Rhodes v. El Rancho Markets

• Decision Date: 05 October 1966
• Docket Number: CA-CIV
• Citation: Rhodes v. El Rancho Markets, 418 P.2d 613, 4 Ariz.App. 183 (Ariz. App. 1966)
• Parties: Ike RHODES and Vera Rhodes, husband and wife, Appellants, v. EL RANCHO MARKETS, an Arizona corporation, Appellee. * 2250.
• Court: Arizona Court of Appeals

Page 613

418 P.2d 613

4 Ariz.App. 183

Ike RHODES and Vera Rhodes, husband and wife, Appellants, v.EL RANCHO MARKETS, an Arizona corporation, Appellee. ^*

2 CA-CIV. 250.

Court of Appeals of Arizona, Division 2.

Oct. 5, 1966.

Rehearing Denied Oct. 27, 1966.

Review Denied Nov. 22, 1966.

Murphy & Vinson, by John U. Vinson, Tucson, for appellants.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by William E. Kimble, Tucson, for appellee.

HATHAWAY, Judge.

Ike and Vera Rhodes, plaintiffs in the trial court, have appealed from a judgment entered on a verdict directed against them in favor of El Rancho Markets, the defendant below.The Rhodes sought to recover damages for personal injuries sustained by Mrs. Rhodes as the result of a fall in appellee's Speedway El Rancho store.Considering the evidence in a light most favorable to appellants, in view of the directed verdict against them, the facts are as follows: Mrs. Rhodes was doing her Thanksgiving grocery shopping at the Speedway El Rancho store on Tuesday, November 21, 1961.Tuesday was a double stamp day and the store was very busy.She was ready to check-out her purchases when she remembered she needed something in the produce department.Leaving her grocery cart at the check-out stand, she proceeded toward the produce section closest to the check-out area.As she neared the entrance to the produce department, she slipped and fell.She observed a piece of lettuce clinging to the bottom of her shoe and drops of water on the floor nearby.Moisture-generating produce was displayed at the rear of the department.

At the trial, the district supervisor of El Rancho Markets testified that throughout the day fresh produce was uncrated in the produce department and used to replenish the displays; that the floors were cleaned and swept every morning at 6 a.m. by a professional maintenance service; that the store policy required all employees to pick up anything they saw on the floor; that more time was spent sweeping and picking up in the produce department because of the nature of the 'stuff' that falls to the floor; that the area was swept as often as needed, which might have been four to five times an hour and in between times the boys constantly picked things up.There was no proof adduced as to when the floor had been last swept on the morning in question other than the showing of general store policy.

It would appear from the record that the trial judge, guided by McGuire v. Valley National Bank, 94 Ariz. 50, 381 P.2d 588(1963), directed a verdict in favor of the market because of appellants' failure to show that appellee had either actual or constructive notice of the specific piece of lettuce being on the floor.

In McGuire, the plaintiff-tenant slipped on a 'pebble-like substance,' fell and was injured.The trial court's direction of a verdict for the defendant-landlord was affirmed, because the plaintiff failed to prove that the substance had been on the stairway a sufficient length of time to give the defendant actual or constructive notice of the specific condition.The source of the extraneous material seemed to most probably be from the work of an independent contractor, for whose negligence our Supreme Court held the defendant was not liable.

Appellants contend that the appellee is charged with knowledge of a condition created by his employees for the water on the floor, by its very nature and location, would not have been there except for the acts of appellee's employees.The following testimony concerning the water was elicited from Mrs. Rhodes on cross-examination:

'Q I see.If I suggested Mrs. Rhodes, that you told me in your deposition that it was the lettuce and not the water that you slipped on, that would still be your testimony today, would it not?

'A Well, it was water and the lettuce, too, there, but the lettuce was on the bottom of my shoe.'

The appellants claim that, since it is more probable that the appellee's employees caused the accumulation of water, the question of appellee's negligence should have been submitted to the jury.In support of their position they cite usDonoho v. O'Connell's, Inc., 13 Ill.2d 113, 148 N.E.2d 434(1958) where it was held that when a customer slips on a foreign substance which is related to the proprietor's operation and there is circumstantial evidence ¹ from which it could be inferred that the proprietor or its...