Preuss v. Sambo's of Arizona, Inc.

• Decision Date: 08 October 1981
• Docket Number: No. 15335,15335
• Citation: 635 P.2d 1210,130 Ariz. 288
• Parties: Hazel A. PREUSS and Edgar F. Preuss, her husband, Appellees, v. SAMBO'S OF ARIZONA, INC., Appellant.
• Court: Arizona Supreme Court

Page 1210

635 P.2d 1210

130 Ariz. 288

Hazel A. PREUSS and Edgar F. Preuss, her husband, Appellees, v. SAMBO'S OF ARIZONA, INC., Appellant.

No. 15335.

Supreme Court of Arizona, In Division.

Oct. 8, 1981.

Rehearing Denied Nov. 17, 1981.

Black, Robertshaw, Frederick, Copple & Wright by Jon R. Pozgay, Phoenix, for appellant.

G. David Gage, Phoenix, for appellees.

HAYS, Justice.

This is an appeal from a judgment entered on a jury verdict against Sambo's of Arizona, Inc. (Sambo's) in a personal injury action brought by Hazel and Edgar Preuss (plaintiffs). We have jurisdiction pursuant to 17A A.R.S. Rules of Civil Appellate Procedure, rule 19(e).

The facts, viewed in a light most favorable to sustaining the verdict, are as follows. In November of 1975, Hazel Preuss visited a Sambo's Restaurant located in Mesa, Arizona. As she approached the entrance she observed some rocks on the right side of the walkway, so she moved to the left and proceeded up the left side of the entrance ramp. Before she reached the door, she slipped on what she thought was a small rock and fell, sustaining injuries to her right arm and shoulder. Mrs. Pruess testified that she did not see the rock at the time of the fall but assumed she had fallen on a rock because the object she stepped on was hard.

A planter containing river rock was located to the right of the entrance. Because patrons occasionally walked through the planter, small rocks were often kicked up or tracked onto the entrance ramp. To prevent patrons from walking across the planter to the doorway, Sambo's placed railroad ties between the ramp and the planter. Additionally, Sambo's employed a maintenance man to clean the parking lot every morning and check the front walkway for debris throughout the day. Despite these measures, Sambo's manager testified that it was not uncommon to find rocks in the parking area but attributed their presence to construction vehicles whose drivers frequented the restaurant.

There was no evidence presented as to how the rock came to rest on the entrance ramp or how long it had been there. Also, in the six years Sambo's had been in business at this location no one else had ever fallen on a rock.

At the close of plaintiffs' case, Sambo's moved for a directed verdict. This motion was denied. Sambo's renewed the motion after the verdict in the form of a motion for judgment notwithstanding the verdict, which was also denied. This appeal followed. Sambo's argues that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. It contends that plaintiffs failed to prove that Sambo's had actual or constructive notice of the rock's presence since they failed to establish where the rock came from, how it got there and, as Sambo's emphasizes, how long it had been there.

The law is clear in Arizona that the proprietor of a business is under an affirmative duty to make the premises reasonably safe for use by invitees; however, he is not an insurer of their safety and is not required to keep the premises absolutely safe. Berne v. Greyhound Parks of Arizona, Inc., 104 Ariz. 38, 448 P.2d 388 (1968). With respect to slip-and-fall cases, the mere occurrence of a fall on the business premises is insufficient to prove negligence on the part of the proprietor. Walker v. Montgomery Ward & Co., 20 Ariz.App. 255, 258, 511 P.2d 699, 702 (1973); see also Forbes v. Romo, 123 Ariz. 548, 601 P.2d 311 (App.1979). As noted in Walker,

"the plaintiff must prove either, 1) that the foreign substance or dangerous condition (was) the result of defendant's acts or the acts of his servants, or 2) that defendant had actual knowledge or notice of the existence of the foreign substance or dangerous condition, or 3) that the condition existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it (i. e., constructive notice)."

20 Ariz.App. at 258, 511 P.2d at 702.

With respect to the notice requirement, the notice must be of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. McGuire v. Valley National Bank of Phoenix, 94 Ariz. 50, 381 P.2d 588 (1963). Similarly, the most important question in establishing constructive notice of a dangerous condition is the length of time that a given foreign substance has been present. Walker v. Montgomery Ward & Co., supra.

Application of the evidence in this case to the proof requirements set out in Walker leads us to conclude that the plaintiffs failed to establish an actionable case of negligence against Sambo's. The first proof requirement refers to situations in which the foreign substance is related to the defendant's business. The foreign substance may be a product sold by the business, see, e. g., Rhodes v. El Rancho Markets, 4 Ariz.App. 183, 418 P.2d 613 (1966) (slip-and-fall on vegetable), or may be some object incidental to the business, see, e. g., Vreeland v. State Board of Regents, 9 Ariz.App. 61, 449 P.2d 78 (1969). However,

"(t)he mere presence of a foreign substance does not raise an inference or a question of fact as to whether the substance...