Robelen Piano Co. v. Di Fonzo

• Decision Date: 09 March 1961
• Citation: 3 Storey 346,53 Del. 346,169 A.2d 240
• Parties: , 53 Del. 346 ROBELEN PIANO COMPANY, a corporation of the State of Delaware, Defendant Below, Appellant, v. Marie DI FONZO and Ralph A. DiFonzo, her husband, Plaintiffs Below, Appellees.
• Court: Supreme Court of Delaware

Page 240

169 A.2d 240

3 Storey 346, 53 Del. 346

ROBELEN PIANO COMPANY, a corporation of the State of Delaware, Defendant Below, Appellant, v. Marie DI FONZO and Ralph A. DiFonzo, her husband, Plaintiffs Below, Appellees.

Supreme Court of Delaware.

March 9, 1961.

Reargument Denied April 3, 1961.

Daniel L. Herrmann (of Herrmann & Duffy) and Albert L. Simon, Wilmington, for appellant.

H. Albert Young and Bruce M. Stargatt (of Morford, Young & Conaway), Wilmington, for appellees.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Justice.

This is an appeal from a judgment of the Superior Court entered in favor of the plaintiff, Marie DiFonzo (hereafter Marie), in the amount of $105,000 for personal injuries, and in favor of the co-plaintiff, Ralph DiFonzo, husband of Marie, in the amount of $25,228.70 for medical expenses and loss of consortium.

The accident, which caused Marie's injuries and later gave rise to this lawsuit, occurred in the entranceway of the store of Robelen Piano Company (hereafter Robelen). After the verdict, Robelen moved for judgment in its favor notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied and Robelen appealed.

Before us Robelen renews its two-pronged attack upon the judgment. First, it argues that the judgment should be reversed and the cause remanded with instructions to enter judgment in its favor because of an alleged failure by Marie to prove any act of negligence on its part, or, if negligence was proven against it, that such negligence was not the proximate cause of Marie's injuries. It also argues that the evidence demonstrates that Marie as a matter of law was contributorily negligent. Second, it argues that in the event we refuse to direct the entry of judgment in its favor, we should reverse the judgment and remand the cause for a new trial by reason of certain alleged prejudicial errors which occurred during the trial, and for the further reason of the asserted excessiveness of the verdict. We will consider the two broad attacks upon the judgment in the order stated.

Basically, the first phase of Robelen's attack upon the judgment raises a factual question. We accordingly state the facts. In so doing, however, we state them in the light most favorable to Marie and resolve all disputed factual issues in her favor. We must do this because the question is decided by consideration of whether or not any reasonable version of the facts would permit the jury to resolve the questions of negligence in Marie's favor. If this be the state of the evidence, it was not only proper but necessary for the entire case to be submitted to the jury under proper instructions.

This accident took place on January 19, 1957 in the entranceway to Robelen's store at 710 Market Street in Wilmington at about the point where such entranceway abuts on the sidewalk on Market Street. This entranceway is constructed of unglazed ceramic tile bordered by a six-inch marble strip, and is about thirteen feet in length. On either side of the entranceway are large glass show windows which also front on Market Street. The show windows and the mouth of the entranceway extend across the entire width of Robelen's store. The floor of the tile entranceway inclines from the doorway of the store to the sidewalk of Market Street at a slope of about 5%. This type of construction conformed to the requirements of the Wilmington Building Code and, at the time, was a fairly common type of entranceway for Wilmington Market Street stores.

January 19, 1957 was a clear, dry Saturday. The temperature ranged from 12 degrees at 7:00 A.M. to 31 degrees at 4:00 P.M., never rising above the freezing point. Generally speaking, the sidewalks of Market Street were clear and dry. Snow had fallen in the area about a week or ten days before. Some snow still remained on roofs and window ledges but there was none on the sidewalks.

Robelen's store was on the east side of Market Street and, consequently, its front remained in the shadow throughout the morning. As the sun, however, passed the zenith, the front of Robelen's store came into direct sunlight and snow on the window ledges directly above the north show window of Robelen's store began to melt, causing water to run down in front of the north show window, striking the pavement just north of the northerly edge of the entranceway into the store. The windows and ledges above Robelen's store were not under its control as lessee of the ground floor of the building.

