McDonald v. Smitty's Super Valu, Inc.

• Decision Date: 21 June 1988
• Docket Number: CA-CIV,No. 1,1
• Citation: 757 P.2d 120,157 Ariz. 316
• Parties: Virginia L. McDONALD, Plaintiff-Appellant, v. SMITTY'S SUPER VALU, INC., a Delaware corporation, Defendant-Appellee. 9301.
• Court: Arizona Court of Appeals

Page 120

757 P.2d 120

157 Ariz. 316

Virginia L. McDONALD, Plaintiff-Appellant, v. SMITTY'S SUPER VALU, INC., a Delaware corporation, Defendant-Appellee.

No. 1 CA-CIV 9301.

Court of Appeals of Arizona Division 1, Department B.

June 21, 1988.

[157 Ariz. 317] Holloway & Thomas, P.C. by Paul W. Holloway, and Nicholas E. Vakula, Phoenix, for plaintiff-appellant.

Jennings, Strouss & Salmon by H. Christian Bode, and Jefferson L. Lankford, Phoenix, for defendant-appellee.

OPINION

FIDEL, Judge.

Plaintiff Virginia L. McDonald appeals from the trial court's dismissal by summary judgment of her claims of negligence against the defendant. The main issue on appeal is whether the trial court erroneously ruled the doctrine of res ipsa loquitur inapplicable.

Facts

The facts are undisputed. Plaintiff entered a store owned by defendant Smitty's Super Valu, Inc., on November 18, 1983, to drink a cup of coffee. She took a seat on a counter stool perched on a supporting pole. As she sat at the counter for fifteen or twenty minutes, she noticed nothing abnormal about the stool. Then, as she leaned against its backrest to seek the attention of a passing friend, her stool left its pole, casting her backward to the floor.

The Smitty's stools were installed in 1966 by Arizona Booth and Fixtures Mfg. Corp. However, some of Smitty's stools were removed for "reupholstery/repairs" by the M.W.M. Corporation in August and November of 1983, and Smitty's acknowledges that the plaintiff's stool was among them. Affidavits by two regular counter customers established the absence and return of plaintiff's stool shortly before the accident, suggesting that it was one of the November repair group. The record does not show what precisely caused the stool to fall.

Plaintiff filed suit against Smitty's, Arizona Booth Fixtures Mfg. Corp., and M.W.M. Corporation, asserting various counts of negligence and strict liability. Summary judgment was granted in favor of Arizona Booth, and plaintiff voluntarily dismissed her claims against M.W.M. Corporation, leaving Smitty's as the lone defendant.

Smitty's then sought summary judgment on all claims. Because plaintiff conceded her strict liability claim, we do not consider whether the lunch counter seller of a cup of coffee is strictly liable for providing an unsafe stool to drink it on. Plaintiff maintained the validity of her negligence claim, asserting as a material question of fact whether Smitty's knew or should have discovered the dangerous condition of the stool. Additionally, plaintiff invoked the doctrine of res ipsa loquitur as entitling her to submit her case to a jury in the absence of proof of the precise nature of that condition.

The trial court granted Smitty's motion, finding no evidence that Smitty's breached a duty to the plaintiff. Additionally, finding that Smitty's lacked exclusive control of the stool, the court ruled res ipsa loquitur inapplicable. The court stated:

[I]t appears clear that Smitty's did not have exclusive control over maintenance of the seating since M.W.M. Corporation did repair work on chairs during November 1983 before this incident occurred. Without exclusive control, the doctrine of res ipsa loquitur does not apply.

Plaintiff appeals from the trial court's dismissal of her negligence claim.

Duty

A person's status as invitee, licensee, or trespasser determines the duty of care a landowner owes him. Robles v. Severyn, 19 Ariz.App. 61, 63, 504 P.2d 1284, 1286 (1973). Plaintiff was a business invitee. An Arizona business owner owes its invitees a duty to maintain its premises in a reasonably safe manner. Nicoletti v. Westcor, 131 Ariz. 140, 142, 639 P.2d 330, 332 (1982). This duty entails reasonable inspection to discover dangerous conditions. Gee v. Salcido, 2 Ariz.App. 280, 282, 408 P.2d 42, 44 (1966). A proprietor has a greater duty to discover dangerous conditions than an invitee, who is entitled to assume that the premises are reasonably safe. Heth v. Del Webb's Highway Inn, 102 Ariz. 330, 333, 429 P.2d 442, 445 (1967); Glowacki v. A.J. Bayless Markets, 76 Ariz. 295, 306, 263 P.2d 799, 806 (1953).

Thus, Smitty's clearly owed a duty to the plaintiff. Smitty's argument to the contrary is an instance of confusing "the existence of a duty" with "specific details of conduct." Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985).

