Messina v. Rhodes Co.

• Decision Date: 30 September 1965
• Docket Number: No. 37539,37539
• Citation: 67 Wn.2d 19,406 P.2d 312
• Court: Washington Supreme Court
• Parties: Mary MESSINA and Fisher Messina, husband and wife, Appellants, v. RHODES COMPANY, a Washington corporation, and the Western Department Stores, a California corporation, Respondents.

Page 19

67 Wn.2d 19

406 P.2d 312

Mary MESSINA and Fisher Messina, husband and wife, Appellants, v. RHODES COMPANY, a Washington corporation, and the Western

Department Stores, a California corporation, Respondents.

No. 37539.

Supreme Court of Washington, Department 2.

Sept. 30, 1965.

Burkey, Marsico & Rovai, Robert L. Rovai, Tacoma, for appellants.

Williams, Lanza, Kastner & Gibbs, James A. Noe, Seattle, for respondents.

DONWORTH, Judge.

This is an appeal from a judgment of dismissal entered after sustaining defendants' challenge to the sufficiency of the plaintiffs' evidence interposed at the end of plaintiffs' case.

The trial court also denied plaintiffs' motion for a new trial. The judgment stated as the court's reasons for dismissal that it had 'ruled as a matter of law' that

plaintiffs did not produce substantial evidence to support their claim, and in addition, and in any event, the plaintiff wife was contributorily negligent as a matter of law * * *.

The action was brought to recover for injuries sustained by the plaintiff wife (herein referred to as appellant) when she slipped and fell on a wet floor while shopping in Rhodes department store in Tacoma, which is owned and operated by respondents. In their answer, respondents admitted that appellant entered their place of business and fell near the main entrance, but denied the other allegations of the complaint. As affirmative defenses, respondents alleged that (1) appellant had assumed the risk involved, and (2) any injuries sustained by appellant were proximately caused or contributed to by her own negligence.

The case was tried before the court sitting with a jury. As above stated, the trial court ruled that appellant had failed to establish a prima facie case of negligence on the part of respondents, and, in addition, that appellant was contributorially negligent as a matter of law.

With regard to cases which are dismissed at the close of the plaintiff's evidence on the grounds above stated, the applicable rule (which has been many times stated by this court) was applied in Miller v. Payless Drug Stores, 61 Wash.2d 651, 653, 379 P.2d 932 (1963). We there said:

A motion for nonsuit admits the truth of the evidence, and all inferences arising therefrom, of the party against whom the motion is made. It requires that the evidence be interpreted most strongly against the moving party and most favorably to the opposing party. It is only when the court can say that there is no evidence at all to support the plaintiff's claim that the motion can be granted. Lambert v. Smith, supra (54 Wash.2d 348, 340 P.2d 774); Williams v. Hofer, supra (30 Wash.2d 253, 191 P.2d 306); Music v. United Ins. Co., 59 Wash.2d 765, 370 P.2d 603.

The Miller case involved a shopper who fell while in the respondent's store, allegedly because the surface coating applied to the floor had made it slippery. The trial court had sustained a challenge to the plaintiff's evidence. In reversing the trial court, we stated the problem as follows Our problem here is to ascertain whether the general rule, as expressed in Pement (53 Wash.2d 768, 337 P.2d 30) and Kalinowski (17 Wash.2d 380, 135 P.2d 852) and a host of other cases therein cited, took the case from the jury. Our inquiry is directed to find an answer to this question: Did the appellant submit evidence from which a jury could reasonably infer that the surface coating on the floor had been either negligently applied or that the floor was smooth to a degree rendering it dangerous to business invitees?

Recourse to the testimony itself gives us the best answer.

We must, therefore, examine appellant's evidence in this case in order to determine whether, admitting its truth and drawing all favorable inferences arising therefrom, it was sufficient so that a jury could reasonably find that respondents were negligent in permitting the floor of the store to become covered with an unusual amount of a foreign substance, to wit, dirt, sand, and water which was brought in by other shoppers on a very rainy day.

The testimony of appellant and her three witnesses was in substance as stated below.

Appellant testified that she was wearing a pair of nurse's shoes with low heels when she was shopping in respondents' store. Her 14-year-old daughter was with her. They entered the store in the late afternoon on December 22, 1962. After going to other parts of the store, they went to the blouse department, which is between the escalator and the main entrance to the store. After looking at blouses on the racks for five or ten minutes, they decided to leave and go to another store (which is north of Rhodes) to shop.

