Parness v. City of Tempe

• Decision Date: 09 October 1979
• Docket Number: CA-CIV,No. 1,1
• Citation: 123 Ariz. 460,600 P.2d 764
• Parties: James PARNESS, by and through his next friend Maria Parness, Plaintiff-Appellant, v. The CITY OF TEMPE, a municipal corporation, Defendant-Appellee. 4120.
• Court: Arizona Court of Appeals

Page 764

600 P.2d 764

123 Ariz. 460

James PARNESS, by and through his next friend Maria Parness, Plaintiff-Appellant, v. The CITY OF TEMPE, a municipal corporation, Defendant-Appellee.

No. 1 CA-CIV 4120.

Court of Appeals of Arizona, Division 1, Department C.

Oct. 9, 1979.

Napier & Jones by Michael Napier, Robert F. Clarke, Phoenix, for plaintiff-appellant

O'Steen Legal Clinic by Van O'Steen, Phoenix, co-counsel for plaintiff-appellant.

Snell & Wilmer by W. Charles Thomson, Donald D. Colburn, Phoenix, for defendant-appellee.

OPINION

FROEB, Judge.

Escalante Community Center is operated for neighborhood recreation by the City of Tempe (City). During the late afternoon of July 16, 1974, James Parness, age 7, went to the center to play and was knocked down from behind by one or two boys (referred to hereafter in the plural). The identity of the boys and the reasons for the incident are not known. Parness fell to the ground and severely cut his hand on broken glass, injuring nerves and tendons.

An action for damages based on negligence was brought against the City by Maria Parness on behalf of her son, James (plaintiff). The case was tried to a jury and resulted in a directed verdict in favor of the City after plaintiff rested. Following the denial of a motion for new trial, plaintiff filed this appeal. ¹

The trial court granted the directed verdict on the ground that, even assuming the negligence of the City, the conduct of the unidentified boys was a superseding cause of plaintiff's injuries which relieved the City of liability. On appeal the City defends the ruling on two grounds: (1) there was no evidence of negligence, and (2) the conduct of the unidentified boys was a superseding cause of the injuries. Plaintiff argues that negligence of the City was shown and the conduct of the boys was not a superseding cause.

We turn first to the question of the negligence of the City. Its duty was to keep its premises in a reasonably safe condition for users of the neighborhood recreation center. Hlavaty v. Song, 107 Ariz. 606, 491 P.2d 460 (1971). There is little question but that broken glass in a recreational area is an unreasonably dangerous condition. The evidence is sufficient to show that plaintiff was injured by broken glass. The essential question is whether the City had actual notice of the broken glass or if not, whether the glass was on the ground for a sufficient period of time for the City, in the exercise of reasonable care, to have discovered and removed it before the accident. McGuire v. Valley National Bank, 94 Ariz. 50, 381 P.2d 588 (1963); Walker v. Montgomery Ward and Co., Inc., 20 Ariz.App. 255, 511 P.2d 699 (1973).

We find there was reasonable evidence that the City had actual notice of the broken glass, and so do not reach the question of constructive notice. The recreational official, Jerry Slemmer, testified that before the accident he "always" saw broken glass on the ground, including the area where plaintiff was injured. He stated, "I just also noticed there would always be glass laying around the building . . . . No, not particularly in one spot. It was just kind of always there, always." As Slemmer was employed by the City, his knowledge is attributed to his employer. See In re Estate of Milliman, 101 Ariz. 54, 415 P.2d 877 (1966). Furthermore, Slemmer verbally informed his supervisor of the hazard when he told him, before the accident: "Hey, we have some glass out here we ought to get it up."

Nevertheless, the City argues that the plaintiff's case fails because there is no evidence that the City had knowledge of the specific piece of glass which caused plaintiff's injury. For this, the City relies upon McGuire v. Valley National Bank, Walker v. Montgomery Ward and Co., Inc., and Berne v. Greyhound Parks of Arizona, Inc., 104 Ariz. 38, 448 P.2d 388 (1968). Plaintiff argues that evidence of the specific piece of glass was not necessary, relying upon Safeway Stores, Inc. v. Cone, 2 Ariz.App. 151, 406 P.2d 869 (1966) and Rhodes v. El Rancho Markets, 4 Ariz.App. 183, 418 P.2d 613 (1966). We are persuaded that the plaintiff's position is correct. In McGuire, a tenant of a building managed by the defendant slipped and fell on a "pebble-like substance" on a stairway maintained for the tenant's use. The Supreme Court upheld a directed verdict for defendant because there was no evidence that the particular substance causing the fall was on the stairway for a sufficient length of time to permit the defendant, in the exercise of due care, to discover and remove it. The evidence showed that the defendant did have knowledge of a continuing condition of dust, grit, and dirt being tracked onto the stairway during construction. The plaintiff, however, fell on a "pebble-like substance," not the dust, grit, and dirt. At best, the evidence showed that a janitor employed by defendant saw a pebble-like substance on the stairway prior to the day of the accident and another janitor had seen a pebble-like substance on the stairway a little more than two hours before the accident, but had swept it up, leaving the stairway clean. Thus, the pebble-like substance was not a continuing dangerous condition.

In Walker a customer of the defendant store slipped and fell in a store aisle on a piece of a peach. Summary judgment for defendant was upheld because there was no evidence that the peach was present through the acts of the defendant or its employees, or that the defendant had actual knowledge or notice of the piece of peach, or that it had been present long enough for the defendant, in the exercise of reasonable care, to discover and remove it. There was evidence that none of the defendant's employees were in the vicinity of the aisle where the customer fell and that no produce (including peaches) was on display in this area of the store.

In Berne, a patron of the racetrack slipped on a puddle of liquid which had dripped from cracks in the grandstand onto the mezzanine floor below. The evidence showed that only a few times before had any employee of the defendant seen any puddles and that those seen were very small in size. The Supreme Court upheld a directed verdict for defendant, finding that the conditions producing the occasional puddles did not create an unreasonable risk of harm.

While the McGuire, Walker and Berne cases arguably require knowledge of the specific injury-producing condition, they are inapplicable to the facts of the present case where there is prima facie evidence that the injury-producing condition was known to the City. Knowledge of a continuing condition of broken glass must be deemed to include knowledge of the specific piece of glass which caused the injury. Actual perception of the specific piece of glass under these facts is not required.

Plaintiff's reliance upon Safeway Stores, Inc. v. Cone and Rhodes v. El Rancho Markets is well placed. In Cone, the customer entered the store during a downpour and slipped and fell in a large puddle through which she had to pass to conduct her business in the store. The court held that direct evidence as to the size of the puddle or how long it had been there was not required. The rain, which had been falling off and on all day, constituted notice to the defendant that a dangerous condition existed and that increased precautions were necessary to maintain reasonably safe premises. Further, the puddle was at the main entrance of the store and was in the viewing area of store personnel. Constructive knowledge of the condition was imputed to the defendant because of these circumstances.

In Rhodes, the trial court granted a directed verdict on the ground that the plaintiff did not introduce evidence that defendant had actual or constructive notice of the specific piece of lettuce on the floor of the produce section which caused the fall. The Court of Appeals reversed, finding that knowledge by the defendant of the specific piece of lettuce causing the fall was not necessary. It held, Inter alia, that the display of produce in open bins was a condition which would create a foreseeable risk of harm if produce dropped to the floor after being handled either by store customers or employees. The court held that, knowing of the risk, it was a jury...