These details of conduct bear upon the issue of whether the defendant who does have a duty has breached the applicable standard of care and not whether such a standard of care exists in the first instance.

Id. We turn to the question whether the plaintiff's evidence raises a jury issue of defendant's breach of the applicable standard of care.

Breach

To establish a proprietor's liability for injuries arising from a dangerous condition of the premises, an invitee must prove either that the dangerous condition was caused or permitted to develop by persons for whom the proprietor was responsible or that the proprietor had actual or constructive knowledge of its existence. Notice is proven constructively by establishing that the condition existed long enough that, in the exercise of ordinary care, the defendant should have discovered and corrected it. Gee v. Salcido, 2 Ariz.App. at 282, 408 P.2d at 44. See also Tom v. S.S. Kresge Co., Inc., 130 Ariz. 30, 31, 633 P.2d 439, 440 (App.1981)

We do not consider whether plaintiff might dispense with proof of actual or constructive notice in this case, as plaintiff does not cast the argument in those terms. Instead, plaintiff first contends that evidence of the stool's absence for "reupholstery/repairs" not long before her fall supports the inference that Smitty's had actual knowledge of its dangerous condition.

We cannot agree. A stool can be repaired for cosmetic defects as well as to correct dangerous conditions. Only by conjecture could a factfinder leap from the fact that Smitty's sent a stool out for unspecified repairs or reupholstery to the inference that Smitty's knew that the stool had a defect that could injure its business invitees.

Plaintiff next contends that the evidence permits the conclusion that Smitty's should have discovered the dangerous condition of the stool. To advance that argument without evidence of the dangerous condition's precise nature or cause, plaintiff invokes the doctrine of res ipsa loquitur. We consider whether the trial court correctly found this an inappropriate case for the application of that doctrine.

Res Ipsa Loquitur

Res ipsa loquitur is simply a rule of circumstantial inference of responsibility for an injury. McKeever v. Phoenix Jewish Community Center, 92 Ariz. 121, 123, 374 P.2d 875, 877 (1962). Where the prerequisite conditions exist, an inference of a defendant's negligence arises. Capps v. American Airlines, 81 Ariz. 232, 234, 303 P.2d 717, 718 (1956). A plaintiff who successfully avails himself of the doctrine may reach a jury without direct proof of negligence. Prosser and Keeton, Law of Torts § 40 (5th ed. 1984). The conditions for the application of the doctrine have been frequently stated as follows:

(1) The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence;

(2) It must be caused by an agency or instrumentality within the exclusive control of defendant;

(3) It must not have been due to any voluntary ¹ action on the part of the plaintiff;

(4) Plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury.

See, e.g., Capps, 81 Ariz. at 234, 303 P.2d at 718.

Likelihood Of Negligence

The trial court in this case did not find the first element lacking; such a finding, if made, would have been wrong. "Seats designed for use by patrons of commercial establishments do not ordinarily collapse without negligence in their construction, maintenance, or use." Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 484, 247 P.2d 335, 337 (1952). See also Herries v. Bond Stores, Inc., 231 Mo.App. 1053, 1057, 84 S.W.2d 153, 155 (1935); Gow v. Multnomah Hotel, 191 Or. 45, 65, 224 P.2d 552, 560 (1950), amended, 191 Or. 45, 65, 228 P.2d 791 (1951); Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956); Pear v. Labiche's Inc., 301 So.2d 336 (La.1974); Gresham v. Stouffer Corp., 144 Ga.App. 553, 241 S.E.2d 451 (1978).

Smitty's argues that the plaintiff must rule out such alternative explanations as design defect, manufacturing defect, or metal fatigue before she is entitled to argue res ipsa loquitur. We disagree. If proof so precise were possible, res ipsa would serve little purpose. The law does not require a plaintiff to rule out every conceivable explanation other than negligence before resorting to that doctrine. In Gresham v. Stouffer, for example, the plaintiff, a restaurant customer, was entitled to argue res ipsa loquitur simply upon proving that the defendant furnished the chair she used, that "the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance" of the chair, and that the chair collapsed during her ordinary use. 144 Ga.App. at 554, 241 S.E.2d at 452. In Herries v. Bond Stores, the court likewise stressed that "defendant had the ownership, management and control of the chair, and had full opportunity to inspect the chair and ascertain its actual defective condition." The jury was entitled to infer that plaintiff's injury arose through negligent maintenance and inspection. 84 S.W.2d at 155.

We conclude that stools designed for the use of commercial patrons do not ordinarily separate and collapse "without negligence in their construction, maintenance, or use." Rose, 39 Cal.2d at 484, 247 P.2d at 337. Defendant does not claim that the plaintiff was responsible for the collapse of her stool. We turn to the issue of defendant's control.

Control

The trial court withheld the benefit of the res ipsa inference from plaintiff becaus...