Appellant's testimony as to her actions at the time she fell was as follows:

A. And as we started to walk away from the blouse racks, we walked a few feet and I noticed it was raining quite hard, so I thought, 'Well, I think I'll go through the men's department, and look at a sweater, at some sweaters.' I thought maybe I could possibly pick one up as a last-minute gift for my oldest son. Q. Which way is the men's department? A. The men's department is north. Q. Did you notice anything unusual about the floor that particular day, at or near the blouse department? A. I noticed there was quite a bit of water there, uh, you know, puddles of water, people walking in and tracking in water, and mud, off their shoes. I noticed it was pretty wet. I was trying to be careful. Ordinarily, you just don't step in a puddle of water just like you would walk on the dry floor. Q. Could you tell us the condition of the floor, as opposed to just puddles, what was on the floor? A. It looked just muddy-like, just like, like, dirt off people's shoes, you know how. Well, if the women on the jury--I know women know when they scrub a floor, if somebody steps in it, it leaves marks. This was awful kind of muddy-like. Muddy marks. It was all kind of dirty water. Q. Did you see this before you fell? A. Yes. Q. And did it look like it had been mopped? A. No. Q. In the ten minutes you were around there, did you see anyone mopping the floor? A. No, I did not. Q. You did not? Did the condition increase or decrease while you were there, as far as the condition of the floor? A. Well, that, I don't remember noticing that. Q. Did any of the clerks tell you to look out for the condition of the floor? A. No. Q. Did you see any mop around? A. No. Q. Did you see any towels around? A. No. Q. Were there people walking in and out of this area? A. Yes, there were quite a few people because it was late Friday afternoon, and a lot of last-minute shoppers. Q. Now, Mrs. Messina, could you relate to us what you did when you decided to go back through the men's store? A. What do you mean? Q. How far did you get near the front entrance, or near the foyer? A. Well, I didn't get too far from the blouse rack, because you could see from where the blouses where I was standing, I could see it was raining outside, I could see people coming in, I could see they were all wet. It was raining quite hard, and I didn't get as far as the entrance. You could see through the glass doors that it was raining real hard. Q. Now, did you walk towards the entrance? A. I took a few feet towards the entrance, yes. Q. You mean a few steps? A. Excuse me. Q. Okay. Then what did you do? A. Then I thought, well, I'll go over into the men's department and then go out that door. As long as I was going to the men's department, I thought I'd look at the sweaters. As I turned, the next thing I knew my feet went out from under me and I fell. Q. Let's stop right there. Did you trip over your own feet? A. Oh, no. Q. Could you tell us what happened then? A. Well, I just kind of just turned, naturally, and the floor was so wet, and it was slippery. I could feel that I was going to fall just the second I did, because the floor was slippery, and I just--my feel--well, my right foot first, went right down. Q. Did that go down, or out from under you? A. Well, it went from under me. Q. What were your reactions, if any? A. The first thing I thought of was trying to get hold of something, and the blouse rack happened to be close by. I grabbed hold of the crossbar. In the picture, it doesn't show a crossbar in that particular picture, but there was a crossbar I managed to get hold of. I thought it would break my fall, but I couldn't stop myself from falling, and I just fell. Q. Did your body twist? A. Yes, I just wrenched my whole body when I grabbed the crossbar.

On cross-examination, she stated:

Q. Now, as I understand you testimony, Mrs. Messina, you turned away from the blouse bar and walked toward the entrance, and that you saw the condition of the floor, and you were trying to be careful at that point? A. Well, I wasn't paying attention to the floor at that time, as much as I was concerned about the rain outside. Q. And you turned around and took a few steps back, and fell? A. A few steps forward. Q. I mean, a few steps after you turned around back toward the other entrance? A. Yes, yes.

Appellant called as a witness one of respondents' maintenance employees and interrogated him regarding the care of the floors in the store. He testified that he (and apparently one other maintenance employee) put down rubber mats about eight feet long and three feet wide at all four store entrances during the rainy season. These extended about six feet into the interior of the store. He said: 'We check the floors for anything wrong.' He further stated that they always check the entrances when it has been raining and mop it up if there is any water. That was one of the witness' duties. There was another employee who was also assigned to this work. When it is raining hard, he testified that they would watch it closely--maybe every hour. They used regular janitor's mops to mop up the floor because it gets a little wet and probably a little slippery. The composition of the floor is like asphalt tile. The witness denied any personal...