Morton v. Lee, 40308

• Decision Date: 20 February 1969
• Docket Number: No. 40308,40308
• Citation: 75 Wn.2d 393,450 P.2d 957
• Parties: Chester W. MORTON and Helen Morton, his wife, Respondents, v. Art L. LEE and Jane Doe Lee, his wife, and E. H. Lee and Jane Doe Lee, his wife, dba Lee Bros. Thriftway, Appellants.
• Court: Washington Supreme Court

Page 393

75 Wn.2d 393

450 P.2d 957

Chester W. MORTON and Helen Morton, his wife, Respondents, v. Art L. LEE and Jane Doe Lee, his wife, and E. H. Lee and Jane Doe Lee, his wife, dba Lee Bros. Thriftway, Appellants.

No. 40308.

Supreme Court of Washington, Department 2.

Feb. 20, 1969.

Marrick, Burgess & Hofstedt, H. J. Merrick, Seattle, for appellants.

Cushman & Holt, R. M. Holt, Issaquah, for respondents.

POYHONEN, Judge. ^*

Respondents, Chester W. Morton and his wife, Helen, recovered damages from appellants for injuries sustained by Mrs. Morton in a fall at the entrance to, or on the sidewalk immediately adjacent to, the appellants' store.

Appellants have for many years owned and operated a food market at North Bend, Washington. The Mortons, an elderly retired couple, residents of Arizona, were motoring from Wenatchee to the Olympic Peninsula, accompanied by their 14 year old grandson, Mike Powell. On arriving at North Bend, the Mortons stopped at appellants' store, and Mrs. Morton and her grandson went into the store to pick up food items for lunch. After a lapse of approximately 3 to 4 minutes, Mr. Morton followed them into the market to ascertain if his help would be needed in carrying out the purchases. On being told that his assistance would not be needed, he returned to the automobile. About 5 minutes later, Mrs. Morton, exiting from the store, slipped and fell on the sidewalk.

There was evidence that Mrs. Morton stepped on an apricot on the walkway at or near the store entrance. She sustained a serious comminuted fracture of the femur of the left leg just above the knee.

Appellants made seven assignments of error. Our disposition of the case requires a discussion of three of them: (1) That the court erred in not sustaining a challenge to the sufficiency of the respondents' evidence at the close of their case; (2) That the court erred in ruling that, as a matter of law, Mr. Morton was not guilty of contributory negligence; and (3) That the court erred in failing to give appellants' proposed instruction on the duty of a storekeeper to his business invitees.

The issue of contributory negligence on the part of Mrs. Morton has not been raised on appeal.

Appellants contend that respondents failed, as a matter of law, to make out a prima facie case of negligence, based on either actual or constructive notice to appellants of the presence of an appricot on the walkway.

There is no evidence, and it is not contended, that any of the appellants or any of their agents or employees had actual notice. There was, as a matter of law, no actual notice.

Was there sufficient evidence of negligence based on the theory of constructive notice to make out a prima facie case?

The evidence before us in the trial record indicates the following facts: For about 18 years appellants had maintained a display stand in front of their market on which fruits in season, boxes of tomatoes, sacks of charcoal and potatoes, and other items were placed. Fruits, intended for sale by the box, were displayed by the box; whereas, fruits designed for sale in lesser quantities, were found in bins located inside the store. On the day in question, there was at least one full box, open-topped, of apricots on the stand in front of the store. The stand was constructed so that the top would be horizontal; however, because of a slope on the concrete on which the stand rested, the tops of the boxes slanted slightly downward toward the street. Whether the stand was entirely on appellants' property or partly on the public sidewalk was not clearly established.

Mrs. Morton testified that she did not see the apricot when she went into the market nor when she came out and stepped upon it. Mike Powell also did not notice the apricot when he went into the market. He testified that on his departure from the store, he preceded his grandmother to the door, held it open for her to pass, and followed her out of the store. He did not see the apricot until after her fall.

Mr. Morton testified that he did not see the apricot when he went into the market; but he did see a whole apricot lying on the sidewalk when he left the market building. At that time, he had thought of kicking it aside but decided not to because two people passed by him just at that moment, and he felt that he might kick it into them. His best estimate was that about 5 minutes elapsed from the time he left the market until he was informed of his wife's fall.

Mrs. Francis Glazier, wife of a clothing store owner whose store was located just east across the alley from appellant's market on the same side of the street, testified that she left the clothing store and passed the market on her way to coffee or lunch, at noon or shortly before. At that time, she saw a crushed fruit on the walk in front of the market but she was unable to identify it. She thought this was prior to the fall about which she heard afterwards.

There was testimony that Mrs. Morton stepped on a whole apricot, and while she was down on the walk some one kicked the remains back toward the front wall of the market building.

Jim Wright, produce man in the market, testified that he was in the market building; that he proceeded to the front entrance when he saw a commotion there; that he picked up an apricot pit from the pavement and threw it into the disposal. Whether this was the same pit that had been kicked previously cannot be ascertained from the record.

At the time of the fall, there were present in the market, in addition to A. L. Lee and E. H. Lee, the appellants, a produce man, at least one stock boy and box boy, possibly two, and at least one checkstand cashier, possibly two. The market had only one customer exit-entrance door. The entrance walkway and the sidewalk adjacent to it were visible from one of the three checkstands which was about 12 feet from the door. The entrance door had a wooden base panel, about 12 to 15 inches high, which impaired visibility somewhat from within the store into the walkway area immediately in front of the door when the door was closed.

As to the procedures followed to keep the outside display area and the sidewalk adjacent to it reasonably safe for customers and other invitees, the testimony discloses that the walkways were regularly swept at 9 o'clock in the morning upon opening the market for the day, and ordinarily not again that day unless a condition came to attention of those working in the market that would require sweeping. The market was open until 9 o'clock in the evening. The walkway and entrance had been swept at 9 a.m. on the morning in question but not again prior to the fall. No one employee was charged with the specific responsibility of overseeing the housekeeping in this area. The box boys used the one customer entrance-exit to carry out the customer purchases. They, and all employees, had instructions to pick up any litter or debris whenever they saw it.

Appellants argue that the only testimony as to how long the apricot had been on the walk was that of Mr. Morton who saw it 5 minutes before the fall, and that 5 minutes, as a matter of law, is not sufficient to constitute constructive notice and that the action should have been dismissed.

Ordinarily, it is a question of fact for the jury, whether under all of the circumstances, a defective condition existed long enough so that it would have been discovered by an owner exercising reasonable care. Presnell v. Safeway Stores, Inc., 60 Wash.2d 671, 374 P.2d 939 (1962). The permissible period of time for the discovery and removal or warning of the dangerous condition is measured by the varying circumstances of each case. To a large extent, it depends upon the opportunity for discovery open to the defendant's employees by reason of their number, their physical proximity to the hazard, and, in general, the likelihood they would become aware of the condition in the normal course of duties. The decisive issues, therefore, are the length of time the condition is present and the opportunity for discovery under the circumstances proved. Deagle v. Great Atlantic & Pacific Tea Co., 343 Mass. 263, 178...