Rhodes v. El Rancho Markets

• Citation: 454 P.2d 1016,9 Ariz.App. 576
• Decision Date: 28 May 1969
• Docket Number: No. 2,CA-CIV,2
• Parties: Ike RHODES and Verda Rhodes, husband and wife, Appellants, v. EL RANCHO MARKETS, an Arizona corporation, Appellee. 591.
• Court: Arizona Court of Appeals

Page 1016

454 P.2d 1016

9 Ariz.App. 576

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

No. 2 CA-CIV 591.

Court of Appeals of Arizona.

May 28, 1969.

Rehearing Denied July 1, 1969.

Murphy & Vinson, by Carl E. Hazlett, Tucson, for appellants.

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

HATHAWAY, Judge.

This appeal arises out of a lawsuit filed to recover for personal injuries sustained when Mrs. Verda Rhodes (hereinafter plaintiff) fell while shopping in the appellee's self-service market. The case was originally tried in the superior court of Pima County and a directed verdict was granted the defendant supermarket at the end of the plaintiff's case. On appeal, we reversed the trial court and remanded the cause for a new trial, Rhodes v. El Rancho Markets, 4 Ariz.App. 183, 418 P.2d 613 (1966). The case was retried and a jury verdict was returned in favor of the defendant. The plaintiff filed a motion for new trial which was denied, hence this appeal.

Mrs. Rhodes slipped and fell while she was walking near the entrance to the produce department in the store. She observed a piece of lettuce clinging to the bottom of her shoe and drops of moisture were on the floor nearby.

The plaintiff sets forth five questions for review. First, it is contended that the trial court erred in refusing to permit the plaintiff's counsel to read certain portions of the store manager's deposition to the jury. The manager of the store at the time of the accident was Harold W. Helms. His deposition was taken on October 31, 1962. The plaintiff contends that the trial court erroneously excluded the deposition, pointing out that if any part of it contained admissible material it should have been admitted under Rule 26(d) of the Arizona Rules of Civil Procedure, 16 A.R.S. ¹

During the course of the trial, Charles Ramsey, district supervisor of El Rancho Market, testified concerning the general operation of the store. He stated that his testimony was based on information which he had secured from an accident report allegedly prepared by Helms. The report indicated that Mrs. Rhodes had fallen on Sunday, November 12, 1961, at 2 p.m. All other evidence indicated that she had fallen on Tuesday, November 21, 1961, at 9 a.m., and the parties subsequently stipulated to the correctness of the latter date. Tuesdays were 'double stamp' days and were very busy starting early in the morning.

The plaintiff offered the following excerpts from the deposition and the trial court refused their admission:

'Q Then you do specifically recall the day in question?

A Yes, it was a Sunday afternoon.

Q Now, this accident took place at approximately 2:00 o'clock in the morning?

A 2:00 o'clock in the afternoon.

Q 2:00 o'clock in the afternoon, and would it be a fair statement to say that the floor was last cleaned before the accident early in the morning of November 12?

A Yes.

Q So you don't clean it, the floor wouldn't be clean from early morning to late afternoon?

A Not necessarily. If there is paper or anything on the floor, the floor is swept. In the produce department, that department is swept anywhere from five to fifty times a day, depending how much green stuff we put out and the condition of it.

Q But on this particular day the floor hadn't been swept?

A That's right.

Q It is possible then that after Mrs. Rhodes slipped and before you got there some employees, following instructions, swept it up?

A No, that is not possible.

Q Why isn't that possible?

A Because of the time element involved from the time I left her to the time I came back, and the fact that we were busy at the time and there was nobody available there to do it.'

The plaintiff argues that the foregoing testimony was admissible on a number of grounds. First, it is submitted that since Mr. Ramsey's testimony was based entirely on the report of Mr. Helms, which was obviously in error concerning the time of the accident, the jury should have been given access to the testimony of the preparer of the report, Helms. The defendant responds, and we believe correctly, that the deposition would be irrelevant in this connection since Ramsey did not testify to any of the details of the accident.

The plaintiff next contends that the testimony shows that the floor had not been swept since early morning and that the store employees were busy and no one was available to sweep. The defendant answers that the testimony is irrelevant because the deposition indicates that the accident Helms was referring to occurred on a different day and at a different time. The defendant offered to stipulate to the time and place of the accident, which stipulation was finally accepted, and it is contended that the trial court properly prevented the plaintiff from creating an ambiguity through admission of the testimony and consequent confusion through the differing accident dates.

