Lopp v. First Nat. Bank

• Decision Date: 26 November 1935
• Citation: 151 Or. 634,51 P.2d 261
• Parties: LOPP v. FIRST NAT. BANK OF PORTLAND.
• Court: Oregon Supreme Court

51 P.2d 261

151 Or. 634

LOPP v. FIRST NAT. BANK OF PORTLAND.

Supreme Court of Oregon

November 26, 1935

En Banc.

Appeal from Circuit Court, Multnomah County; John P. Winter, Judge.

Action by Margaret Lopp against the First National Bank of Portland. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

BELT and RAND, JJ., dissenting.

Paul R. Harris, of Portland (Davis & Harris, C. W Robison, and Charles J. Stocklen, all of Portland, on the brief), for appellant.

Lamar Tooze, of Portland (Cake & Cake and Jaureguy & Tooze, all of Portland, on the brief), for respondent.

CAMPBELL Chief Justice.

This is an action to recover damages for personal injuries claimed to have been sustained through the negligent acts of defendant.

Plaintiff alleges, in effect, that defendant is a banking corporation doing business in a certain building in Portland, Or. This allegation is admitted by defendant. The gist of plaintiff's complaint is that on March 28, 1934, she went into the defendant bank to transact some business and while walking across the floor she slipped and fell, sustaining some injury; that the injury was caused by the negligence of defendant in the following particulars:

"(a) That defendant maintained said lobby in a dangerous and slippery condition by allowing quantities of water and a muddy pasty substance to accumulate thereon, which resulted in said floor being in a hazardous, slick and slippery condition;

"(b) That defendant carelessly and negligently failed to warn persons, and in particular the plaintiff, in making use of said lobby, of the unusual, hazardous and slippery condition thereof; ***

"(d) That said defendant, at said time and place, carelessly and negligently failed to remove the water from said floor by mopping or by any other means, and as a result allowed the same to remain in a hazardous, slick and slippery condition;

"(e) That defendant carelessly and negligently failed and neglected to cover said floor with some form of matting to prevent the same from becoming slick and slippery during the rainy season of the year."

She further alleges the extent of her injuries and her damages.

Defendant filed an answer which amounted to a general denial of negligence on its part, but admitted that plaintiff was upon the premises the day in question, and that she fell sustaining some minor injuries. Then, for an affirmative defense, alleged in effect: That whatever injuries plaintiff sustained by her fall in the lobby of the bank were caused by reason of her own negligent acts in the following particulars:

"(a) That at the time of and immediately prior to said fall the plaintiff was negligently, carelessly and recklessly walking over said lobby in a rapid and hurried manner;

"(b) That at the time of and immediately prior to said fall the plaintiff negligently, carelessly and recklessly was walking over said lobby without paying proper or any attention at all to how or where she was placing her feet;

"(c) That at the time of and immediately prior to said fall the plaintiff was negligently, carelessly and recklessly walking over said lobby without keeping a proper or any lookout at all for the purpose of observing the character and condition of the floor of said lobby."

The new matter in the answer was denied. The cause was tried to a jury. At the close of plaintiff's case in chief defendant moved for an involuntary nonsuit against plaintiff which was granted by the court. Plaintiff appeals.

The questions presented by the appeal are: Did the plaintiff produce any competent evidence tending to show that the injury she sustained was caused by one or more of the alleged acts of negligence on the part of defendant? Does the testimony that she produced show that she was guilty of contributory negligence or of any of the negligent acts alleged in the answer?

The evidence tends to show that plaintiff, a woman of thirty-seven years of age, and an artist by profession, went into the bank on the day of the accident for the purpose of transacting business. She had been a customer (or I believe they now are called clients) of the bank for several years and was familiar with the interior arrangement and floor of the lobby. The entrance to the building was through a swinging door at the street; then through a hall or vestibule within the building for about a distance of eight feet; then up a flight of stairs of seven steps, a distance of about six feet, then on the same level as the lobby for a distance of six feet and through another swinging door into the lobby. The floor of the vestibule and the steps of the stairs were covered with a perforated rubber matting. She testified that she walked a few steps beyond the door into the lobby when she slipped and fell. This would make a distance of about twenty-four feet longitudinally, from the street entrance to the place where she fell. The record does not disclose the difference in elevation between the vestibule floor and the lobby floor.

