Little v. Butner

Citation348 P.2d 1022,186 Kan. 75
Decision Date23 January 1960
Docket NumberNo. 41616,41616
PartiesMary G. LITTLE, Appellant, v. Charles B. BUTNER, d.b.a. Butner IGA Food Liner; and Rath Packing Company, an Iowa Corporation, Appellees.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court.

1. When a notice of appeal particularly specifies the order from which the appeal is taken, but such notice does not include the court's order sustaining in part a motion to make the petition definite and certain, such order is no part of the appeal, and, although specified as error, presents nothing for appellate review.

2. The fact an injury occurs is not sufficient to establish liability and before a plaintiff can recover, he must allege and prove the negligence which was the proximate cause of the injury for which recovery is sought.

3. A person who enters a retail store for the purpose of making a purchase is a business invitee within the legal meaning of that term.

4. A proprietor of a business owes his customers or business invitees a duty to exercise due care to keep the premises reasonably safe for their use and if there is a dangerous place on the premises, he must safeguard those who come lawfully thereon by warning them of the condition and the risk involved; however, he is not an insurer of their safety.

5. Where the act or omission of a proprietor creates a dangerous condition on the premises, thus violating a duty to a customer, proof that he had notice of the dangerous condition is not a necessary element of negligence.

6. Upon entering a retail store, a mature and normal person must make reasonable use of his faculties for his own protection, and, in the interest of his own safety, he is required to use that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances.

7. The doctrine of assumption of risk applies only where there is knowledge and appreciation of the danger and peril, and the voluntarily placing of oneself in the way of such danger and peril (following Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227, 63 A.L.R.2d 175).

8. It is not contributory negligence for a business invitee upon the premises to fail to look out for danger where there is no reason for an ordinary prudent person to apprehend any.

9. Where the proprietor of a super market engages or permits a processor of meat products which are sold at retail in the super market, to carry on a demonstration in the store and samples are handed out to patrons and customers and children of tender years by a demonstrator, the processor owes the same or similar duty as the proprietor to exercise due care to keep the premises in a reasonably safe condition in the area where the demonstration is being conducted.

10. Under the circumstances set forth in p9 of the syllabus where it is alleged the proprietor and the processor agreed to, and carried on, a demonstration of the processor's meat products and that they knew or should have known samples would be dropped on the floor making it slick, slippery and dangerous for customers and patrons to walk upon, due care requires that receptacles or other means be provided for their disposal and that the floor be seasonably cleaned. Failure on the part of the proprietor and the processor to exercise the degree of care required constitutes negligence when they fail to warn a customer of the condition and the risk involved.

11. The trial court erred, as more fully set forth in the opinion, in sustaining the defendants' separate demurrers to the plaintiff's amended petition.

Roy N. McCue, Topeka, Lester M. Goodell, Marlin S. Casey, Raymond Briman and Thos. R. Sewell, Topeka, on the briefs, for appellant.

O. B. Eidson, Topeka, T. M. Lillard, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., and E. Gene McKinney, Topeka, on the briefs, for appellee Rath Packing Co.

Donald Patterson, Topeka, Irwin Snattinger, David H. Fisher, C. K. Sayler and Jack L. Summers, Topeka, on the briefs, for appellee Charles B. Butner.

FATZER, Justice.

The plaintiff appeals from an order sustaining separate demurrers to her amended petition in which she sought to recover damages for personal injuries resulting from a fall.

For the purpose of identifying the parties the appellant will be referred to as plaintiff, the appellee Charles B. Butner, d. b. a. Butner IGA Food Liner as Butner, and the appellee Rath Packing Company as Rath.

