Miller v. Crown Mart, Inc.

• Decision Date: 03 April 1967
• Docket Number: No. 21317,21317
• Parties: Elta L. MILLER, Plaintiff in Error, v. CROWN MART, INC., Defendant in Error.
• Court: Colorado Supreme Court

Page 690

425 P.2d 690

162 Colo. 281

Elta L. MILLER, Plaintiff in Error, v. CROWN MART, INC., Defendant in Error.

No. 21317.

Supreme Court of Colorado, In Department.

April 3, 1967.

Laurence A. Ardell, Pueblo, for plaintiff in error.

Phelps, Fonda, Hays & Wills, Pueblo, for defendant in error.

McWILLIAMS, Justice.

This is a personal injury action arising out of a slip and fall. Upon trial, a jury returned a verdict in favor of Mrs. Elta Miller and against Crown Mart, Inc., in the sum of $2,500. Upon motion, the trial court entered judgment in favor of the defendant, Crown Mart, Inc., notwithstanding the aforementioned verdict. By the present writ of error Mrs. Miller now seeks reversal of the judgment thus entered.

In a nutshell, the central issue is whether the plaintiff, Mrs. Miller, made a Prima facie showing that the defendant, Crown Mart, Inc. had constructive notice that there was a handful of popcorn on its floor. In our view proof of this essential element is lacking. Hence, the action taken by the trial court in entering judgment for the defendant notwithstanding the jury's verdict is correct and the judgment should be upheld. This opinion might well end at this point. However, if our determination of this controversy is to have meaning, reference must be made to the facts.

Mrs. Miller, age 62, was a business invitee in the defendant's self-service discount shopping store. The store proper has a total floor space of some 72,000 feet. While shopping in the 'clothing area' in the store, Mrs. Miller testified that she slipped and fell to the floor as the result of stepping on some unpopped popcorn which she failed to see until after her fall, because the popcorn was in the 'shadow' of a merchandising table.

There is no evidence that any of the defendant's employees dropped this popcorn on the floor, or that any of them had Actual notice of any popcorn being on the floor of the store. As a matter of fact, though this is admittedly beside the precise point with which we are here concerned, several of the defendant's employees testified that not only did they Not see any popcorn on the floor at any time Before the fall, but that when they hurried to attend Mrs. Miller upon her fall, they did not see any popcorn Even then$

Assuming however, as we must, that there was popcorn on the floor, just who placed it there remains unknown. In this regard there was some evidence that as Mrs. Miller entered the store she noticed a mother with several small children exiting therefrom, and one or more of the children was observed holding a bag of popcorn. Whether one of them had previously spilled popcorn on the floor is not known.

Be that as it may, the plaintiff contends that even though she perhaps did not prove that any of the defendant's employees had Actual notice, she argues that nevertheless she did make a Prima facie showing that the defendant had Constructive notice of the popcorn on the floor. In thus asserting, plaintiff relies primarily on the following:

(1) the testimony of the plaintiff that for a period of three to four minutes immediately prior to her fall she had occasion to observe the general area where she subsequently fell, and that for this period of time no person was observed in that particular area;

(2) her testimony that after her fall she looked at the popcorn and that the popcorn appeared to her to have been previously 'walked in'; and

(3) her testimony that an employee of the defendant, who was some 10 to 14 feet away and who--while moving shopping baskets--was looking more or less in an opposite direction from the spot where she fell, nevertheless Could have espied, if he had looked in the proper direction, the popcorn, even though she did not, because his would have been a preferred line of vision.

The law on this particular subject of constructive notice is well-defined and in the instant case there is little dispute as to the applicable legal principles. The difficulty arises when these legal principles are sought to be applied to a particular factual situation.

A shopkeeper is not liable to his business invitee unless, among other things, he 'knew, or reasonably should have known, of the presence of the condition in time to prevent an accident, or warn of the danger.' Woolworth v. Peet, 132 Colo. 11, 284 P.2d 659. See also Sniezek v. Cimino, 146 Colo. 119, 360 P.2d 813 and King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006. The negligence of the shopkeeper occurs when, after notice, be it actual or constructive, he thereafter fails to correct the condition or warn of its existence.

Also, it has been said that though the length of time a dangerous condition must exist before the owner of the premises is to be charged with constructive knowledge of its existence varies according to the circumstances of the case, nevertheless the length of time for which the condition has existed is still one of the 'most important' factors to be considered in connection with the question of constructive notice. 65 C.J.S. Negligence § 63(54), pp....