Lapierre v. Greenwood

• Decision Date: 21 June 1957
• Docket Number: No. 9556,9556
• Citation: 133 A.2d 126,85 R.I. 484
• Parties: , 64 A.L.R.2d 392 Alice LAPIERRE v. Ralph F. GREENWOOD d.b.a. Stafford Mills. Ex.
• Court: Rhode Island Supreme Court

Page 126

133 A.2d 126

85 R.I. 484, 64 A.L.R.2d 392

Alice LAPIERRE v. Ralph F. GREENWOOD d.b.a. Stafford Mills.

Ex. No. 9556.

Supreme Court of Rhode Island.

June 21, 1957.

Aram A. Arabian, Providence, for plaintiff.

Higgins & McCabe, Providence, Crowe & Hetherington, Pawtucket, for defendant.

ANDREWS, Justice.

This is an action of trespass on the case for negligence arising out of a fall by the plaintiff upon a stairway in the defendant's store in Pawtucket. The case was tried in the superior court before a justice thereof sitting with a jury, which returned a verdict for the plaintiff for $15,000. The defendant filed a motion for a new trial which was denied. His exceptions to the denial of his motions for a directed verdict and for a new trial, to certain adverse rulings on evidence, and to the refusals of the trial justive to charge as requested make up his bill of exceptions.

The plaintiff, who is a dressmaker, together with a friend Margaret Guestello visited defendant's store on March 9, 1950. They went to the second floor, but made no purchases and then they started to walk down the stairs. When part way down plaintiff, as she testified, caught her left heel on the third or fourth stair, lost her balance and fell the rest of the way to the first floor. She suffered a compound fracture of her left ankle and was out of work for a year.

Since defendant has waived his exceptions to the rulings on evidence, the first exception on which he relies is to the refusal of the trial justice to direct a verdict in his favor.

The declaration alleges that 'the stair covering was in a worn and dilapidated condition.' According to Webster's New International Dictionary (2d ed. 1946) p. 730, 'dilapidated' means 'Decayed; fallen into partial ruin; injured by bad usage or neglect.' The synonym is 'ruined.'

We have frequently stated the duty of a storekeeper to his customers. He is not an insurer and is liable only for negligence which is subjecting his customers to an unreasonable risk of harm. In Langley v. F. W. Woolworth Co., 47 R.I. 165, at page 167, 131 A. 194, at page 195, it is stated: 'The duty of a storekeeper to an invitee or business visitor is to use reasonable care to keep the premises in a safe condition for the purposes of the invitation.' It is equally well settled that the plaintiff must prove the specific negligence alleged. In Faubert v. Shartenberg's, Inc., 59 R.I. 278, at page 281, 195 A. 218, at page 219, the court held: '* * * it is necessary that a plaintiff invitee, to recover, must allege and prove some specific acts of commission or omission by the defendant which amount in law to negligence * * *.'

The plaintiff in the case at bar testified: 'I got my heel caught, must have been a hole or something.' In response to the following question: 'In other words, what caught your heel?' she answered: 'Well, I don't know. It had to be something; I felt it.' Mrs. Guestello testified: 'I thought her foot got caught somewhere * * *.' The plaintiff's physician Dr. John H. Gordon testified that she told him she caught her heel on a carpet on the stairs, and the hospital record is to the same effect. The plaintiff stated that the black rubber matting on the treads 'looked old and worn.' Mrs. Guestello testified with reference to the stair covering: 'No seem new, seem old.' The plaintiff was so badly injured that she could not examine the stairs after she fell, and her friend was so upset by the accident that she did not do so. Since the latter testified that she did not look at the stairs when she walked up, her testimony as to the condition of the stairs is practically negative.

The plaintiff was 'positive' that when she went up the stairs only the treads were covered and she particularly described the covering as a rubber matting nailed to the treads. It would appear that plaintiff took particular notice of the stairs and such being the case she should have seen breaks or holes in the covering if there were any. It was incumbent on her to show that the covering on the stairs on which she fell was 'worn and dilapidated.' This she failed to do. The words 'old and worn' as testified by plaintiff is too indefinite to fix liability on the storekeeper. See Shinkwin v. H. L. Green Co., 318 Mass. 70, 71, 60 N.E.2d 372. To require the storekeeper to keep the covering new would be an unreasonable burden. See Walker v. F. & W. Grand Five-Ten-Twenty-Five-Cent Stores, Inc., 137 A. 563, 5 N.J.Misc. 541, affirmed 104 N.J.L. 450 140 A. 922. However, if the covering was worn to the point of dilapidation he could be found liable. There is no evidence direct or by reasonable inference whatever that there were any breaks or holes in the tread or treads on which plaintiff claims to have fallen. The fact that she caught her heel and fell is not disputed but that is no evidence of negligence.

In Ziegler v. Providence Biltmore Hotel Co., 59 R.I. 326, at page 330, 195 A. 397, 398, this court stated: 'Counsel for plaintiff contends substantially that the second stair must have been slippery and dangerous because she slipped and fell on it. This reasoning begs the question to be proved and is therefore faulty. She might have fallen because of any of several other causes of which the defendant had no reasonable notice and for which it would not be liable. We have held recently that an invitee's fall on the premises of an invitor is not, of itself, evidence of the latter's negligence in maintaining a floor in an alleged slippery and dangerous condition.' As is said in 4 Shearman & Redfield on Negligence (rev. ed.) § 797, p. 1820: 'It is not uncommon for a person to fall down stairs when there is no defect in the stairway or its covering. A heel may catch on the edge of the stair, or the carpet, and a fall results. The fault rests, not with the stairway, but with the person who so placed his foot.'

The plaintiff was wearing open-toed shoes with heels three inches high on the outside, two and one-half inches on the inside tapering to a rubber lift approximately one inch square. She admitted that the rubber lift on the left heel was 'worn pretty much toward the back part.' The other heel was also worn in the same place but not as much as the left heel. The plaintiff's fall may well have been caused by the way she stepped, and the catching of her rubber heel on the rubber matting in no way indicates any defect in the matting.

In Wyzga v. David Harley Co., 60 R.I. 480, 482, 199 A. 452, 453, the plaintiff fell on the defendant's stairway. There was testimony 'that the board in question, when they viewed it, was worn at its edge 'down to a point like,' and 'it was all sharp like,' and that this condition extended back from the outer edge of the board a few inches. There was, however, no evidence that the depth of the board was completely worn through, or that the edge or nose of the board was in any manner indented, broken or slippery at the point in question.' A direction of a verdict for the defendant in that case was sustained, the court saying in part, 60 R.I. at page 483, 199 A. at page 453: 'We are of the opinion that if the trial justice had submitted the above issues to the jury, t...