Reiser v. Abramson

• Decision Date: 24 January 1972
• Docket Number: No. 127,127
• Citation: 264 Md. 372,286 A.2d 91
• Parties: Blanche REISER v. Albert ABRAMSON t/a Blair Towers Apartments.
• Court: Maryland Court of Appeals

Page 372

264 Md. 372

286 A.2d 91

Blanche REISER v. Albert ABRAMSON t/a Blair Towers Apartments.

No. 127.

Court of Appeals of Maryland.

Jan. 24, 1972.

Allan Sosslau, Chevy Chase (Stanley L. Lipshultz and Friedman & Lipshultz, Chevy Chase, on the brief), for appellant.

William H. Clarke, Rockville (Matthew J. Kastantin, Rockville, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

SMITH, Judge.

Appellant, Blanche Reiser (Mrs. Reiser), complains here because her claim against appellee, Albert Abramson t/a Blair Towers Apartments (Abramson), for damages sustained in a fall on Mother's Day, 1970, in appellee's apartment house was taken from the jury on two bases, contributory negligence and failure to show negligence on the part of the defendant. We shall reverse the ensuing judgment and remand for trial.

Mrs. Reiser apparently slipped as a result of water on the floor. The incident occurred in the seventh floor lanundry room. Mrs. Reiser's version of the accident came in response to a question as to whether she looked around the area where she fell to see why she fell. She replied:

'Well, I guess. I laid on the floor for a few minutes and then I turned my head to see what had happened because I was so dazed and it was such a shock. * * * I noticed there was water coming from the first laundry machine. * * * It seemed to be coming from the first machine. * * * I was in considerable pain, but it seemed to me it was about a foot square, I would say.'

She did not think the water had a coloration of its own. The laundry facilities were provided for the use of the tenants on that floor and consisted of two washers and two dryers. Mrs. Reiser said she was looking at the floor in front of her when she entered the laundry room, but she did not see the water on the floor prior to her fall. The laundry room was said to have been equipped with ceiling fluorescent lights which lit it more brightly than the hall from which Mrs. Reiser entered, which she claimed affected her vision adversely.

A friend of Mrs. Reiser testified she went over to see Mrs. Reiser as soon as she heard of her injury. The accident was placed as having taken place '(a) little after noon.' It was 'about 1:00 o'clock' on the day in question when Mrs. Reiser called her friend to inform her of the accident. The witness then went there immediately. Travel time consumed approximately five minutes. Out of curiosity, the friend decided to go to the laundry room prior to going to the Reiser apartment. She said that at that time she found a puddle of water on the laundry room floor.

A maid for one of the other tenants in the building noted water on the floor in the laundry room about two or three weeks before Mother's Day and again on the Wednesday immediately before Mother's Day. She claimed to have notified the proper person. Wednesday before Mother's Day in 1970 was May 6. It is conceded that a water pump gasket in one of the washing machines was replaced on May 4, 1970, because of complaints made relative to that machine's leaking.

In ruling upon Abramson's motion for a directed verdict, the trial judge said:

'I have gone over the cases referred to me by counsel for both sides and have considered the evidence presented by the plaintiff and the defendant and find that under the law, as I see it, there was no continuing duty on the part of the apartment house, the defendant herein, to continue to check the washing machine in the seventh floor wash room after it repaired it on the 4th of May, and I find that no notice was given to the defendant and that a directed verdict in its favor would have to be granted on that ground.

'But I also find that there was contributory negligence on behalf of the plaintiff, and I refer to the cases cited.'

She then referred to Hynes v. Hutzler Bros. Co., 261 Md. 345, 276 A.2d 99 (1971), a quotation in that case from Fulton Building Co. v. Stichel, 135 Md. 542, 109 A. 434 (1920), where Chief Judge Boyd said that if the defendant had used his eyes he could have seen the spikes, and to Chief Judge Prescott's comment for the Court in So. Md. Electric Co-op. v. Blanchard, 239 Md. 481, 485, 212 A.2d 301 (1965), 'It is a fundamental principle of negligence law that a person must use his Providence-given senses to avoid injury to himself.' Judge Shook then said:

'In this case the plaintiff herein had used the laundry room before, she lived at the apartment for some little time, she knew the lighting of the halls, she knew the lighting of the washing machine room, laundry room and, certainly, knew the purpose for which the room was used.

'Knowing the reason for which the room was used and the purpose for which the room was used she could reasonably expect that there might be water on the floor.

'So, The Court finds her as a matter of law contributorily negligent, which would bar her from recovery.

'Even if I had not ruled in the first instance that there was no notice to the defendant I would have ruled on this.'

In determining whether the court erred in directing a verdict against Mrs. Reiser we must consider the evidence in a light most favorable to her, resolving all conflicts in her favor, and assuming the validity of all inferences which naturally and legitimately may be drawn from such evidence. A verdict for a defendant must not be granted if there is any legally relevant and competent evidence from which a rational mind can infer a fact at issue. Vroom v. Arundel Gas Co., 262 Md. 657, 659, 278 A.2d 563 (1971).

On cross-examination counsel for Abramson elicited the following from the maid for another seventh floor tenant who testified:

'Q. When you saw the water on the floor was two or three weeks before that Mother's Day; wasn't it? A. Yes, that is right.

'Q. On the Wednesday right before Mother's Day, three or four days before then when you used it, there wasn't any water on the floor? A. There was water on the floor.

'Q. On the Wednesday before Mother's Day? A. Yes.

'Q. What did you do about it? A. I called Mrs. Anderson.

'Q. It was proper lighting there in the laundry room? A. Yes, the lights are bright. They are brighter in the laundry room than they are in the hall.'

Mrs. Anderson was the switchboard operator to whom such matters were normally reported. It follows, therefore, that there was evidence of a defect and of a report of it prior to the instance in question and subsequent to the date on which it was said to have been fixed. It is true, as claimed by Abramson, that the testimony of the maid was somewhat contradictory, but the testimony was not so contradictory as to justify a ruling as a matter of law that it was incredible and should be disregarded. It is to be noted that the trial judge in her ruling did not specify that this testimony could not be believed, but made a finding that no notice was given to the defendant, a finding contrary to evidence in the case.

The burden of proving contributory negligence is on the defendant. Baltimore & O. R. R. v. Plews, 262 Md. 442, 454, 278 A.2d 287 (1971). As we observed in Rogers v. Frush, 257 Md. 233, 239, 262 A.2d 549, 552 (1970), 'It is not every action on the part of a litigant which an opponent by way of 'second guessing' or hindsight may successfully label as contributory negligence.' Also, as this Court said in Abraham v. Moler, 253 Md. 215, 252 A.2d 68 (1969):

'Contributory negligence is an affirmative defense which was available to appellants and they had the burden of proving not only that a reasonably prudent person would, in the circumstances, have taken certain precautions but also that Mrs. Moler failed to take those precautions and that her...