Rumsey v. Great Atlantic and Pacific Tea Co.
| Decision Date | 27 November 1967 |
| Docket Number | Civ. A. No. 34266. |
| Parties | Florence RUMSEY v. The GREAT ATLANTIC AND PACIFIC TEA CO., Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
William C. Archbold, Jr., Chester, Pa., for plaintiff.
L. Carter Anderson, Philadelphia, Pa., for defendant.
Florence Rumsey recovered a $20,000 verdict against defendant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), for injuries sustained when she slipped on a piece of lettuce leaf and fell in one of defendant's supermarkets. Defendant has moved for judgment n. o. v. The question presented by the motion is whether there is sufficient evidence of negligence to sustain the verdict, more particularly whether there is evidence that the substance on which she slipped had been on the floor for a sufficient period of time to charge defendant with notice of its presence.
Viewing the evidence in the light most favorable to the plaintiff, as we are required to do in considering a motion for judgment n. o. v., Morris Brothers Lumber Company v. Eakin, 262 F.2d 259 (3d Cir. 1959), the evidence is that Florence Rumsey slipped on one of several (at least five) fragments of lettuce leaf, (ranging from about the size of a half dollar to 2 or 3 inches in diameter), which were lying in a one square foot area of an aisle of the supermarket at a point distant from the produce section; the fragments appeared old, brown and wilted; the accident happened at about 2:15 p. m.; the porter whose job it was to keep the store clean had gone off duty at 2:00 p. m.
The crucial question is whether the brown and wilted appearance of the fragments of lettuce1 affords adequate basis for a reasonable conclusion that the lettuce had been on the floor long enough for the defendant, in the exercise of reasonable care, to have discovered and removed it.
Under Pennsylvania law liability may be established by circumstantial evidence and it is no longer necessary to exclude all reasonable inferences inconsistent with liability in order to do so. If the evidence, direct or circumstantial, is such that it will support a reasonable conclusion of liability, the matter is for the jury, but the jury may not be permitted to reach its verdict on the basis of speculation. Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 153 A.2d 477 (1959).
Applying the standard laid down in Smith, the fact that the fragments of lettuce were brown and wilted does not logically support the conclusion that the lettuce had been on the floor for a sufficient period of time to charge defendant with notice. The tortured reasoning in plaintiff's argument that the fact supports the conclusion demonstrates that the jury could not have arrived at the verdict in plaintiff's favor without a great deal of speculation. The argument is that the lettuce in question must have been on sale in defendant's supermarket; that the jury could infer that "brown lettuce leaves were not for sale" in the supermarket, therefore the lettuce must have been fresh when it fell to the floor; that "the length of time it takes a lettuce leaf to turn brown is not properly an area for expert testimony * * *, but * * * is a matter of human experience well within the knowledge of every Juror * * *" (Plaintiff's brief, pp. 8-9); and that the jury could conclude that the defendant should have discovered and removed the lettuce in whatever unspecified period of time it takes fresh lettuce leaves to become brown and wilted.
It is apparent from plaintiff's argument that a number of links were necessary to connect the fact and the conclusion. There was no evidence from which the jury could properly fashion those links. The jury was left to assume that the lettuce was fresh when it fell to the floor and that it became brown and wilted while on the floor. This, in turn, required the jury to find, without any evidentiary basis for doing so, that the defendant stocked and sold only fresh lettuce, or more accurately, unblemished lettuce absolutely free of any deteriorated or wilted spots. The jury had to assume or speculate that a customer had not abused or bruised the lettuce in any manner between the time it was removed from the display counter until it made its way to the point on the floor where it was found. Without expert testimony and without evidence as to the degree of freshness of the particular head or heads of lettuce from which these fragments came, and without evidence as to how the lettuce had come to be torn into fragments, or to what conditions of heat, cold, humidity, etc., or to what handling it had been subjected, the jury could only speculate as to the period of time which might have been involved in the deteriorating process.
Pennsylvania cases dealing with falls on foreign substances have permitted the issue of constructive notice to go to...
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