Oldenburg v. Sears, Roebuck & Co.

• Decision Date: 24 July 1957
• Citation: 314 P.2d 33,152 Cal.App.2d 733
• Court: California Court of Appeals Court of Appeals
• Parties: Pearl OLDENBURG, Plaintiff and Respondent, v. SEARS, ROEBUCK & CO., a corporation, Defendant and Appellant. Civ. 22324.

Page 33

314 P.2d 33

152 Cal.App.2d 733

Pearl OLDENBURG, Plaintiff and Respondent, v. SEARS, ROEBUCK & CO., a corporation, Defendant and Appellant.

Civ. 22324.

District Court of Appeal, Second District, Division 2, California.

July 24, 1957.

Rehearing Denied Aug. 15, 1957.

Hearing Denied Sept. 18, 1957.

Moss, Lyon & Dunn, Sidney A. Moss, John D. Wheeler and Henry F. Walker, Los Angeles, for appellant.

John P. McGinley and David M. Harney, Los Angeles, for respondent.

FOX, Justice.

While walking on the sidewalk adjacent to one of defendant's stores, plaintiff stepped on a piece of chalk. It rolled and caused her to fall. She sued defendant for damages for the injuries thus sustained. The jury returned a verdict in her favor. Defendant appeals from the judgment and the order denying its motion for a judgment notwithstanding the verdict.

In seeking a reversal defendant (sometimes herein referred to as Sears) contends that the evidence fails to show that it was either responsible for the chalk being on the sidewalk, or that it had either actual or constructive notice of its presence there.

Sears operates a store at 12121 Victory Boulevard, in North Hollywood, California, which is known as the Valley Store. It is located on the north side of Victory, on which it has a frontage of approximately 150 feet; it has a depth of some 500 feet to Hamlin. There is a sidewalk and parking area on both the east and west sides of the store. The sidewalks are between 10 and 13 feet wide and are adjacent to the building. There are three doors opening onto the sidewalk on the east; one of these is toward the north end of the building, one toward the south, and the other about the middle. There are also three openings on the west. Only the employee's entrance, which is located near the middle, has any significance here. The stationery and drug departments are located on the first floor and generally in the southwest quadrant thereof. In the northeast corner nursery products are sold. There is a toy department on the second floor. The parking areas were not for the sole use of defendant's customers; there were other stores in the vicinity whose customers also used these parking facilities.

Plaintiff's fall occurred on the sidewalk adjacent to the east side of the store, between the southernmost and middle door-ways. It was stipulated that plaintiff was a business invitee at the time and place of the accident, and that defendant 'was exclusively in the control, operation and maintenance of the sidewalk in question.'

The piece of chalk on which plaintiff stepped was pink, round in shape, approximately 1 1/2 inches long and 5/16ths of an inch in diameter. There is no claim that anything else caused her to fall.

Plaintiff was 68 years of age at the time of the accident. She and her husband went to Sears' Valley Store for the purpose of purchasing a potted plant. They parked in the parking area on the east side near the center of the building. There were 'very few cars' on the lot and not many people around. They entered the store on the east side by the south door. It was about 9:30 in the morning; the store was 'just opening up.' Upon inquiring about garden plants, plaintiff was directed to the northeast corner of the store. There she was informed that the potted plant she desired was not in stock. She and her husband then left the store through the northerly door on the east side of the building; they proceeded in a southerly direction on the sidewalk toward their car. A short distance after passing the center door, plaintiff stepped on the piece of chalk and fell. She never saw what caused her to fall. Her husband, however, retrieved the offending object.

Plaintiff's first witness at the trial was Mrs. Worthen, who was then employed by Sears as a registered nurse at the Valley Store. She was summoned to the scene of the accident around 10:00 o'clock that morning. She called an ambulance service which, however, did not respond promptly, thus necessitating a check on it. Also, she called Dr. Goodman, a Sears approved doctor, and explained the situation to him. He advised the nurse that he would get in touch with Dr. Gamble 'because it sounds like she has a broken hip.' The nurse attended plaintiff until the ambulance took her to the hospital, where Dr. Gamble took charge.

In the meantime, the nurse filled out the Customer Accident Report, in which she indicated by a checkmark that the location where the accident happened was swept daily. However, she had no personal knowledge as to how often the premises were swept. She received her information as to this matter from the personnel office.

