Presnell v. Safeway Stores, Inc.

• Decision Date: 04 October 1962
• Docket Number: No. 36143,36143
• Citation: 60 Wn.2d 671,374 P.2d 939
• Parties: Elsie PRESNELL, Respondent, v. SAFEWAY STORES, INC., a corporation, Appellant.
• Court: Washington Supreme Court

Page 671

60 Wn.2d 671

374 P.2d 939

Elsie PRESNELL, Respondent, v. SAFEWAY STORES, INC., a corporation, Appellant.

No. 36143.

Supreme Court of Washington, Department 1.

Oct. 4, 1962.

As Amended Nov. 7, 1962.

Parker & Parker, Aberdeen, for appellant.

Schumacher & Charette, Aberdeen, for respondent.

FOSTER, Judge.

Respondent, plaintiff below, sued for personal injuries sustained when she fell in appellant's Aberdeen supermarket. From the judgment on the verdict, which it claims is excessive, defendant appeals. Appellant contends that the evidence is insufficient on both actual causation and constructive notice and that an exhibit was erroneously admitted.

Respondent was a regular customer of appellant, and, on the day of the accident, was shopping in its supermarket with a friend who testified that, after completing their selections, she signaled respondent to a vacant check stand near the front of the store, but, however, not in proximity with the fresh produce racks. Respondent, while approaching the check from an aisle, slipped and fell to the floor.

The evidence that respondent slipped on the banana peeling created a jury question. While there was no direct testimony that respondent's foot touched the banana peeling, there was, however, considerable circumstantial evidence that respondent did in fact slip on it and from which the jury could have so found and apparently did.

Respondent's companion testified that she picked up a banana peeling at the exact spot of the fall and showed it to appellant's manager, who admitted that it looked as though it had been stepped on. At the hospital, a nurse's aid removed a foreign substance from the heel of respondent's shoe.

While there was contradictory testimony, the resolution of that conflict was for the jury and not for this court. Negligence, like any other fact, may be proved by circumstantial evidence. Falconer v. Safeway Stores, Inc., 49 Wash.2d 478, 303 P.2d 294; Wise v. Hayes, 58 Wash.2d 106, 361 P.2d 171. Evidence of liability need not be conclusive. It is sufficient if respondent's evidence affords room for men of reasonable minds to conclude that there is greater probability that the accident happened in the manner claimed, than that it happened in a way for which appellant would not be liable. Frothinger v. Serier, 57 Wash.2d 780, 360 P.2d 140.

Appellant contends there was insufficient evidence that appellant had constructive notice of the existing danger on its floor giving rise to a duty to remove. As to business invitees, if the negligence of a storekeeper is predicated upon his failure to keep his premises in a reasonably safe condition, it must be shown that the condition has either been brought to his attention or has existed for such time as would have afforded him sufficient opportunity, in the exercise of reasonable care, to have become cognizant of it and to have removed the danger. Mathis v. H. S. Kress Co., 38 Wash.2d 845, 232 P.2d 921; Smith v. Manning's Inc., 13 Wash.2d 573, 126 P.2d 44. There is no proof of actual knowledge.

Appellant asserts that the only evidence upon which the jury could find negligence based upon constructive notice is the evidence with reference to the color of the banana peeling, and that this alone is not sufficient. While we agree that the inference arising from the dark color of the banana peeling alone would not be sufficient, such is not the only proof from which constructive notice could be inferred.

Although there is no direct evidence as to how long the banana peeling was on the floor, there is, however, considerable circumstantial evidence thereof and direct proof of the frequency of inspection or cleaning.

The store manager testified that various departments of the store were swept 'twice a day, some 3 times a day, in other places maybe 20 times just depending when the debris gets on there it is swept.' There was evidence that, on the day in question, the floor was generally cluttered with paper and wrappers and was dirty. There was testimony by respondent's companion and a store employee that, for several minutes prior to the accident, they saw no one eating bananas in the store, the inference being that the peeling was thrown on the floor before respondent and her companion arrived or had been there for a considerable period of time. Several witnesses testified to the dark color of the banana peeling and, while this may give rise to competing inferences, one of them is that the peeling had remained on the floor for a considerable period of time. It would be the rare case in which the exact time could be proved.

In Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 184 P.2d 708, the court said:

'* * * The true rule is that, while plaintiff must prove that the defective condition existed long enough so that by the use of reasonable care it should have been discovered and remedied, that fact, like other facts, may be proved by circumstantial as well as by direct evidence. * * *'

Accord: Hatfield v. Levy Brothers, 18 Cal.2d 798, 117 P.2d 841.

The permissible period of time for the discovery and removal or warning of the dangerous condition is measured by the varying circumstances of each case. To a large extent it depends upon the opportunity for discovery open to the defendant's employees by reason of their number, their physical proximity to the hazard, and, in general, the likelihood that they would become aware of the condition in the normal course of duties. The decisive issues, therefore, are the length of time the condition is...