Lee v. Meier & Frank Co.

• Decision Date: 17 June 1941
• Citation: 114 P.2d 136,166 Or. 600
• Parties: LEE <I>v.</I> MEIER & FRANK CO.
• Court: Oregon Supreme Court

166 Or. 600

114 P.2d 136

LEE

v. MEIER & FRANK CO.

Supreme Court of Oregon.

Argued April 15, 1941.

Affirmed June 17, 1941.

Negligence — Invitee — Degree of care

1. A customer in a mercantile establishment is an "invitee" and owner owes to customer duty to use care of reasonably careful and prudent person to keep passage ways used by customer in reasonably safe condition so that customer will not be exposed to danger unnecessarily.

Negligence — Reasonable care

2. A storekeeper is not an "insurer" of customers' safety.

Negligence — Defects — Knowledge of owner

3. Where customer stumbles over object in aisle of store or slips on foreign substance on floor, storekeeper is not liable unless he placed object or slippery substance in aisle, or unless he had actual knowledge of its presence or constructive notice concerning it arising out of its presence in the aisle for a sufficiently long time.

Negligence — Reasonable care

4. A customer cannot expect to find aisle of store always free from danger, and must employ due care.

Negligence — Invitee — Reasonable care

5. A possessor of land is subject to liability for bodily harm caused to business visitors by natural or artificial condition thereon if, but only if, he knows, or by exercise of reasonable care could discover, condition which if known to him he should realize as involving an unreasonable risk to them, and has no reason to believe that they will discover condition or realize risk involved therein, and invites or permits them to enter or remain on land without exercising reasonable care to make condition reasonably safe or to give warning adequate to enable them to avoid harm without relinquishing any of the services which they are entitled to receive, if possessor is a public utility.

Negligence — Question for jury

6. In action for death of customer who tripped over pillow which had fallen into aisle of store, evidence failing to show that storekeeper had knowledge of pillow's presence in aisle, and failing to show how long pillow had remained in aisle before customer tripped over it, was insufficient to make jury case.

Evidence — Judicial knowledge

7. It is a matter of common observation that every store, in order to conserve space, arranges its merchandise in piles.

Negligence — Display merchandise

8. The arrangement of merchandise in a pile in store so that there is a possibility that merchandise may fall into aisle is not "negligence" unless storekeeper permits merchandise to remain in aisle after he has received timely notice of its presence there or fails to make visits at reasonable intervals to the place so as to acquaint himself with its condition.

Negligence — Witnesses — Testimony

9. In action for death of customer who tripped over pillow which had fallen into aisle of store from pile of pillows on display rack, rejection of testimony of witness who had visited store one day before accident, witness who had visited store from one week to two weeks after accident, and witness who had visited store one week before accident and had stumbled over pillow, and all of whom would testify that pillows were piled up so that they would fall into aisle during customers' handling of pillows, was discretionary.

                  Duty and liability respecting condition of store or shop
                notes, 33 A.L.R. 181; 43 A.L.R. 866; 46 A.L.R. 1111; 58 A.L.R
                136; 100 A.L.R. 710. See, also, 20 R.C.L. 66 (7 Perm. Supp
                4820)
                  45 C.J., Negligence, § 223.
                

Before KELLY, Chief Justice, and RAND, LUSK, BAILEY and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Death action by Gladys Lee, administratrix of the estate of Katie F. Anderson, against Meier & Frank Company. From a judgment for defendant, plaintiff appeals.

AFFIRMED.

P.R. Harris, of Portland (A.F. Knight and Goldstein & Harris, all of Portland, on the brief), for appellant.

John F. Reilly, of Portland (Reilly & Davidson, of Portland, on the brief), for respondent.

ROSSMAN, J.

This is an appeal from a judgment of the circuit court in favor of the defendant based upon a ruling which sustained the defendant's motion for an involuntary nonsuit. The complaint alleges that the defendant maintained a stack of pillows in its store in such a negligent manner that one of them fell to the floor of the aisle where it tripped the plaintiff's decedent while she, as a patron of the store, was walking in the aisle. According to the complaint, the deceased, Katie F. Anderson, sustained injuries which shortly caused her death. The complaint charges that (1) the defendant's pillow rack was not of sufficient size; (2) the rack was not provided with a sufficient guard to prevent pillows from falling into the aisle; and (3) the defendant piled pillows in the rack "at a careless and negligent height, manner and arrangement." The answer denies all averments of negligence.

