Mahoney v. J. C. Penney Co.

• Citation: 1962 NMSC 86,71 N.M. 244,377 P.2d 663
• Decision Date: 26 June 1962
• Docket Number: No. 6846,6846
• Parties: Robert MAHONEY and Betty Mahoney, Plaintiffs-Appellants and Cross-Appellees, v. J. C. PENNEY COMPANY, a corporation, Defendant-Appellee and Cross-Appellant.
• Court: Supreme Court of New Mexico

Page 663

377 P.2d 663

71 N.M. 244

Robert MAHONEY and Betty Mahoney, Plaintiffs-Appellants and Cross-Appellees, v. J. C. PENNEY COMPANY, a corporation, Defendant-Appellee and Cross-Appellant.

No. 6846.

Supreme Court of New Mexico.

June 26, 1962.

Rehearing Denied Jan. 28, 1963.

Bean & Snead, Roswell, for appellants and cross-appellees.

Hervey, Dow & Hinkle, S. B. Christy IV, Roswell, for appellee and cross-appellant.

CHAVEZ, Justice.

Plaintiffs-appellants, Robert Mahoney and Betty Mahoney, his wife, filed suit in two causes of action against defendant-appellee, J. C. Penney Company, for damages resulting from injuries to Betty Mahoney, sustained from a fall in defendant's store. The complaint alleged that the fall resulted from the negligent acts or omissions on the part of defendant, in that it maintained a stairway in its Roswell store for the use of business invitees; that on the occasion in question it failed to keep the same reasonably clean and failed to maintain the same in a safe condition; that said condition was known, or should have been known, to defendant at the time in question. Defendant denied the material allegations of the complaint and to each cause of action set forth a defense of contributory negligence on the part of plaintiff, Betty Mahoney. A further allegation was made by amended complaint that the premises were under defendant's exclusive control and that the accident would not have happened without an absence of due care. The amended complaint was deemed denied on the basis of defendant's original answer.

The cause was tried to a jury and evidence introduced by plaintiffs. At the close of plaintiffs' case, defendant moved for a directed verdict. The trial court withheld its ruling upon said motion and defendant rested without introducing any evidence. A jury verdict was returned in favor of plaintiffs; Robert Mahoney being awarded the sum of $7500 for past and future medical expenses and for loss of his wife's services and companionship. Plaintiff, Betty Mahoney, was awarded the sum of $12,840 for physical disablement, pain and suffering.

Thereafter defendant filed a motion for judgment notwithstanding the verdict and alternatively for a new trial. Upon hearing, the trial court entered an order granting the motion for judgment notwithstanding the verdict and denied the application of defendant for a new trial. It is from this order setting aside the jury verdict that plaintiffs appeal. The parties will be referred to as they appeared in the court below.

Defendant, in the event this court should determine that the judgment notwithstanding the verdict was erroneously granted, cross-appeals from the denial of its alternative motion for a new trial, urging specifically in its brief that the jury verdict was against the weight of the evidence and that the trial court committed prejudicial error in submitting instruction No. 3 to the jury. This instruction reads as follows:

'You are instructed that a temporary slippery or sticky place upon the floor of a business establishment is not necessarily negligence, unless it appears that the condition had existed for a time sufficient to permit the personnel of the establishment to become aware of it. You are further instructed, however, that even though the condition was temporary, if the condition was a recurring one, and the personnel of the establishment had knowledge of the fact that the condition recurred from time to time, or should by the exercise of reasonable care have had knowledge of the condition from time to time, then, and in that event, you are permitted to infer that the existence of the condition itself was negligence, even though the defendant lacked knowledge of the particular condition here in question at the time of the occurrence alleged.

'In determining the issue of negligence in this cause, therefore, you will not find in the cause that negligence was present and attributable to the defendant by the mere fact that a condition may have existed at the time of the alleged fall, unless you further find that the condition of the stairway was one which recurred from time to time, and was one of which the defendant through its agents and employees knew would recur, or by the exercise of reasonable care should have known would recur, in which event you may infer that the defendant was negligent in this cause, not because of the alleged spot in question, but by reason of a failure to exercise reasonable care to remedy or prevent the recurrence of the said condition, if you find the same to have existed.'

