Presho v. J. M. McDonald Co.

• Decision Date: 09 June 1967
• Docket Number: No. 36554,36554
• Citation: 151 N.W.2d 451,181 Neb. 840
• Parties: Eugenie PRESHO, Appellant, v. J. M. McDONALD CO., a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 451

151 N.W.2d 451

181 Neb. 840

Eugenie PRESHO, Appellant, v. J. M. McDONALD CO., a Corporation, Appellee.

No. 36554.

Supreme Court of Nebraska.

June 9, 1967.

Syllabus by the Court

1. A motion for directed verdict or its equivalent must for the purpose of decision thereon be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. A person who enters a retail store for the purpose of shopping or of making a purchase is an invitee within the legal meaning of that term.

3. In general, a licensee is one who is privileged to enter or remain upon property by virtue of the possessor's consent, whether express or implied.

4. The owner or occupant of property owes an invitee the duty to observe and exercise for his protection the degree of care, caution, and vigilance which the circumstances justly and reasonably demand in order to protect him against injury or damage.

5. The owner or occupant of property owes to a licensee the duty only to refrain from injuring him by willful or wanton negligence or a designed injury, or by failure to warn of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee in the exercise of ordinary care.

6. As a general rule a customer trading in a retail store has the right to rely upon the safety of passage along passageways used by customers and by doing so is not necessarily guilty of contributory negligence as a matter of law.

Quigley & Quigley, William S. Dill, Valentine, Deutsch & Hagen, Norfolk, for appellant.

Robert V. Hoagland, Ainsworth, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SPENCER, Justice.

This is an action for injuries sustained by plaintiff in defendant's building. The trial court directed a verdict for the defendant at the close of plaintiff's evidence, and plaintiff has perfected an appeal to this court.

A motion for directed verdict or its equivalent must for the purposes of decision thereon be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact rersolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence. Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842. We interpret the evidence delineated herein in the light of this rule.

The accident happened about 6:30 p.m., on Saturday, January 13, 1962, in a rear room of defendant's general merchandise store in Valentine, Nebraska. The store is located on the northeast corner of an intersection facing west on the principal street. The room where the accident occurred, which will hereinafter be referred to as the back room, is in the southeast portion of the rear of the store, and no merchandise is displayed or sold therein. The room is actually a storage and cloak room for employees. It does contain a ladies' restroom in one corner, and an office setup in another. The ladies' restroom is used by customers, but the evidence does not indicate it is maintained specifically for them. However, the plaintiff had never used it and did not know it was there until after the accident.

Plaintiff, who had been in the insurance business in Valentine for many years, had been in defendant's store on one or two other occasions on the day in question. She testified that she went into the store at approximately 6:30 p.m. to make a purchase and to get an empty box in which to ship an article she had purchased elsewhere. The employees were busy, and she asked the manager, who was also busy, if she could 'have a box to fit this frame.' The frame in question was a wrapped 10 by 10-inch picture she had purchased elsewhere. Plaintiff testified the manager said, "Yes, help yourself." Plaintiff had obtained boxes there on at least two or three other occasions, and knew they were kept in the back room. Plaintiff went to the back room through the door connecting that area with the store proper. This door was usually open.

Plaintiff entered through the open door, and the next thing she remembers she was trying to pick herself up after hooking her toe on some object which she later determined to be the floor. Exhibit No. 1 is a photograph of the view from the open door into the back room. It shows a coat rack and some ladders against the south wall, and snow shovels directly against the east wall. It also shows a raised area in the floor, about a step inside the door where the cement floor between the door and the belance of the floor had settled. The raised area, looking through the doorway, starts on the north at less than one-eighth of an inch, and increases until it is at least one inch at the south. Anyone entering the door, looking at the floor, could see the raised area. Plaintiff's testimony on cross-examination is as follows: 'Q Now, as you went--on this particular afternoon, you were in a hurry, were you, to get a box? A Not any more than usual. Q And as you went out through this door, did you look down as you went through the door? A A person laways does. When you're walking you don't hardly look going--without looking where you're going. Q Well, you looked down then, is that correct? A Absolutely. * * * Q And you observed the condition of the floor at that time? A Beg you pardon? Q You observed the condition of the floor at that time? A I couldn't see anything the matter with it, if that's what you meant.'

The parties are in disagreement as to whether plaintiff was an invitee or a licensee. The law imposes a duty of greater care for the protection of an invitee on premises than it does for a licensee.

A person who enters a retail store for the purpose of shopping or of making a purchase is an invitee within the legal meaning of that term. Taylor, v. J. M. McDonald Co., 156 Neb. 437, 56 N.W.2d 610.

In general, it may be said that a licensee is one who is privileged to enter or remain upon property by virtue of the possessor's consent, whether express or implied. Lindelow v. Peter Kiewit Sons', Inc., 174 Neb. 1, 115 N.W.2d 776.

The owner or occupant of property owes to an invitee the duty to observe and exercise for his protection the degree of care, caution, and vigilance which the circumstances justly and reasonably demand in order to protect him against injury or damage. Schild v. Schild, 179 Neb. 282, 125 N.W.2d 900.

'The owner or occupant of property owes to a licensee the duty only to refrain from injuring him by willful or wanton negligence or a designed injury, or by failure to warn of a hidden danger or peril known to the owner or accupant but unknown to or unobservable by the licensee in the exercise of ordinary care.' Schild v. Schild, 176 Neb. 282, 125 N.W.2d 900.

In the store proper, merchandise was displayed to attract plaintiff's attention, and she...