The plaintiff's petition which was filed May 1, 1958, alleged that on June 1, 1956, she fell and received painful and permanent injuries while shopping for groceries in Butner's store because the floor was made slick and slippery by meat samples dropped on the floor after being handed out to patrons, customers and children by a demonstrator carrying on a food demonstration for Rath's meat products. Butner's motion to make the petition definite and certain was sustained in part and plaintiff was directed to state (1) whether she slipped on and was caused to fall by meat samples on the floor; (2) whether the demonstrator of Rath's meat products was Butner's employee; (3) the facts forming the legal basis by which the alleged negligence of the demonstrator was imputed to Butner in the event the plaintiff did not allege the demonstrator was Butner's direct employee; (4) when Butner first had notice that meat samples were on the floor of the store, and (5) whether any condition or object prevented the plaintiff from seeing the condition of the floor where she slipped.

The amended petition re-alleged the facts above set forth, and further, that shortly before the time complained of Butner engaged or permitted Rath to carry on a demonstration of meat products in the store, the exact nature of the arrangement or agreement between Butner and Rath being unknown to the plaintiff but well known to the defendants; that as a part of the arrangement or agreement, Butner and Rath employed the services of a demonstrator to carry on the food demonstration who handed out products of Rath to patrons and customers of Butner's store; that the demonstration attracted a large number of patrons and customers and their children in that part of the store where the demonstration was being conducted which obstructed and hid from the view of the plaintiff the slick, slippery and dangerous condition of the floor, and that the plaintiff did not know whether the demonstrator was employed by Butner or Rath but the exact nature of the agreement was well known to the defendants.

Paragraph V of the amended petition reads in part as follows:

'Plaintiff further alleges and states that the defendants and each of them well knew that the demonstrater, as an employee and agent of either or both of them, would hand out meat products of the defendant Rath Packing Company in sample portions to patrons and customers of Butner's store, and to children of tender age; that the defendants and each of them well knew that said customers, patrons and children of tender age would drop particles of said meat products on the floor of the store and thereby cause the floor to become slick, slippery and dangerous; that the said demonstrator as an employee and agent of the defendants was present during said demonstration and knew or should have known that said meat products were being dropped and that as the customers and patrons walked over said meat particles, a slick, slippery and dangerous condition of the floor resulted; that as the plaintiff walked across the floor of said store, her feet suddenly and abruptly slipped on said meat particles and on the said slick and slippery floor, causing her to fall and receive painful and lasting injuries * * *.'

The plaintiff then alleged the proximate cause of her injuries was the negligence of Butner and Rath and each of them, their agents, servants and employees in the following particulars:

'(a) * * * in making provisions for said demonstration in said Butner IGA Food Liner store, with no precautions taken to prevent the dropping of meat samples upon the floor by customers to whom said samples were given;

'(b) * * * in handing meat samples or other substances to children of tender years, with no precautions taken for the disposal of said samples, when the defendants knew or by the exercise of reasonable care should have known that such meat samples or other products would be dropped upon the floor of said store;

'(c) * * * in not seasonably picking up any samples or parts thereof that had been dropped on the floor of said premises, and particularly in failing to take any seasonable steps to pick up the particular meat sample or other product that was dropped on the floor where the plaintiff encountered it causing her to fall in the manner hereinbefore alleged.'

We shall not discuss the injuries received, or their extent, as they are not material to a discussion of the legal questions presented.

The plaintiff first specifies as error the sustaining in part of Butner's motion to make her petition definite and certain. The point is not well taken. The notice of appeal specified that the appeal was only from the order of May 4, 1959, sustaining the defendants' separate demurrers to the plaintiff's amended petition; it did not include the order sustaining the motion to make definite and certain. No effort was made by the plaintiff to amend her notice of appeal, as authorized by G.S.1949, 60-3310, and thus broaden its scope to include the error specified. Under the facts presented, the specification of error is not subject to appellate review (Gaynes v. Wallingford (Conn), 185 Kan. 655, 347 P.2d 458, and cases cited therein).

The plaintiff next specifies as error the sustaining of the defendants' separate demurrers. This presents the real question for decision.

The plaintiff contends the amended petition alleged facts which constitute actionable negligence against both the defendants and did not show her to be guilty of contributory negligence or an...

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