The testimony shows that the accident occurred in defendant's store about 12:00 o'clock noon on Saturday, May 9, 1959, when plaintiff, Betty Mahoney, accompanied by her thirteen-year-old daughter, entered defendant's store and proceeded from the main floor up the stairway and onto the second floor, looking for some type of material. Failing to find the material she desired, she came down the stairway onto a small landing and started from the landing down two steps to the main floor of the store when her foot stuck on some 'sticky substance' on the steps and she fell forward to the main floor of the store, catching herself on her hands with her legs extending back onto the steps. She saw a sticky substance on the steps after the fall but did not examine it and was uncertain as to its exact location at the time of the fall.

Defendant's attorney, in his oral argument before this court, summed up the facts as follows:

'Mr. Sneed [plaintiffs' attorney] has initially argued that there was an accident. We don't deny it. He states that either proximately caused--and we say, maybe, factually caused--it is immaterial. Mrs. Mahoney did fall on something, and as a result of that the lady is injured. I know Mrs. Mahoney personally; she is a very honest witness. And the lady is hurt. We do not deny it. Next, he says that there was a dangerous condition on that stairway. Now, gentlemen, I wouldn't argue to you that there wasn't some sticky substance or gum or something on that stairway at the time Mrs. Mahoney fell. I am confident there was. And I certainly can understand, although I found no case on it, that gum or a sticky substance is a dangerous condition. Of course it is. We don't deny that. * * * We say, again, we admit the accident; we admit that that is the reason she was injured; we realize the gum was there. * * *'

All parties agree that the sticky substance was thrown on the stairway by another customer and not by one of defendant's employees. Plaintiffs concede that defendant had no actual knowledge of its presence and that constructive knowledge cannot be imputed to defendant solely by reason of its dirty, sticky appearance. It is not known when the gum was deposited on the stairs. It may have been only a few minutes before plaintiff descended them or it may have occurred early that Saturday morning when the store opened. Absent any other facts, it is clear that plaintiffs cannot recover. Nor are the parties in disagreement over the general principles governing a proprietor's liability to his invitees.

Plaintiffs contend, however, that there are certain additional facts in the record which distinguish this case and which would permit recovery, notwithstanding the fact that they cannot prove how long the particular piece of gum had remained on the stairs. These additional facts are disclosed by Mr. E. E. Cornelius, manager of defendant's store, who testified that he had been manager for six years; that the stairway in question was intended for the use of customers of the store and was the only access from the main floor to the balcony area; and that defendant was solely responsible for cleaning these stairs. He also testified as follows:

'Q. Have you yourself ever had occasion at anytime to inspect the aisles, the passage ways, the stairs, the platform, the steps up in the store in regard to their condition whether they were clean or not?

'A Yes, sir, daily.

'Q On any of those occasions on your inspections have you found deposits of gum on the steps, on the landing, and on the stairs?

'A Yes, sir.

'Q With reference to the date of May 9, 1959, [the date of the accident] prior to that date were you making such inspections?

'A Yes, sir.

'Q And on those occasions did you find gum or deposits of gum or other material on the steps?

'A Yes, sir.

'Q On more than one occasion?

'A Yes, sir.

'Q Would you say that was a daily occurrence?

'A Not during my inspections. Ordinarily they are cleaned, the whole store is cleaned before I would inspect it. I mean, any gum I might find or trash would be accumulated throughout the day.

'Q Did you inspect the store from time to time on a Saturday?

'A Yes, sir.

'Q I mean the stairs?

'A Yes, sir.

'Q Is the condition any worse on Saturday than any other day?

'A I think the general condition of the store is worse on Saturday, yes, sir.

'Q Is that by reason of the fact I presume you have more traffic on Saturday?

'A Yes, sir.'

He then testified that pictures of the stairs taken some two weeks after the accident, and which showed either spots of gum or gum residue, were representative of the usual condition of the stairs.

From the above testimony, plaintiffs argue that defendant, through its agent, knew that customers deposited gum and other trash on the stairs, floors and aisles of the store--that this was not an isolated occurrence but a recurring condition. Further, although the actual cleaning and inspection routine is not clear from Mr. Cornelius' testimony, it would appear that the store was cleaned and inspected only once a day, either at night when the store closed or in the morning before it opened. That there was merely a daily cleaning and inspection is apparently conceded by defendant. Whether Mr. Cornelius inspected before or after the cleaning is not clear from his testimony, but defendant's answer brief indicates that the inspection was after the cleaning to see that it...