Lucas v. City of Juneau

• Decision Date: 04 December 1958
• Docket Number: No. 7174-A.,7174-A.
• Parties: Lauren M. LUCAS, Plaintiff, v. CITY OF JUNEAU, a municipal corporation; and Sears, Roebuck and Company, a foreign corporation, Defendants.
• Court: U.S. District Court — District of Alaska

168 F. Supp. 195

Lauren M. LUCAS, Plaintiff, v. CITY OF JUNEAU, a municipal corporation; and Sears, Roebuck and Company, a foreign corporation, Defendants.

No. 7174-A.

District Court, Alaska, First Division, Juneau.

December 4, 1958.

Mildred R. Hermann, Juneau, Alaska, for plaintiff.

H. D. Stabler, Juneau, Alaska, for defendant City of Juneau.

Frederick O. Eastaugh, and Robert J. Annis, of Robertson, Monagle & Eastaugh, Juneau, Alaska, for defendant Sears, Roebuck & Co.

KELLY, District Judge.

The plaintiff has brought this suit to recover $90,000 in damages for personal injuries allegedly suffered from a fall in the defendant Sears, Roebuck and Company (hereinafter "Sears") store, and for the aggravation of those injuries due to the alleged negligence of the City of Juneau (hereinafter "City") in the operation of its ambulance service. The plaintiff seeks to hold the defendants jointly liable for the extent of his aggravated damages. The cause was tried without a jury.

The substance of the evidence in the instant case is this. The defendant store is but one of a chain operated throughout the United States, and is located in the downtown area of the defendant City. The testimony elicited during the course of the trial indicates that the plaintiff entered the defendant Sears' store on the day of October 2, 1954, and made several visits to the credit manager's office on the mezzanine floor of the store for the purpose of making business inquiries. On the occasion of his last visit in the late afternoon, the plaintiff engaged the credit manager in a brief conversation and then turned away from her office to descend to the main floor. Before reaching the stairway connecting the two floors, the plaintiff stepped on a loose object causing his legs to extend outward from his body. The plaintiff lost his balance and landed on his back. The mezzanine floor was well illuminated at the time of the accident. Although no one saw the plaintiff fall, the credit manager heard a "thump," and saw the plaintiff arise from the floor. The plaintiff informed the credit manager that he had slipped on a small stub of a pencil present on the floor a few feet distant from the steps, and handed her the stub pencil. The plaintiff exclaimed that he had been hurt as a result of the fall but refused immediate medical attention. The plaintiff then walked from the store to his car. Subsequently, the plaintiff was hospitalized for his injuries.

After a number of days of confinement in a Juneau hospital, the plaintiff deemed it advisable to depart for Seattle to obtain medical treatment at a Veterans Administration Hospital. Arrangements were made by the local Veterans Administration office for the plaintiff to depart by plane for Seattle, Washington. Since the plaintiff was not expected to be ambulance on the date of his departure, the defendant City was contacted to provide the necessary ambulance transportation of plaintiff to the airport some miles distant from the city. On the day of the plaintiff's Seattle flight, the ambulance arrived at the hospital to pick up the bedridden plaintiff, and proceeded from there in the direction of the airport. While driving the plaintiff to the airport, the ambulance driver suffered a sudden attack of unconsciousness. The ambulance veered from the highway and drove over rough ground, coming to a gradual halt. The plaintiff was jolted by the sudden shocks of the rough terrain, and his condition was aggravated.

The plaintiff apparently suffered from a long history of back disturbances and injuries prior to the dates of his fall in the defendant Sears' store and the accident in the city ambulance. Much testimony was introduced concerning the extent and seriousness of both plaintiff's new injuries and his pre-existing condition. Specifically, this testimony referred to injuries to the plaintiff's spine and other areas of his back.

As a basis of relief, the plaintiff alleges that the defendant Sears wrongfully and negligently permitted a loose object to be located on its floor, and that the defendant Sears should be held liable for resulting injuries from his fall, and for the aggravation of those injuries due to the ambulance mishap, flowing proximately from the original negligence of Sears.

The plaintiff further claims that the defendant City wrongfully, negligently and carelessly employed the ambulance driver in its services, thereby causing the plaintiff's condition to become aggravated.

