Perez v. Ow

• Decision Date: 21 February 1962
• Citation: 19 Cal.Rptr. 372,200 Cal.App.2d 559
• Court: California Court of Appeals Court of Appeals
• Parties: Edna PEREZ, Plaintiff and Appellant, v. Frank's Market et al., Defendants, Albert OW, individually and dba Fairmart, and Fairmart, sued as Frank's Market, Defendants and Respondents. Civ. 19514.

Page 372

19 Cal.Rptr. 372

200 Cal.App.2d 559

Edna PEREZ, Plaintiff and Appellant, v. Frank's Market et al., Defendants Albert OW, individually and dba Fairmart, and Fairmart, sued as Frank's Market, Defendants and Respondents.

Civ. 19514.

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

Feb. 21, 1962.

Robert H. Simons, Santa Clara, for appellant.

Campbell, Custer, Warburton & Britton, San Jose, George A. Strong, Santa Clara, of counsel, for respondents.

AGEE, Justice.

Plaintiff appeals from a judgment of nonsuit in a slip and fall case. The sole question herein is whether the evidence, as viewed most favorably to plaintiff, is sufficient to support a judgment in her favor.

Defendants operate a market in San Jose. Adjacent thereto is a small paved parking lot accommodating about three cars and maintained by the market for the use of its partons.

On Sunday, April 27, 1958, about 2:30 o'clock p. m., plaintiff walked across the lot and into the market. After making several purchases she left over the same route. The day was described by her as being 'very nice.' After taking six to eight steps across the lot, plaintiff slipped on a foreign substance, which was apparently chocolate ice cream, and fell. She did not see this substance either on her way into or out of the market. The area where the ice cream lay is viewable from the check stand in the market by looking through a glass door and window.

Plaintiff was a business invitee on the lot as well as in the market and defendants owed the duty of exercising ordinary care to avoid injury to her. Plaintiff does not contend that the mere happening of the accident raises any inference of negligence by defendants or that the doctrine of res ipsa loquitur is applicable. (See Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 557, 213 P.2d 417; Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 741, 314 P.2d 33.) Nor does she contend that defendants had any express knowledge that any ice cream had been dropped on the parking lot.

The issue is dispute may be generally stated to be whether there is sufficient evidence to support a finding that defendants had constructive notice of the condition complained of in time to have remedied it before the accident occurred.

The decisive point of inquiry is the length of time the condition had existed. It is reasonable to infer that someone had purchased ice cream at defendants' market (even though another market is on the opposite corner) and had then left by the same route later taken by plaintiff; that this someone had dropped the ice cream, or some of it, on the pavement at the point where plaintiff fell.

But there is absolutely no evidence from which any conclusion at all can be drawn as to the length of time the ice cream had been there. In plaintiff's brief, there is mention of 'melted' ice cream and the argument is made that, it having been purchased in a frozen state, there is 'a strong probability that the ice cream lay melting upon the asphalt a sufficient enough time to afford notice' to defendants.

The weakness of this argument is that there is no testimony as to the condition of the ice cream at the time of the accident. The only testimony as to the ice cream being there at all was given by plaintiff and she never at any time described its condition or stated that it was 'melted' or 'melting.'

Plaintiff had the burden of producing evidence of the existence of the condition complained of for at least a sufficient time to support a finding that defendants had constructive notice thereof. This she failed to do.

The plaintiff in Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 184 P.2d 708, overcame the difficulty confronting the plaintiff in the instant case. In holding that the issue of constructive notice was properly left to the jury, the court said: 'There is evidence that the puddle of syrup [which caused the plaintiff to fall] had reached appreciable proportions before the accident. There is evidence of defendant's own witness that this syrup was quite thick, possessed adhesive qualities, that the day was cold, and that on such a day the syrup would flow quite slowly. It is a reasonable inference that for this heavy thick fluid to have seeped through the paper bag and to have formed a puddle of appreciable proportions would take a substantial period of time.' (p. 608, 184 P.2d p. 712)

In Travis v. Metropolitan Theatres Corp., 91 Cal.App.2d 664, 205 P.2d 475, plaintiff respondent slipped on some vomit on the floor of the theater. The court said: 'The sole contention on appeal is that the condition did not exist for such length of time that a reasonably purdent person would have discovered it in time to remove it prior to respondent's arrival. * * * [T]he substance had actually remained on the floor long enough to form a crust on its surface. Mr. Pike testified that...