The plaintiff's testimony further shows that on the day of the accident there was a heavy downpour of rain which had subsided "some little time before" she entered the building, and that at the time of her entrance there was what she called a "drizzle." She entered the building about 3 o'clock in the afternoon. As she entered the bank lobby, she "glanced at the floor and then glanced up to find a desk." There were other people in the lobby going to and fro. "There was one man in particular that I was passing and I angled a little bit to the right, and just about that time, I slipped on something slippery and my feet went completely from under me and I fell with my weight on my right arm and right hip. I put my arm back to keep myself from falling flat." Her feet went out in front of her. She looked at her hand before getting up, and "I noticed that there was a pasty, muddy water all over my hands and my stockings were wet and the dress from the hem of the skirt to the hip was wet." The manager of the bank assisted her to get up, saying to her at the time: "I am sorry, you have taken an awful fall. I told them to clean that up and they haven't done it."

She further testified that there was large quantities of the pasty substance on the floor, and it was "a muddy paste, a slimy muddy paste."

She was asked on cross-examination: "Q. When you looked down at the floor, did you notice that dirty water on the floor?" She answered: "No, I didn't."

The brief of appellant, as well as that of respondent, cite many cases regarding the duty of the owner or occupier of a business building in relation to the patrons, customers, or clients of such business who have occasion to enter the building in the transaction of business. We have carefully examined these cases and have no quarrel regarding the principles therein announced when applied to the particular facts therein stated.

The general principle on which they all agree is to the effect: That it is the duty of one who conducts a business in a building, to which the public is invited, to maintain such building in a reasonable condition of safety. This duty extends to keeping the floor ordinarily safe to walk upon. If, through some unforeseen cause, a hazardous condition is created, the landlord should have a reasonable time after notice, actual or constructive, of the defect, in which to correct it. The patrons of the business having occasion to enter the building have a right to assume that this duty has been complied with or discharged, notwithstanding that the condition of the floor could have been seen if the patron "exercised a reasonable alertness." To excuse the landlord on this ground, the condition of the floor must have been such that the customer of "ordinary alertness" would be put on notice that the condition was such as to make it hazardous to walk upon the floor. This does not conflict with the principles laid down in Lyons v. Lich, 145 Or. 606, 28 P.2d 872.

The plaintiff went into the building of defendant for a legitimate purpose; she slipped and fell on the floor and sustained injury. The floor was not made of the ordinary flooring material, but was made of marble, slippery when wet. On a rainy day, the customers might have carried more or less water into the bank on their shoes and umbrellas in a sufficient quantity to wet a considerable portion of the floor space utilized by them; but there is no evidence to that effect in this case, nor was there any allegations in the pleadings that rainwater was so carried in. Assuming, for the sake of the argument, that the water on the floor had been so carried in, although the place where the plaintiff fell was more than twenty feet from the entrance and up a flight of steps, defendant knew that this condition existed and it was its duty to provide against it. We have no right to assume that the "pasty, muddy water," described by plaintiff as being on the floor, was rainwater carried in by the customer's shoes and umbrellas or otherwise.

It was not necessary to have some one mop up after each customer who entered. There are many other ways by which the floor could have been made safe for the patrons. But even if we should accept the position that defendant should have a reasonable time after knowledge of the slippery condition of the floor, to remedy it, the language of the manager of defendant as he assisted plaintiff to her feet, "I told them to clean that up and they haven't done it," is quite susceptible of being construed as meaning that there had been sufficient time, before the accident, to have complied with the order. It showed a knowledge on the manager's part of the dangerous condition of the floor. There is no evidence that warning had been given to the...