O'Neil v. Furr's, Inc.
| Decision Date | 18 June 1971 |
| Docket Number | No. 564,564 |
| Citation | 82 N.M. 793,487 P.2d 495,1971 NMCA 97 |
| Parties | Thomas J. O'NEIL, Plaintiff-Appellant, v. FURR'S, INC., and Bellas Hess Super Stores, Inc., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff, O'Neil, a salesman, sold bakery products to defendant, Furr's Inc. It was plaintiff's obligation to keep the assigned shelf space in defendant's grocery store replenished. Because there was no guarantee that plaintiff would be able to make delivery on short notice, it was to his advantage to keep a 'backup' supply of bakery products at the store in addition to those on the display shelf. Defendant's manager directed plaintiff to keep this 'backup' supply on top of a walk-in cooler which was eight feet high. Other bakery salesmen also kept their 'backup' supplies on top of the cooler. One day when plaintiff was on top of the cooler he slipped on some peas, fell and was injured.
Defendants' motion for summary judgment was denied. The case was tried to a jury. Motions for a directed verdict on the theory of contributory negligence and assumption of risk at the end of plaintiff's case and at the close of all the evidence were denied. However, the jury was unable to arrive at a verdict and was discharged. Thereafter, defendants again made a motion for a directed verdict pursuant to § 21--1--1(50) N.M.S.A.1953 (Repl.Vol.1970). The court granted the motion ruling that defendants were not negligent and that plaintiff was guilty of contributory negligence and assumption of risk.
On appeal plaintiff asserts that there were questions of fact on the issue of defendants' negligence and plaintiff's contributory negligence and assumption of risk, and it was therefore error to take these issues away from the jury.
We affirm.
Our opinion will be limited to the negligence of defendants, proximate cause and assumption of risk. The issue of assumption of risk and proximate cause in those areas where defendants could have been found negligent is dispositive of the issues on appeal and we will not discuss plaintiff's contributory negligence. Williamson v. Smith (Ct.App.) 82 N.M. 517, 484 P.2d 359, decided March 26, 1971.
Plaintiff would have us rule that there were issues of fact to be determined by the jury regarding defendants' failure to provide a safe place for plaintiff to work. The allegations center around three factual circumstances: the presence of loose peas on top the porcelain cooler; defendants' not providing a ladder for plaintiff thus making it necessary for him to climb on boxes and then on top the cooler to store his 'backup' supplies; and not providing a rail on top of the cooler.
NEGLIGENCE OF DEFENDANTS.
The mere presence of the peas on top the cooler with no other evidence from which negligence may have been inferred did not present a question of fact to be determined by the jury. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 458 P.2d 843 (Ct.App.1969). Plaintiff asserts, and we agree, that he was a business visitor. Mozert v. Noeding,76 N.M. 396, 415 P.2d 364 (1966). In order to find one negligent towards his business invitees it is necessary that the evidence or reasonable inferences therefrom establish a dangerous condition which either is known or should have been known to the proprietor; that the dangerous condition is such that the owner realizes that his invitees would not discover the danger for themselves; and with such knowledge the proprietor fails to exercise reasonable care to protect his invitees. Williamson v. Piggly Wiggly Shop Rite Foods, Inc.,supra.
The evidence in this case is that the peas were seen on the cooler for the first time on the day of the accident, and that plaintiff was the only person who saw them. There was neither evidence nor speculation as to how the peas got there. The proprietor and his employees had no likelihood of seeing loose peas on the cooler for only salesmen of bakery products went on top the cooler. The evidence adduced at trial leads only to the conclusions that defendants had no reason to suspect that there would be any peas on top the cooler. They could not be charged with knowledge of the dangerous situation. Hence, as a matter of law, they were not negligent on this issue to their business invitees. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., supra.
SAFE PLACE TO WORK.
We shall assume for purposes of this discussion that defendants in fact had a duty to provide plain...
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Gutierrez v. Albertsons, Inc.
...or had reason to know of the condition. Id.; see also Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712 (1958); O'Neil v. Furr's, Inc., 82 N.M. 793, 487 P.2d 495 (Ct.App.1971). In O'Neil, this court articulated the duty owed by a store owner to a business invitee who is injured from a slip-an......
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Knapp v. Fraternal Order of Eagles
...accident and his resulting injuries is also a proper matter for the trier of fact. Defendant seeks support in O'Neil v. Furr's, Inc., 82 N.M. 793, 487 P.2d 495 (Ct.App.1971) and in Williams v. Herrera, 83 N.M. 680, 496 P.2d 740 (Ct.App.1972). Both cases are In O'Neil, this court held that i......
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Latimer v. City of Clovis
...because he was too young. For assumption of risk to apply, Mack must have known of the dangerous situation. O'Neil v. Furr's, Inc., 82 N.M. 793, 487 P.2d 495 (Ct.App.1971); See Hinojosa v. Nielson, 83 N.M. 267, 490 P.2d 1240 (Ct.App.1971). The trial court erred in granting summary judgment ......
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