Long v. Smith Food King Store, 13252

• Decision Date: 04 October 1973
• Docket Number: No. 13252,13252
• Citation: 531 P.2d 360
• Parties: George A. LONG, Plaintiff and Appellant, v. SMITH FOOD KING STORE, a Utah Corporation, and Cream O'Weber Dairy, a Utah Corporation, Defendants and Respondents.
• Court: Utah Supreme Court

Page 360

531 P.2d 360

George A. LONG, Plaintiff and Appellant, v. SMITH FOOD KING STORE, a Utah Corporation, and Cream O'Weber Dairy, a Utah Corporation, Defendants and Respondents.

No. 13252.

Supreme Court of Utah.

Oct. 4, 1973.

Pete N. Vlahos of Vlahos & Gale, Ogden, for plaintiff and appellant.

Blaine V. Glasmann, Jr., of Young, Thatcher & Glasmann, Ogden, for Smith Food King Store.

Leonard H. Russon of Hanson, Brandt & Wadsworth, Salt Lake City, for Cream O'Weber Dairy.

CROCKETT, Justice.

Plaintiff, George A. Long, sued for injuries suffered when he slipped and fell on a piece of pumpkin pie on the floor of defendant's store at Washington Terrace in South Ogden. On the basis of the pleadings and depositions, the court granted defendant's motion for summary judgment on the ground that upon the undisputed facts the plaintiff could show no basis for recovery. Plaintiff appeals, arguing that there are disputed issues of fact which if resolved in his favor would entitle him to recover.

On the evening of November 26, 1969, the defendant's supermarket was giving away small samples (about one inch square) of pumpkin pie topped with whipped cream, which were supplied to codefendant, Cream O'Weber Dairy. An employee of the latter, Mrs. Lois Moss, set these samples on a tray and they were given or were available to customers. Plaintiff and his wife were shopping in the store when he slipped and fell on one of these pieces of pie in an aisle seven to ten feet away from the aisle where the samples were. Mrs. Moss states that she kept watch on the floor, but she did not see any pie or cream on it before the accident; and the store manager similarly so stated. There is no evidence that any store employee, or in fact that anyone else, saw anything of that nature on the floor prior to the accident. This includes the statements of both the plaintiff, his wife, and his attorney, that they did not know, nor know of anyone else who knew, that the pie was on the floor, how it got there, or how long it had been there.

The granting of defendant's motion for summary judgment was based upon the cases of Howard v. Auerbach Company, ¹ Koer v. Mayfair Markets, ² and Lindsay v. Eccles Hotel Company. ³ The soundness of the basic rules reflected in those cases is not questioned here: that in order to impose liability for an injury resulting from some foreign substance or defective condition it must have existed for such time and manner that in due care the defendant either knew or should have known, and remedied it; and the variant thereof, that if the condition or defect was created by the defendant himself or his agents or employees, the notice requirement does not apply. ⁴

Plaintiff argues that this case is distinguishable from those cited above and should not be governed by the stated rules. He asserts that in addition to the question as to defendant's actual or constructive knowledge of the particular piece of pie on the floor, there is to be considered the antecedent condition: that the giving out of these samples of pie in that manner had inherent dangers because of the likelihood of its being dropped on the floor. These facts are pointed out as being significant: this was the day before Thanksgiving and therefore it was to be expected that the store would be filled with shoppers, as it was; that due to the unique character of pumpkin pie with whipped cream, it would be slippery and dangerous if dropped on the floor; and that from the foregoing circumstances it could reasonably be found that the dropping of pie and the injury to customers was something so likely to happen that it should have been foreseen, and that the standard of ordinary and reasonable care would require the defendant to exercise greater precautions than it did to protect its customers.

Plaintiff cites cases of a generally related character in support of his contention, e.g., Rhodes v. El Rancho Markets ⁵ where the plaintiff slipped on some lettuce. But there it was shown that lettuce was being uncrated all day long and it was common for loose leaves to be on the floor. El Grande Market No. 2 v. McAlpin ⁶ involved slipping on an apricot pit on a ramp. But there was affirmative testimony that apricot pits had been on the ramp for a substantial time (30 to 40 minutes to three hours). In Mahoney v. J. C. Penney Company ⁷ the fall was due to the presence of gum on stairway. But it was shown that there was gum on stairway right along, both before and after accident. In Jasko v. Woolworth ⁸ the facts were closer to our case. Pizza in wax wrappers was sold to be eaten on the premises. But it was shown that there was constant debris therefrom on the floor which was known to the manager.

We acknowledge that the plaintiff's...