The manager of Robelen's went out to lunch at about 1:15 P.M. passing down the entranceway. At that time he noticed no drip or flow of water from above as he walked across the front of the north show window. He returned from lunch at about 2:00 P.M., at which time he noticed the drip of water from above coagulating on the sidewalk into a patch of ice about two feet in diameter and about one-quarter of an inch thick. The ice thus forming was entirely on the sidewalk proper, one edge of which was distant only a few inches from the northerly side of the entranceway. The manager instructed Robelen's janitor to correct the condition. This, the janitor did by sweeping off what he described as slush into the gutter, and throwing rock salt on the area.

By reason of the application of rock salt, slush formed. By 2:30 P.M. the flow of water from above had greatly increased and was splashing down over the front of the north show window and the adjacent pavement area. The result of the flow of water, the temperature and the rock salt was an accumulation of slush which caused water to back up into a small portion of the northerly side of the entranceway. In addition, slush was kicked or tracked into the entranceway by pedestrian traffic for a distance of six inches or a foot, and extended southerly so as to cover a triangular area of the extreme outer portion of the north side of the entranceway. About four-fifths of the mouth of the entranceway to the south was free of water and slush. Following the application of rock salt to the area, neither the manager nor any other employee of Robelen's inspected the area until after the accident of which Marie complains.

The slippery or icy condition described above was readily apparent to customers of Robelen who approached the entranceway from the north since it was necessary to pass directly in front of it in order to enter the store. In fact, one such customer so approaching the store noticed the condition and led his wife by the arm to the southerly portion of the entranceway in order to avoid what he described on the witness stand as a dangerous and hazardous condition.

On the day in question, Marie and her sister had been shopping in Wilmington for about two hours. At about 2:50 P.M. they came to Robelen's with the intention of purchasing phonograph records. They approached Robelen's from the south, walking abreast, with Marie on the inside or to the east of her sister. They turned into Robelen's entranceway crossing the south or clear portion of it. Marie's sister, who, when turning into the entranceway was closest to the north show window, noticed water, slush and rock salt in the entranceway, but said nothing about it to Marie who, herself, did not notice the condition. Marie and her sister remained in Robelen's about five minutes. As they came out they again were walking abreast but, on this occasion, Marie was on her sister's right or nearest to the north show window. Upon passing out the door, Marie glanced down, noticed nothing and walked down the entrance incline looking in the north show window and talking to her sister. As she came near the sidewalk and the small area of the entranceway covered with water, slush and rock salt, her feet shot out from under her and she fell, suffering the admittedly severe injuries for which she now seeks damages.

This, then, is the version of the facts most favorable to Marie. Robelen argues that this version of the facts fails to demonstrate that it negligently failed to perform any duty of care it owed to its patrons and to Marie, in particular.

Initially, Robelen points out that a storekeeper is not an insurer of the safety of his patrons. With this proposition there can be no dispute. Thompson v. Cooles, 7 W.W.Harr. 83, 180 A. 522. The proper rule to be applied in this case, says Robelen, is that it owed the duty to its patrons and to Marie, in particular, to exercise the same standard of care reasonably prudent storekeepers would exercise under like circumstances to keep the store premises in a reasonably safe condition for the use of customers. Similarly, with this proposition there can be no dispute. Reardon v. Exchange Furniture Store, 7 W.W.Harr. 321, 183 A. 330, affirmed 7 W.W.Harr. 332, 188 A. 704. The standard of care to be exercised by a reasonably prudent storekeeper is to see that such portions of his premises as would naturally and ordinarily be used by his customers are kept in a reasonably safe condition for their use. In the performance of this duty, the storekeeper is charged with responsibility for injuries caused only by defects or conditions of which he had actual notice, or which he would have discovered by such reasonable inspection as other reasonably prudent storekeepers would regard as necessary. Reardon v. Exchange Furniture Store, supra; Fahey v. Sayer, 9 Terry 457, 106 A.2d 513, 49 A.L.R.2d 353; Restatement of Torts, § 343. In this respect, as a matter of fact, a storekeeper does not differ from any landowner who invites the attendance of business guests on his premises.

Robelen argues that there is no evidence in this record that it failed to do anything violating the standard of care required of it for the protection of its customers. It points out that the condition of ice and slush in front of its store came into existence at about 2:00 P.M. and that, immediately, its manager instructed its janitor to eliminate the condition. This...