirm.

Defendant F. W. Woolworth Company (Woolworth) had a grand opening of its new store in Mankato, Minnesota, on October 2, 1968. In response to advertising, plaintiff Irma Krengel and her friend, Joann Knewtson, together with Mrs. Knewtson's two small children, Jackie, age 3, and Chad, age 1, entered the newly opened store. The purpose of their trip was to collect free records being distributed as part of the grand opening. The women proceeded through the store to the record department and each obtained their free record. As they were preparing to leave the record department, Mrs. Knewtson suggested that pictures be taken of the children at a photo booth across from the record department.

The photo booth was a self-contained unit and was standing away from the wall in an open, well-lighted area of the store. There were no railings or counters near the photo booth. The photo booth is manufactured by defendant Auto Photo Company (Auto Photo) and distributed in the Minnesota area by defendant Midwest Automatic Photo, Inc. (Midwest). Midwest had installed the booth in the Woolworth store pursuant to a contractual agreement between Woolworth and Auto Photo, who in turn sold the booth to Midwest. Once the booth was installed and operating, Woolworth was to collect the money from the booth on a regular basis and send to Midwest its share of the revenue. Woolworth was further responsible for certain elementary maintenance of the photo equipment, while Midwest was responsible for installation and repairs of the equipment. The booth installed at the Mankato store was identified as a Model 20 booth, which is 64 inches in length, 29 1/2 inches wide, 73 3/4 inches high, with an illuminated sign on the top saying, 'PHOTOGRAPHS.' The booth weighs 691 pounds and is not permanently affixed to the Woolworth premises. There is a doorway entrance to the booth, and on the upper left-hand side of the booth there is a sign which says, 'PHOTOGRAPHS--4 POSES,' and depicts various pictures. On the right-hand side of the door is a vanity mirror and inside there is a stool for customers to sit upon while their picture is being taken. There is a narrow, yellow panel on the right-hand side of the door below the vanity mirror and a wider, wood-grain panel on the left-hand side of the door below the sign advertising the photographs. There is a mural on the back wall of the booth visible through the door and a small wainscot of the wood-grain material on the interior of the booth. The floor of the booth is black in color and is 1 1/4 inches higher than the floor area upon which it sits. The booth is trimmed in black, including the riser or step-in portion of the booth where one enters the interior. The black color of the riser tends to blend in with the black area on the floor on the interior of the booth. On the day of the accident, the booth was sitting on a gray tile floor in the Woolworth store and the floor area was free of debris.

Mrs. Krengel and Mrs. Knewtson approached the booth area and Mrs. Knewtson placed her younger child, Chad, in the booth on the stool. She determined, however, that he was too small and did not sit high enough on the stool. She therefore requested that her daughter, Jackie, be seated first in order to hold Chad. Mrs. Krengel then picked up Jackie, who was standing beside her, by holding her under the armpits, and proceeded to the photo booth area. At this time Mrs. Krengel was wearing shoes with about 2-inch heels. As she proceeded to place the little girl on the stool inside the booth, her foot caught on the riser and she fell, sustaining a broken ankle and other injuries which required extensive care, hospitalization, and treatment. As a result of these injuries, she sustained a 40-percent disability of the lower extremity.

Mrs. Krengel testified that she did not observe the riser as she first approached the booth and that she did not see it as she was carrying the child toward the booth because her attention was focused upon the signs on the booth and the mirrow. One witness, testifying on behalf of defendants, admitted that they contemplated that people would be carrying small children into the booth. There was neither a sign indicating the change in elevation nor a color change in the floor of the booth itself, other than the distinction between the floor area surrounding the booth and the riser and floor area of the booth itself.

1. Defendants first claim that they are free from negligence and plaintiff is guilty of contributory negligence as a matter of law. This court must consider all testimony in a light most favorable to the prevailing party. We need only find sufficient, competent evidence reasonably tending to support and sustain the jury's finding. Coenen v. Buckman Building Corp., 278 Minn. 193, 198, 153 N.W.2d 329, 334 (1967); Zuber v. N.P. Ry. Co., 246 Minn. 157, 74 N.W.2d 641 (1956).

Since this accident occurred prior to our decision in Peterson v. Balach, Minn., 199 N.W.2d 639 (1972), where we abolished the distinction between invitee and licensee, the court properly instructed the jury in this case that plaintiff was a business invitee. In addition, it properly instructed the jury to consider the rules of law applicable to define the responsibility of defendants to business invitees.

2. Our court on numerous occasions has considered claims by plaintiffs who have slipped or stumbled over changed elevations in commercial store areas. In many such cases, or in cases involving similar circumstances, we have sustained a directed verdict in favor of the defendant or reversed and remanded with directions to enter judgment for the defendant. Anderson v. Sears, Roebuck & Co., 223 Minn. 1, 26 N.W.2d 355 (1946); Dukek v. Farwell, Ozmun, Kirk & Co., 248 Minn. 374, 80 N.W.2d 53 (1956); and cases cited therein.

From these cases the general rule has developed that the existence of a clearly visible change in the level of adjacent floors, without the inclusion of other material factors, is not evidence of negligence. In Johnson v. Evanski, 221 Minn. 323, 326, 22 N.W.2d 213, 215 (1946), we defined the duty that an owner of a building has to one who enters his place of business as an invitee:

'* * * (D)efendants were under a duty to exercise reasonable care to keep their store in a reasonably safe condition for the ingress, progress, and egress of customers. * * * In order to charge defendants with negligence, a breach of the duty to keep the premises reasonably safe for plaintiff must appear. * * *

'Breach of duty such as to constitute negligence in the keeping of the premises reasonably safe is not proved by the mere occurrence of an accident. Negligence must be predicated on what should have been reasonably anticipated, not merely on what happened. * * * The duty is to guard, not against all possible consequences, but only against those which are reasonably to be anticipated in the normal course of events.'

We further held in ...