There is no apparent conflict in court decisions in enunciating the general rule that a storekeeper is not an insurer of the safety of his customers. French v. Heibert, 1953, 175 Kan. 296, 262 P.2d 831; Landry v. News-Star-World Pub. Corp., La.App.1950, 46 So. 2d 140. But it cannot be disputed that under the circumstances presented here, the plaintiff was a business invitee to whom the defendant Sears owed a duty to exercise reasonable care in maintaining safe premises. Twine v. Norris Grain Co., Mo.App.1950, 226 S.W.2d 415; Feir v. Town & City of Hartford, 1954, 141 Conn. 459, 106 A.2d 723. However, the law makes it incumbent upon the plaintiff to prove that the defendant Sears has breached this duty, and that plaintiff has suffered injury flowing from this breach. Palmer v. Crafts, 1936, 16 Cal.App.2d 370, 60 P.2d 533.

As an offer of proof, the Court has been urged to accept the plaintiff's contention that since the object upon which he allegedly slipped was on the floor of the defendant's store, the doctrine of "res ipsa loquitur" is applicable and the defendant should be presumed to be negligent. The plaintiff further maintains that in failing to rebut this presumption of negligence, the defendant should be held liable to the full extent of the plaintiff's injuries. However, this doctrine upon which the plaintiff relies is applicable only where an instrumentality shown to be under the exclusive control of the defendant has produced some injury, and the injury that has resulted is normally of the type that would not have occurred but for some negligence of the one in whose hands control of the instrumentality rests. J. C. Penney Company v. Livingston, Ky. 1954, 271 S.W.2d 906; Barton v. Armstrong, 1946, 237 Iowa 734, 23 N.W.2d 912. Although a storekeeper is obligated to exercise ordinary care to keep the premises reasonably safe for the protection of those patronizing his store, the mere proof of injury within the store does not raise an inference that the proprietor has control over a loose object causing injury within the store nor does it presume that he was negligent. In cases such as this, it is in most instances the question of control that is in dispute and the issue to be determined. For this reason, the Court is not inclined to view the doctrine of "res ipsa loquitur" as being properly invoked to raise a presumption of negligence under the circumstances presented here. Vaugh v. Montgomery Ward & Co., 1950, 95 Cal. App.2d 553, 213 P.2d 417; Sattler v. Great Atlantic & Pacific Tea Company, 1955, 18 F.R.D. 271.

In cases involving loose objects, the courts generally distinguish between the situations where the object causing injury was placed on the floor by the storekeeper or his servants, or placed there by some third person. In the former situation, if it is proved that the object causing injury was placed there by the employer or his servant, or that either was actually aware of its presence, a prima facie case of negligence would be established. J. C. Penney, Inc., v. Kellermeyer, 1939, 107 Ind.App. 253, 19 N. E.2d 882. However, the plaintiff has not sustained this burden. The object alleged to have caused the plaintiff's injury was a pencil in common use, but not of the type used by the employees of defendant Sears. No evidence whatsoever was introduced tending to prove to whom the pencil belonged, that it was placed or dropped in the aisle by one of the defendant store's employees, or that any employee had actual knowledge of its presence. It would be mere speculation for the Court to make these assumptions.

In the absence of the above proof, it was necessary for the plaintiff to establish, whether by circumstantial or direct evidence, that the object was in the aisle of the defendant's store for such a long period of time that the defendant could be said to have had constructive notice of its presence. Gargaro v. Kroger Grocery & Baking Co., 1938, 22 Tenn.App. 70, 118 S.W.2d 561. Lee v. Meier & Frank Co., Or.1941, 114 P.2d 136. Schmelzel v. Kroger Grocery & Baking Co., 1951, 342 Ill.App. 501, 96 N.E.2d 885. Messner v. Webb's City, Inc., Fla. 1952, 62 So.2d 66. Lindsay v. Eccles Hotel Company, 1955, 3 Utah 2d 364, 284 P.2d 477. Applying the well settled rule of these decisions to the evidence presented, the plaintiff has failed to prove that the defendant Sears was negligent. The object causing injury has been sufficiently identified as to its nature, and there can be little doubt that its presence as such on the floor of the store would tend to create a hazard as to customers. Yet there is no substantial evidence indicating that the object was in the aisle of the defendant store for any period of time other than for the moment it was stepped on by the plaintiff. From this circumstance alone, the Court would not be justified in inferring that the object had been there for such a period of time that, had the defendant Sears exercised reasonable care, it could have known of the presence of the object.

The plaintiff further alleges that the defendant failed to carefully inspect the aisles and keep them clear from objects that might cause injury. Liability is sought to be predicated on this proposition on the basis of evidence that the defendant store was swept once each morning and the accident occurred in the late afternoon. The plaintiff stresses with great emphasis a judicial pronouncement in Sears, Roebuck & Co. v. Peterson, 8 Cir., 1935, 76 F.2d 243, 247, wherein it was stated that:

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