Miller v. Payless Drug Stores of Wash., Inc., 36173

• Decision Date: 21 March 1963
• Docket Number: No. 36173,36173
• Parties: Elnora MILLER, a widow, Appellant, v. PAYLESS DRUG STORES OF WASHINGTON, INC., a corporation, Respondent.
• Court: Washington Supreme Court

Page 651

61 Wn.2d 651

379 P.2d 932

Elnora MILLER, a widow, Appellant, v. PAYLESS DRUG STORES OF WASHINGTON, INC., a corporation, Respondent.

No. 36173.

Supreme Court of Washington, Department 1.

March 21, 1963.

William C. Harrison, Spokane, for appellant.

MacGillivray, Jones, Schiffner & Clarke, Spokane, for respondent.

HALE, Judge.

Appellant, plaintiff below, brought an action for injuries sustained when she slipped and fell to the floor of defendant's store. At the close of the evidence, defendant challenged the sufficiency. The challenge was upheld, and judgment of dismissal accordingly entered. Plaintiff appeals.

At the time of the fall, appellant was a strong, active woman of 62 years of age and had been employed for many years as a practical nurse. She was, on this occasion, wearing a whipcord skirt and shoes which could readily be classified as 'sensible.' At least, no issue was made that the shoes were improper. The fall occurred when appellant was walking in the hardware department of respondent's store, in the basement. In that area, the floor was of concrete with an asphalt tile surface. Other than the slickness of the surface, no claim was made that the floor was faulty, uneven, irregular, or otherwise dangerous. Only one question arises in the case which requires an answer: Was there sufficient evidence to submit the facts to the jury?

That the learned trial judge sought earnestly to apply the law of this state to the case is clearly demonstrated in the ruling on the challenge in his oral opinion, which capably reviews the facts and the law. The opinion states as follows:

'Plaintiff's evidence must be accepted as true, and she must be given the benefit of all inferences which can reasonably be drawn therefrom. * * *

'Mrs. Miller testified, in substance, merely that she walked into the Payless Drugstore, slipped and fell in the asile and that she left a mark on the floor some 15 inches long, and of the estimated depth of the thickness of a fingernail. She said the floor looked slippery, and that in her opinion there was an excess of wax on the floor.

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'I think it is important to consider not only what is in evidence but what is not. There is no testimony that this particular product which was used was an improper product, there is no testimony that the manner of applying it was improper, there is no testimony of any unusual localized accumulation of material, whether it was wax or a polyethylene compound, there is no testimony that others who used the floor fell immediately before or after Mrs. Miller fell.

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'* * * There is no presumption of negligence arising from the fact that somebody falls on a slippery floor, a floor made slippery by the application of wax or any other substance. In order for the plaintiff to recover in this case she has the burden of proving either that the product was improper, or that the manner of its use was improper.'

The trial judge made appropriate reference to the doctrines which govern the court's decision on conclusory motions. In ruling upon a challenge to the sufficiency of the evidence, a motion for a directed verdict, or a motion for judgment notwithstanding the verdict, no element of discretion is involved, and such motions can be granted only when it can be held as a matter of law that there is no evidence or reasonable inference therefrom to sustain a verdict for the opposing party. Lambert v. Smith, 54 Wash.2d 348, 340 P.2d 774; Williams v. Hofer, 30 Wash.2d 253, 191 P.2d 306.

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; Williams v. Hofer, supra; Music v. United Ins. Co., 59 Wash.2d 765, 370 P.2d 603.

Respondent relies largely upon the holdings expressed in Pement v. F. W. Woolworth Co., 53 Wash.2d 768, 337 P.2d 30, but the holding in that case clearly would not control the decision at bar. A precise allegation in the complaint there asserted that the fall was caused by the negligent application of a specific floor preparation, and the issue was joined by respondent's denial that this particular substance was either negligently applied or slippery in nature. The jury resolved this issue of fact in favor of the respondent store, and the decision on appeal turned largely on the propriety of an instruction which was given on unavoidable accident. We did, in that case, however, reassert the familiar rule and declare that negligence is not proven by simply showing that the floor has been waxed and as a result has become smooth or even slippery to a degree. See Kalinowski v. Y. W. C. A., 17 Wash.2d 380, 135 P.2d 852. This rule the trial judge sought to apply in the present instance. The Kalinowski case is hardly authority for the case at bar other than, of course, it too states the very general rule that negligence is not established alone from the fact that the floors have been waxed or are smooth or perhaps even slippery. In the Kalinowski case, the plaintiff had spent the evening dancing on a floor which she knew had been treated with a mixture of corn meal and a waxlike preparation designed to keep it smooth for dancing. There the plaintiff testified that she knew the substance would accumulate on the soles and heels of her shoes and that at the time she slipped and fell she was wearing two-inch heels upon which she knew there was an accumulation of this slippery substance. The net effect of the holding is that the defendant was not negligent in making its floors smooth for dancing purposes.

Our problem here is to ascertain whether the general rule, as expressed in Pement and Kalinowski 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.

Appellant testified as follows:

'A. * * * I was right even with the first aisle to my left * * * and my right foot just slipped out from under me. * * * I slid for 15 inches, and it showed a heavy mark where I had fell, and after the fall I was sitting in a chair that the clerk had given me, and I took my foot like this (indicating) and my foot would just slip from me just like that (indicating), just...