November 19, 1937, Mrs. Katie F. Anderson, plaintiff's decedent, accompanied by Mrs. Anna K. Hurt, a friend, went in the elevator to the fifth floor of the defendant's store. When they stepped out of the elevator there was directly in front of them and plainly in sight the rack of pillows. The pillow rack was constructed around one of the pillars which supports the sixth floor. The base of the rack was a platform 10 or 12 inches above the floor and 4 or 5 feet square. Around the platform was a protective railing 8 or 9 inches in height. The top of this railing was 21 1/2 inches above the floor. The pillows were about 15 inches square and about 6 inches deep. According to Mrs. Hurt, "the pillows on that rack were piled unusually high." Again referring to them, she said that they "were piled up some two or three pillows high along the edge there and from that on up to between 4 and 5 feet at the post."

Mrs. Anderson, at the time of her injury, was 70 years of age. When she and Mrs. Hurt left the elevator they walked directly ahead with the intention of reaching some department of the store beyond the pillows. Adjacent to the pillow pile the aisle was narrow, and accordingly Mrs. Hurt walked slightly in front of Mrs. Anderson. We now quote from Mrs. Hurt's description of the accident: "* * * and all at once she (Mrs. Anderson) cried out, `Oh, Aunty Em,' and I turned around and she was just falling to the floor, and she said, `What is that under my foot; what did I stumble over?' And I looked at her feet and just at that moment a woman came up on the other side to help me pick her up, and she picked up a pillow from under her feet and threw it up on the rack." According to Mrs. Hurt, the woman just mentioned was a customer. She apparently departed at once. Mrs. Hurt had not seen the pillow before the fall occurred, and no other witness mentioned it. The record does not disclose how long it had been upon the floor nor how it happened to be there. Likewise, the record does not indicate whether any customer was examining the pillows at the time of Mrs. Anderson's and Mrs. Hurt's approach.

1-5. In support of her contention that the evidence above reviewed indicated negligence upon the defendant's part, the plaintiff cites and relies upon Kroger Grocery & Baking Co. v. Diebold, 276 Ky. 349, 124 S.W. (2d) 505; Etta Rogers v. J.C. Penney Co., 127 Neb. 885, 257 N.W. 252; Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552, 192 Atl. 419; Saunders v. Williams & Co., 155 Or. 1, 62 P. (2d) 260; Hovedsgaard v. Grand Rapids Equipment Corp., 138 Or. 39, 5 P. (2d) 86; Lombardi v. F.W. Woolworth Co., 303 Mass. 417, 22 N.E. (2d) 28; Johnson v. Hoffman, 132 Or. 46, 284 P. 567; Sears, Roebuck & Co. v. Peterson, 76 Fed. (2d) 243; Fox v. Ben Schechter & Co., 57 Ohio App. 275, 13 N.E. (2d) 730; Terminal Railroad Ass'n v. Farris, 69 Fed. (2d) 779; O'Bauer v. Katz Drug Co., (Mo. App.) 49 S.W. (2d) 1065; Hodge v. Weinstock, L. & Co., 109 Cal. App. 393, 293 P. 80; and annotation in 100 A.L.R. 742. Additional collections of decisions may be found in the following annotations: 58 A.L.R. 136; 46 A.L.R. 1111; 43 A.L.R. 866; and 33 A.L.R. 181. Of the authorities cited by the plaintiff Terminal Railroad Ass'n v. Farris has no application to the duty owed by a storekeeper to his patron. We shall, therefore, exclude it from our further discussion. The other decisions cited by the plaintiff, as well as those collected in the defendant's brief, deem a customer in a mercantile establishment an invitee. They hold that the owner owes to his customers the duty to use the care of a reasonably careful and prudent person to keep the passageways used by his customers in a reasonably safe condition so that they will not be exposed to danger unnecessarily. In stating that rule, many of the decisions add by way of caution that the storekeeper is not an insurer of his customers' safety. In all of the decisions above cited, with the exception of Rogers v. J.C. Penney Co., the customer sustained his injury through a fall which resulted from stumbling over an object in the aisle or slipping upon a foreign substance on the floor. In the Rogers case the customer fell down a concealed stairway. The decisions hold that a storekeeper is not liable unless he placed the object or slippery substance in the aisle, or, if someone else placed it there, they hold that he is not liable unless he had actual knowledge of its presence or constructive notice concerning it arising out of its presence in that place for a sufficiently long time. Since the law exacts of the storekeeper nothing more than the exercise of reasonable care, the patron can not expect to find the aisle always free from danger; therefore, he must employ due care also. But, since this appeal presents no issue of contributory negligence, we shall say no more upon that subject. The legal principle which we stated in the above lines is expressed in somewhat amplified form in Restatement of the Law, Torts (Negligence), § 343, thus:

"A possessor of land is subject to liability for bodily harm...