Regardless of the date of the accident, Helms believed that he was talking about the plaintiff's fall, in the deposition. The testimony indicates that no one was available to sweep the floor at the time the fall occurred. It would also indicate that when the store employees were otherwise busy they were unavailable for sweeping. Since from this testimony the jury could reasonably conclude that no one was available to maintain the floor in a safe condition, the plaintiff was clearly prejudiced by its exclusion. Cf. City of Tucson v. Holliday, 3 Ariz.App. 10, 411 P.2d 183 (1966); Farnsworth v. Hubbard, 78 Ariz. 160, 277 P.2d 252 (1954).

In McGuire v. Valley National Bank of Phoenix, 94 Ariz. 50, 381 P.2d 588 (1963), it was held that error is not reversible of it does not cause a material defect in the plaintiff's case. Here, there was testimony that the plaintiff slipped on a piece of lettuce--thus providing some evidence that the proximate cause was failure to keep the floor clean. The jury might reasonably have concluded from the unavailability of employees to clean the floor that the defendant was negligent. Exclusion of the deposition therefore requires that we reverse.

The plaintiff next asserts that the trial court erred in refusing to instruct the jury respecting the doctrine of Res ipsa loquitur. It is the ordinary rule in negligence cases that the fact of the occurrence of an accident does not permit an inference of negligence. 'People can get hurt on almost anything.' Cummings v. Prater, 95 Ariz. 20, 26, 386 P.2d 27, 31 (1963).

The doctrine of Res ipsa loquitur constitutes an exception to this general proposition. Literally, the term means 'the thing itself speaks,' and in application the doctrine provides that the occurrence of an accident alone, under prescribed circumstances, may constitute evidence of negligence. Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168 (1934).

In its opinion in O'Donnell v. Maves, 103 Ariz. 28, 436 P.2d 577 (1968), our Supreme Court set forth the conditions which must appear before the doctrine of Res ipsa loquitur may be applied. One of these conditions is:

"(I)t (the accident) Must be caused by an agency or instrumentality within the exclusive control of defendant * * *.' 436 P.2d 579.

Here, the accident was not caused by a single agency or instrumentality, but by an interaction between the manner of the plaintiff's walking, and the coefficient of friction between the bottoms of her shoes and the floor, as affected by a piece of lettuce or some water thereon. Where such is the case then the law, and more importantly good sense, would require that no inference of negligence arise such as might be charged against a particular defendant, because unless it is shown that the control was his, the thing itself Does not speak. It is our opinion that the instruction on Res ipsa loquitur was properly refused.

The trial court refused to give plaintiff's requested instruction No. 15:

'When in a self-service market operation, the customer is expected to handle and examine produce displayed in open bins, the storekeeper must take reasonable protective measures for the benefit of customers who might slip and fall on vegetable matter dropped on the floor by employees or other customers; you may find the defendant negligent if the defendant failed to take such reasonable protective measures; or you may find the defendant negligent if the protective measures taken were not commensurate with the risk of harm to customers of the market.'

The defendant contends that nothing would have been added by the giving of the foregoing instruction, since the essence of the instruction was covered by instructions which were given, including the following:

'Now the owner of a store must use reasonable care to maintain the floors which the public is invited to use in such a condition that under the circumstances of the particular case they are reasonably safe for the customer to use, and a business invitee has the right to rely upon the owner to exercise reasonable care in making the premises safe for her use and has the right to assume that the premises are reasonably safe for her use as such an invitee. A greater duty rests upon one engaged in selling merchandise to discover whether a dangerous condition exists on the premises than devolves upon the invitee who has a right to assume that the premises are reasonably safe for his use.' (Plaintiff's requested instructions Nos. 12 and 17.)

The jury was also instructed concerning the general duty owed by a proprietor to its business invitees, and they were specifically instructed that this duty existed in connection with keeping the floors of the premises in a condition reasonably safe for use by its customers.

The charge to the jury is to be considered as a whole, and where the substance of a requested instruction has been covered by instructions given, it will not be error to refuse to give the requested instruction, notwithstanding that the request...