Martin v. Safeway Stores Inc., 14492

• Decision Date: 20 June 1977
• Docket Number: No. 14492,14492
• Citation: 565 P.2d 1139
• Parties: Ernestina MARTIN, Plaintiff and Appellant, v. SAFEWAY STORES INCORPORATED, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1139

565 P.2d 1139

Ernestina MARTIN, Plaintiff and Appellant, v. SAFEWAY STORES INCORPORATED, Defendant and Respondent.

No. 14492.

Supreme Court of Utah.

June 20, 1977.

Mark S. Miner, Salt Lake City, for plaintiff and appellant.

Merlin R. Lybbert of Snow, Christensen & Martineau, Salt Lake City, for defendant and respondent.

SWAN, District Judge:

This is an action for personal injury brought by Ernestina Martin, the plaintiff and appellant herein, to recover damages for a broken leg resulting from a fall on a sidewalk leading from the parking lot of Safeway Stores to the main entrance of its grocery store. At the conclusion of the evidence Safeway Stores, Incorporated, the defendant and respondent herein, moved for a directed verdict which the trial court granted, and it is from that ruling that the appeal to this Court is taken.

It is uncontroverted that on January 13, 1975, at approximately 9:30 p. m., and after defendant's employees had closed the store for the day's business, the plaintiff and her husband, Abraham Martin, drove their car to defendant's grocery store and parked in the parking lot in a space adjoining the sidewalk that leads to the main entrance of the store. The plaintiff and her husband had been married in Mexico a few days before, and plaintiff's husband had brought plaintiff to his home in Salt Lake City and later had gone to the store intending to purchase some groceries.

The evidence shows that it had been snowing intermittently throughout the day and that the Safeway employees had shoveled the snow and cleaned and salted the sidewalk at 2:00 o'clock p. m. and again at 5:00 o'clock p. m. It was the practice of defendant's employees to keep the sidewalk as clean as possible to avoid water being tracked into the store that would later have to be mopped up.

After plaintiff's husband parked the car, the plaintiff got out on the passenger side in an area that was covered with snow and ice. She proceeded onto the sidewalk and toward the main entrance of the store. The evidence at trial was conflicting as to exactly where the plaintiff fell, but the evidence taken in the light most favorable to the plaintiff indicates that she fell at a place on the sidewalk where there was a slight spalling or flaking of the concrete. After she fell, the plaintiff's husband helped her back to the car and then went to the front door of the store which was locked. He got the attention of the defendant's inventory clerk and a customer who was still at the checkout counter and they went to the place where plaintiff had fallen and with the aid of a flashlight found an icy spot about twelve to fourteen inches in diameter. It was this spot of ice that plaintiff contends was the cause of plaintiff's fall and for which the defendant should be held liable.

This court has held that property owners are not insurers of the safety of those who come upon their property, even though they are business invitees. The liability of the owner of a store should be established only when the condition complained of has existed for a long enough time that the owner should have known about it and corrected it, or has had actual knowledge of the condition complained of. Here the plaintiff failed to produce any evidence to show that the danger had existed for any period of time prior to the accident. The evidence is without dispute that snow had fallen during the day, that employees of the defendant shoveled the walkway on two occasions and that the walk was salted on each occasion. Thereafter the sidewalk was wet but not icy, and the defendant's courtesy clerk testified that he had walked past the area where the accident occurred some twenty to thirty times and had observed it to be wet but had not observed the presence of any ice.

The plaintiff presented no evidence to show the temperature or when the freezing could have occurred, and the only reasonable inference that could be drawn from the evidence is that the ice formed at a time and place where it was not observed by defendant's employees or any customers, or that the freezing occurred after the store employees could reasonably have expected customers to come to the store. The plaintiff's husband testified that the ice was clear and was the same color as the sidewalk and could not be seen, and all of the other witnesses concurred in this observation.

The essential inquiry relating to defendant's negligence is whether the defendant's employees know, or in the exercise of ordinary care should have known, that a dangerous condition existed, and whether sufficient time elapsed thereafter that action could have been taken to correct the situation. Owners of stores, banks, office buildings, theaters or other buildings where the public is invited to come on business or...