River v. Atlantic & Pacific Tea Co.

• Decision Date: 01 June 1961
• Docket Number: Gen. No. 61
• Citation: 31 Ill.App.2d 232,175 N.E.2d 593
• Parties: Velma RIVER, Plaintiff-Appellant, v. ATLANTIC & PACIFIC TEA COMPANY, a Corporation, Defendant-Appellee. F 2.
• Court: United States Appellate Court of Illinois

Page 593

175 N.E.2d 593

31 Ill.App.2d 232

Velma RIVER, Plaintiff-Appellant, v. ATLANTIC & PACIFIC TEA COMPANY, a Corporation, Defendant-Appellee.

Gen. No. 61 F 2.

Appellate Court of Illinois, Fourth District.

June 1, 1961.

John A. Bock, Jr., John R. Sprague, Belleville, for appellant.

Wagner, Conner, Ferguson, Bertrand & Baker, E. St. Louis, for appellee.

HOFFMAN, Justice.

The action in this case was brought to recover for injuries sustained by plaintiff resulting from a fall in the doorway of defendant's store. The jury awarded plaintiff a verdict of $4,000, but the trial judge, upon defendant's post-trial motion, entered judgment notwithstanding for defendant and, in the event of the reversal of such order, awarded defendant a new trial. Plaintiff appeals, asking that her judgment be reinstated.

The salient facts are these: The exit door of defendant's store is suspended above a rubber mat which is secured underneath the door and along its edges by metal stripping. The door opens automatically when one's foot is placed on the rubber mat. The metal stripping on each side of the rubber mat does not go all the way to the door and there join the other stripping at the door. On the contrary, there is a space or gap where there is no metal strip or rubber matting, which gap is approximately 2 1/2"' X 1 1/2"' in dimensions, and of slight, but varying, depth. On the day in question, plaintiff was a customer in defendant's store. She had completed her purchases and was walking from the store with two large bags of groceries, one under each arm. She testified that she first stepped onto the rubber mat with her right foot and then she stepped onto the metal strip with her left foot. She stated that her foot slipped off of the metal strip and into the gap, that her foot went out from under her and she fell. This statement was corroborated by the testimony of her husband. There was no other evidence regarding the exact manner in which plaintiff fell. At the time, plaintiff was wearing leater soled shoes with low heels about 1 1/2"' wide. The weather was dry and there was no evidence of any foreign substance being on the mat, the strip or on plaintiff's shoe.

The primary issue here is whether or not these facts present sufficient evidence of defendant's negligence to submit this cause to the jury.

The plaintiff here enjoyed the status of a business invitee upon defendant's premises. As such, it is generally held that the storekeeper is not the insurer of his customer's safety, but that he does owe the duty of keeping his premises in a reasonably safe condition so that customers will not be injured (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47), and he must provide a safe means of entrance and exit. Todd v. S. S. Kresge Co., 384 Ill. 524, 52 N.E.2d 206. There cannot be liability without fault (Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill.2d 469, 173 N.E.2d 443), but if reasonable men could not agree that the defendant's doorway here was in a safe condition, the cause must go to the jury unless the defect complained of did not contribute of plaintiff's fall.

Thus, the central problem is whether or not the gap or space in the doorway of defendant's premises, which is described above, created a dangerous condition which contributed to plaintiff's fall.

The cases involving customers who fall in business establishments where dangerous or unsafe conditions are alleged to exist are many, and they are found in nearly every jurisdiction. It would serve no useful purpose to recite each and every of these cases in an encyclopedic manner. Although the results in these cases are not always consistent, running through all of them is the general rule that what constitutes a reasonably safe condition depends upon the nature of the use of, or activities conducted in, the building and the circumstances surrounding the particular situation. 65 C.J.S. Negligence § 81. And, if there is positive evidence of defects in flooring, such as holes, worn boards or depressions, and some direct evidence, however slight, which associates plaintiff's fall with that defect, the problem becomes a jury question and verdicts for plaintiffs are usually affirmed. See for example: Swanson v. S. S. Kresge Co., 302 Ill.App. 455, 24 N.E.2d 62 (heel caught on raised metal strip on stairway); Howell v. Kroger Grocery & Baking Co., Mo.App., 178 S.W.2d 101 (slipping upon a worn and cracked threshold, the inner edge of which was commencing to sag); McCafferty v. Great Atlantic & Pacific Tea Co., D.C., 22 F.Supp. 963 (slipping in a 1/2"' depression in the floor near the door); Long v. F. W. Woolworth Co., Mo., 159 S.W.2d 619; Hastings v. F. W. Woolworth Co., 189 Minn. 523, 250 N.W. 362; Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813, and Ellis v. Rosenberg, 188 A. 499, 15 N.J.Misc. 37 (heel caught in small hold in floor); Grigsby v. Morgan & Lindsey, La.App., 148 So. 506 (heel caught in opening where floor boards did not reach a floor level ventilator); Kennedy v. Cherry & Webb Co., 267 Mass. 217, 166 N.E. 562 (toe caught upon a projection over the end of a ramp); Haverkost v. Sears, Roebuck & Co., Mo.App., 193 S.W.2d 357 (tripping over a metal plate projecting 1/8 to 1/4"' above floor). No sound reason can be advanced why a person should be excused from liability for injuries when he permits or invites his patrons to use an unsafe means of ingress and egress to and from his store. Steinberg v. Northern Illinois Tel. Co., 260 Ill.App. 538, 542.

Where, however, the fall occurs upon a floor not having any depression, concavity, hold or other defective condition and there is nothing upon which the jury can reasonably find negligence, it is improper to submit the case to the jury. Robinson v. Southwestern Bell Tel. Co., 26 Ill.App.2d 139, 167 N.E.2d 793; Clark v. Carson Pirie Scott & Co., 340 Ill.App. 260, 91 N.E.2d 452.

In applying the instant facts to the rules above delineated, consideration must be given not only to the small space or gap associated with plaintiff's fall but also to other facts, such as the purpose for which the doorway was designed, and that it was likely to be used by large numbers of persons of varying degrees of physical strength and activity, and of all ages, and that the attention of such persons might very probably at times be diverted by things about them or their vision might be obstructed by large sacks they might be carrying. Actually, the purpose in constructing Actually, the purpose in constructing to enable patrons to carry more and otherwise occupy their arms. Under such circumstances, ordinary care required the defendant not only to see that the doorway's construction was reasonably safe but that it was maintained in that condition. The trial court reached the conclusion that the facts in this case were not legally sufficient to permit any rational inference that defendant had failed to discharge this obligation. With this we cannot agree.

The evidence shows that the rubber mat and doorway to defendant's store had been unchanged for several years prior to this accident and that during that time many hundreds of persons each week had entered and left defendant's store through this doorway. The evidence further shows that as plaintiff left the store with two...