Levin v. Sears, Roebuck & Co.

• Decision Date: 29 March 1976
• Docket Number: No. KCD,KCD
• Citation: 535 S.W.2d 525
• Parties: Ruth Ann LEVIN, Respondent, v. SEARS, ROEBUCK AND COMPANY, Appellant. 27404.
• Court: Missouri Court of Appeals

Page 525

535 S.W.2d 525

Ruth Ann LEVIN, Respondent, v. SEARS, ROEBUCK AND COMPANY, Appellant.

No. KCD 27404.

Missouri Court of Appeals, Kansas City District.

March 29, 1976.

Robert M. Kroenert, John W. Cowden, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for appellant.

Charles C. Shafer, Jr., Kansas City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

The respondent (hereafter plaintiff) brought an action for damages for personal injuries sustained as a result of a fall in the parking lot of the appellant (hereafter defendant). The case was tried before a jury and resulted in a verdict and judgment for the defendant. Plaintiff filed a motion for a new trial, which was sustained on the sole ground that the court erred in giving Instruction No. 4 on the subject of contributory negligence. This reason stems from the fact that the jury was not properly instructed as to the law that, if contributory negligence was found, it was further required that a finding be made that such contributory negligence 'directly' caused the plaintiff's damage. Defendant made no serious attempt to refute this obvious and inherent error in Instruction No. 4 as to causation, but rather, asserts that such error 'if any' was immaterial and nonprejudicial, since plaintiff failed to make a submissible case of actionable negligence against the defendant and was guilty of contributory negligence as a matter of law, and that, therefore, the court erred in overruling its motion for a directed verdict and in sustaining plaintiff's motion for a new trial. In this state of the record, the prime problem for resolution is whether plaintiff made a submissible case for the jury.

In passing upon the sufficiency of plaintiff's evidence, an appellate court must always recognize and apply certain well-articulated rules and well-defined criteria. Such court must indulge the presumption that the plaintiff's evidence is true, disregard defendant's evidence in conflict therewith, and give the plaintiff every reasonable favorable inference to be drawn from all the evidence. But these rules and criteria do not go so far as to permit the appellate court to disregard the dictates of common reason and to accept as correct or true that which obviously under all the circumstances in evidence cannot be correct or true; nor to give plaintiff the benefit of any other than reasonable inferences. Hill v. Illinois Terminal Co., 100 S.W.2d 40, 47(4) (Mo.App.1937). See also, Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623, 629(4) (Mo.1958).

The application of general rules of appellate review are further restricted by other precautionary exceptions. The plaintiff is bound by his own testimony; may not have the benefit of or resort to the support of evidence inconsistent with such testimony, and conceded facts may not be disregarded. Neal v. Kansas City Public Service Co., 353 Mo. 779, 184 S.W.2d 441, 442(1, 2) (1944). The court may not supply missing evidence, give the plaintiff the benefit of unreasonable, speculative or forced inferences, or consider only isolated parts of the plaintiff's evidence. Merriman v. Johnson, 496 S.W.2d 326, 330(1) (Mo.App.1973); Economy Gas Co. v. Bradley, 472 S.W.2d 878, 880(2) (Mp.App.1971); Adler v. Laclede Gas Co., 414 S.W.2d 304, 306(1) (Mo.1967).

The plaintiff in the case at bar submitted her case upon a single theory of actionable negligence, as set forth in her verdict directing Instruction No. 3, which is as follows:

'Your verdict must be for the plaintiff if you believe:

First, the area of defendant's second parking level where plaintiff was walking was inadequately lighted and as a result the area was not reasonably safe for customers, and

Second, plaintiff did not know and by using ordinary care could not have known of this condition; and

Third, defendant knew or by using ordinary care could have known of this condition; and

Fourth, defendant failed to use ordinary care to provide adequate lighting, and

Fifth, as a direct result of such failure, plaintiff was injured unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.' (Emphasis supplied)

Under the above-noted requirements of review and the issue presented by the plaintiff's instruction above quoted, a somewhat detailed summary of the evidence is required. Initially, it should be noted that there is no dispute that the status of plaintiff was that of a business invitee upon nor that the defendant was the 'possessor' of, the place where plaintiff fell.