While the nurse was at the scene, she observed two chalk marks. They were on separate but adjacent squares of the sidewalk. One was approximately 2 3/4 inches long while the other was a little more than half that length. The larger mark was near where plaintiff's 'knees would be.'

In further describing the sidewalk at the scene of the accident there was testimony indicating the presence of two or three globs of hardened gum, 'a black mark,' approximately a half dozen 'little pieces of something' that the nurse picked up and put in her pocket, and two or three places which the nurse rubbed with her foot 'as though she was trying to rub something out.' It is not claimed, however, that any of these items had anything to do with plaintiff's falling.

Charles W. Teed was defendant's operating superintendent, which included maintenance. As part of his duties, Teed inspected the sidewalks bordering the store three or four times daily. There was 'a definite schedule for constantly maintaining cleanliness.' It called, inter alia, for cleaning the sidewalks between 6:30 and 9:00 o'clock each morning. The system provided for 'constant patrol' with respect to the maintenance of the sidewalks and 'sweeping whenever necessary.'

Mr. Teed usually arrived at the store between 8:45 and 9:00 o'clock. After he parked, the first thing he did was to inspect the sidewalks. While he had no independent recollection of the morning of this accident, in this respect, he made such an inspection every day that he came to work and he was there that particular day, having been called to the scene of the accident before plaintiff was taken to the hospital.

Directly under Mr. Teed on the maintenance side of the store's operation was the building engineer, Mr. Schugt. Mr. Teed told him that 'he was to maintain a very high standard of cleanliness'; that the premises were 'to be maintained in a safe and clean manner at all times.' The porters and maids who did the cleaning were under the supervision of Schugt. The head porter was Mr. Clay. On his day off, Mr. Ham acted in his place.

The porters' time cards disclose that on February 16, 1954, the date of plaintiff's accident, six porters reported for work on the 4:00 a.m. shift (other porters came to work at 9:30). It was Clay's day off, so Ham acted as head porter. Only the latter's testimony and that of Mr. Polley, whose duty it was to clean the sidewalks commencing at 6:30 a.m., are important.

The Valley Store had an alarm system, referred to as ADT, which operated and controlled until 7:40 a.m. If, before that time, any door was opened other than at a scheduled time an alarm would go off. Only the employees' entrance was scheduled for opening at an earlier hour. After the 4:00 a.m. opening of the employees' entrance, its next scheduled opening was 6:30; thereafter the scheduled openings were 7:00, 7:20 and 7:40 a.m.

Neither Ham nor Polley had any independent recollection of the day in question. However, every day that Polley worked he would, upon being let into the building with the other porters on the 4:00 a.m. opening, begin working on the inside. Part of his job was to clean the sidewalks. He was on a regular schedule for starting this part of his work and reported at the employees' entrance each day so as to be let out on the 6:30 ADT opening. He took with him a broom, a dustpan, pushcart and scraper. He always started his sidewalk cleaning at the employees' entrance. From there he worked south each morning to Victory and continued all the way around the building. It took about 2 1/2 hours to clean the sidewalks. When the finished this work he reported to the head porter (on this day Mr. Ham), who gave him his next assignment. Polley knew that the head porter and Schugt would inspect his work to see whether he had properly cleaned the sidewalks. Polley checked the sidewalks four or five times daily to see whether they were clean.

It was Ham's practice, in the absence of Clay, to unlock the various doors to the store between 9:00 and 9:30 each morning and at that time step out and look up and down the sidewalk, and then put the door on a hook so that no one could come in before opening time. When the store opened at 9:30 Ham would walk around the store inspecting the sidewalks.

Mr. Schugt was at work on the day of the accident. He inspected the sidewalks every day when he came to work between 8:00 and 8:30 a.m. and inspected them at frequent intervals throughout the day.

After the accident, Mr. Rowland, defendant's security supervisor, investigated to see whether chalk was sold in the store. He found that neither the stationery nor the toy departments had chalk on hand. He did not inquire at other departments.

While other employees of defendant, such as Miss Fife, personnel manager, and Mr. Carmichael, manager of the drug and cosmetic department, were at the scene of the accident after plaintiff fell, not one of them was able to throw any significant additional light on the circumstances surrounding her fall. Although plaintiff's husband was with her and attended the trial he did not testify.

The occupier of business property owes to invitees a duty to exercise reasonable care in keeping the premises reasonably safe for such invitees. Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 608, 184...