Morris v. King Cole Stores Inc.

• Decision Date: 03 January 1946
• Citation: 132 Conn. 489,45 A.2d 710
• Court: Connecticut Supreme Court
• Parties: MORRIS v. KING COLE STORES, Inc., et al.

132 Conn. 489

45 A.2d 710

MORRIS

v.KING COLE STORES, Inc., et al.

Supreme Court of Errors of Connecticut.

Jan. 3, 1946.

Appeal from Superior Court, Hartford County; Alcorn, Judge.

Action by Nathan Morris against King Cole Stores, Incorporated, and others to recover for injuries alleged to have been caused by negligence of defendants in maintaining a slippery entrance way on defendants' premises. The court directed a verdict for defendants and, from a judgment entered thereon, the plaintiff appeals.

Error and new trial ordered.

DICKENSON, J., dissenting.

Morton E. Cole, of Hartford (Cyril Cole and Israel Libby, both of Hartford, on the brief), for appellant (plaintiff).

William H. Tribou, of Hartford, for appellee (defendant King Cole Stores, Inc.)

DeLancey Pelgrift, of Hartford, for appellee (defendant Good Fruits, Inc.)

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The plaintiff brought this action to recover damages resulting from a fall on the defendants' premises claimed to be due to the slippery condition of an entranceway. The trial court directed a verdict for the defendants and denied a motion to set it aside, and the plaintiff appealed.

In testing the correctness of a directed verdict for the defendant, the evidence must be considered in that aspect most favorable to the plaintiff. Lesser v. Bridgeport-City Trust Co., 124 Conn. 59; 61, 198 A. 252, 123 A.L.R. 687; Sedita v. Steinberg, 105 Conn. 1, 5, 134 A. 243, 49 A.L.R. 154. The jury could reasonably have found the following facts: The defendant King Cole Stores, Inc., conducted a large market on Main Street in New Britain. It leased a portion of the store to the defendant Good Fruits, Inc., which, as concessionaire, was engaged in the business of selling fruits and vegetables from stands located within the store and on the areaway at and near the entrance vestibule. At about noon on a business day the plaintiff had walked across the sidewalk to a point near the store entrance and had stopped to look at a display of strawberries and lettuce on an open stand. As he stood there, about a foot from the stand, an employee who worked in the fruit and vegetable department came out to the stand. The plaintiff started into the store but almost immediately slipped and fell. The employee picked him up. The plaintiff then noticed on the floor of the entrance ‘a lot of sort of crushed strawberries, and it looked like lettuce leaves, all spread out, kind of dirty.’ He saw a slide mark a foot long on the floor of the entranceway where his foot slipped and slid out, and at the beginning of the mark some lettuce and strawberries. He noticed on his heel a piece of lettuce, hanging off, and some crushed strawberries. Half of the lettuce leaf was on his heel and the half that remained on the glass floor was not loose but was stuck to the floor. When asked to describe the appearance of the lettuce on the floor he said, ‘It was dirty and it looked as though several people stepped on it before.’ The lettuce and the strawberries ‘looked as if they were crushed. They lay flat and they were dirty.’

It is a familiar rule that the landlord is under a duty to use reasonable care to keep those parts of his building which are under his control in a reasonably safe condition and that if he fails in that duty and has actual or constructive notice of the defect in time to remedy it an injured plaintiff who is himself in the exercise of due care can recover. Smeriglio v. Connecticut Savings Bank, 129 Conn. 461, 462, 29 A.2d 443. The defendants do not claim that the floor was reasonably safe or that the plaintiff was guilty of contributory negligence.

The sole issue is whether the jury could have properly found that the defendants had notice of the defect in time to remedy it. The plaintiff claims that the defendants had actual notice because an employee had ‘a few minutes previously’ passed over the very spot and could reasonably be expected to have seen the debris in time to brush it aside. The evidence is that at the very moment the employee came out the plaintiff started into the store. There is no testimony that the employee saw anything on the floor, and no reasonable inference could be drawn that he should have seen the defect in time to remedy it. A further claim is that as the stand contained strawberries and lettuce and the plaintiff's fall occurred in proximity to it the jury could reasonably infer that the foreign substance came from the stand and was dropped on the floor by an employee, in which event the defendants would have notice through the employee. This would be pure speculation, for it may have been brushed off by a customer or dropped by him after he had made a purchase inside the store or at this outside stand.

The controlling question is that of constructive notice: Whether the condition had existed for such a length of time that the defendants' employees should, in the exercise of due care, have discovered it in time to have remedied it. O'Brien v. H. L. Green Co., 128 Conn. 68, 69, 20 A.2d 411. There is no direct evidence as to the length of time the defect had existed, and therefore the claim is that from the evidence concerning the condition of the substance that it was dirty and ‘looked as though several people stepped on it before,’ and that the lettuce stuck to the floor-the jury could reasonably find constructive notice.

In Hudson v. F. W. Woolworth Co., 275 Mass. 469, 176 N.E. 188, 189, there was evidence that where the plaintiff fell there was a piece of candy on the floor, ‘all heel marks,’ ‘all dirty and grimy,’ ‘all flattened out,’ ‘a number of heel marks in it.’ The candy was of a kind sold in the store. The court held that the evidence of the appearance of the candy and its sticking to the floor, and of the appearance of the floor under and around it, warranted a finding that the candy had been there such a period of time that in the exercise of reasonable care to keep the premises in safe condition for use by customers the...