On January 9, 1971, the defendant operated a retail store in the Country Club Plaza, Kansas City, Missouri. In connection with this store, it maintained a three-level, open air, column supported parking facility for its customers across the street from the store. Access to the store was afforded by an enclosed ramp or walkway at the top (third) level of the parking facility passing over a public street. Access to the ramp for customers parking on the middle level was by means of an enclosed stairway. Entry to the stairway from the actual parking surface was by means of a concrete sidewalk about four feet in width and raised about four inches above the parking surface, constructed within but immediately adjacent to the outside walls, thence through a fire door and into the stairwell. Aside from the natural light through the open sides of the facility, there were a number of fluorescent lights hung from the ceiling and spaced at intervals on the second level. Two of these were immediately outside the door to the stairwell, at which point there was also an illuminated sign, 'To Store', guiding customers to the stairwell.

Between 9:30 and 10:00 o'clock a.m. on Saturday, January 9, 1971, Leo Levin drove his mother, the plaintiff, an elderly lady, to the defendant's store to shop for a television set. He parked his vehicle in the middle level of the parking facility, escorted his mother across the parking surface to the sidewalk, along the sidewalk to the access door, to the stairway, and thence to the third level, across the ramp or walkway, and into the store. Nothing untoward occurred during this walk into the store; no dangerous conditions or absence of light was noted by the plaintiff or her son.

The plaintiff purchased a television set and she and her son then proceeded by means of the ramp and stairway back to the middle level parking area. They were in the store about 20 to 30 minutes and at about 10:30 o'clock a.m. they arrived back at the door from the stairwell. They passed through the door side-by-side directly across the four-foot sidewalk and about four feet or more across the parking surface when the plaintiff fell. The son testified that the 'first thing I noticed that my mother was out of the grasp of my arm; and she laid on the surface of the parking lot area'. Neither Leo Levin nor the plaintiff had noticed any foreign substance on the parking surface before the plaintiff fell.

The son testified that when he got his mother to her feet, he noticed a 'glob' on the surface which was 'probably phlegm'. He didn't know what the 'glob' was, but it wa wet and did not look like it had been stepped in or disturbed. He observed no moisture 'or anything' on his mother's shoes.

Leo Levin testified that it was cloudy on the day of the fall and that the location of the fall did not receive much natural illumination. He stated that after his mother's fall, he, for the first time, noticed that the two fluorescent lights immediately over the door to the stairwell were not on; that he did not know how long they had been out; and that he had no trouble seeing the 'glob' when he got his mother to her feet.

The plaintiff testified that she had no difficulty with her walking. She stated that she made no specific observation of the lighting fixtures, but that some were lighted and some were not. There was a contrast in the amount of light in the brightly lighted store interior and the parking lot. This appears in her testimony:

'Q. Now, you mentioned that it was not bright in there, but you certainly--you could see, couldn't you?

A. Oh sure; I could see.' (Emphasis supplied)

Her version of the fall is thus revealed:

'Q. And as you walked through this door proceeding to the parking station, generally where were you looking?

A. Well, I can't say I was looking at anything, I was so enthused over the television; we were just talking about it and walking along.

Q. Did you walk along, by any chance, looking down to see where you were going?

A. No; my son had ahold of my arm. We were just walking along until I just flopped.' (Emphasis supplied)

The plaintiff testified and her counsel stipulated in the record that before her fall, she 'did not look down'. The following then appears from plaintiff's testimony:

'Q. Isn't it also true that prior to your fall, after you came out through those doors into the parking area that you were not looking to see if there was anything on the blacktop; isn't that true?

A. I wasn't looking.

Q. And you were not looking to see if there was anything on the blacktop?

A. No.' (Emphasis supplied)

After her fall, she observed a grayish substance on the surface and while she had no difficulty seeing it, she did not know how long it had been there. When she got in her son's vehicle after the fall, she noticed a substance on the sole of her shoe which was black and wet. She could not tell if the 'glob' had been stepped in but reached that conclusion because her shoe was wet.

The relationship of the parties at the time of plaintiff's fall was that of the possessor of land and invitee. The liability of the possessor (defendant) to its invitee (plaintiff) is generally declared in Restatement, Torts 2nd, Section 343, in the following terms:

'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of...