Safeway Stores, Inc. v. Bolton

• Decision Date: 10 July 1962
• Docket Number: No. 324,324
• Citation: 229 Md. 321,182 A.2d 828
• Parties: SAFEWAY STORES, INC. v. Helen L. BOLTON et al.
• Court: Maryland Court of Appeals

Page 321

229 Md. 321

182 A.2d 828

SAFEWAY STORES, INC. v. Helen L. BOLTON et al.

No. 324.

Court of Appeals of Maryland.

July 10, 1962.

Hal C. B. Clagett, Upper Marlboro (Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellant.

William E. Brooke, District Heights (Shriver & Brooke, District Heights, on the brief), for appellees.

Before HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

SYBERT, Judge.

The defendant in a personal injury suit complains in this appeal that the trial court erred in refusing to grant its motion for directed verdict or its motion for judgment n. o. v. made on the ground that no legally sufficient evidence of negligence on its part had been shown.

The appellee, Helen L. Bolton (plaintiff below) moved to dismiss the appeal for the reason that appellant, Safeway Stores, Inc. (defendant below) has allegedly failed to set forth in the record extract all matters necessary for the determination of the issue raised in the appeal, as required by Maryland Rule 828. We find that the extract does contain sufficient material to decide the case on its merits and the motion will be denied.

On a June afternoon in 1958 Mrs. Bolton was food shopping in a Safeway store in Laurel, Maryland. The front of the store had four glass windows, each approximately nine feet square. A wind and rain storm had come up and while Mrs. Bolton was standing near one of the check-out counters with her back to the windows a sudden gust of wind hit againt the windows and one of them fell into the store. The shattering glass caused a severe cut in the back of Mrs. Bolton's leg. She sued for her resulting injuries, alleged to be permanent, and her husband sued for expenses and loss of services and consortium of his wife.

At the trial testimony as to what had occurred was given by the manager of the store and two of his employees, in addition to Mrs. Bolton. The manager, Paul E. Kutzner, called by the defendant, testified that each of the window-panes, including the one in question, fitted into a metal frame, with the glass held on the inside of the store by metal strips about three-eighths of an inch wide, secured by screws, at all four edges. In order to install a window-pane it was necessary to remove the metal strip on one side, slide the glass into place, and then screw the metal strip back on to hold it in place. The glass was not sealed in any way, but was held solely by the metal strips. Mr. Kutzner further testified that he was about to enter the store with some carts he had been gathering when a 'big gust suddenly hit the front of the store * * * and just as soon as I got inside the door I seen this window come and shatter.' He said the gust blew a customer past him as he came in the door. He knew of nothing unusual about the window and noted that jagged pieces remained in the frame after the glass had broken. Another employee, Horace Oakes, also produced by the defendant, had not seen the glass at the moment of its breaking, but upon running to the front of the store noted that 'a few pieces' were still hanging at the top of the frame, and also on the sides, which he helped to remove. He said all four sides of the frame were in place and 'the frame looked all right to me', and stated that the same glass had been in the window during the whole seven years he had worked at the store. Matrice Hensley, the employee at the check-out counter where Mrs. Bolton was standing, was called by the plaintiffs and testified that the wind was blowing, that 'I saw the window give' and that 'It came right in'. She further stated that in the course of her duties in putting up signs on the four front windows they would rattle a little and did not seem too tight. She testified that 'you could feel the wind come through the windows when the wind was blowing.' When asked on cross-examination whether she knew of any defects in the glass or frame she answered, 'There was no defects in the window or the frame, no, not to my knowledge.' The essence of Mrs. Bolton's testimony was that the check-out girl had shouted a warning at her and when she turned quickly she 'saw this glass coming down on me.'

At the close of all the testimony a motion by appellant for a directed verdict was granted as to Mr. Bolton but denied as to Mrs. Bolton. The jury returned a substantial verdict for Mrs. Bolton and after the court denied appellant's motion for judgment n. o. v. appellant noted an appeal from the judgment entered against it. Mr. Bolton did not appeal.

Appellant contends that appellee failed to prove that it was guilty of any primary negligence and also that appellee is precluded from relying on the doctrine of res ipsa loquitur because she did not invoke the doctrine in the trial court but attempted affirmatively to prove specific negligence.

The general rule applicable in reviewing a defendant's motion for a directed verdict or for judgment n. o. v. is that we must consider all of the evidence, as well as all natural and reasonable inferences deducible therefrom, in the light most favorable to the plaintiff, and we have done so in this case. Nevertheless, we are forced to conclude that the evidence admits of no reasonable inference of negligence on the part of appellant.

It is well established that since appellee was a business invitee, the appellant owed her a duty to see that its premises were reasonably safe, and to warn her of any dangerous condition known, or which reasonably ought to have been known, to it, but not to the customer. Smith v. Bernfeld, 226 Md. 400, 406, 174 A.2d 53 (1961). However, that case, and the cases there cited, make it clear that the proprietor is not an insurer of the safety of his patrons. Thus, before a customer may recover for injuries sustained on the premises of a storekeeper, he must produce legally sufficient evidence of some condition which constitutes an unreasonable risk to him as a patron, and he must also show a realization on the part of the business inviter of this condition, and the absence of any reason for the inviter to believe that the risk would be realized by the patron. See Evans v. Hot Shoppes, Inc., 223 Md. 235, 239-240, 164 A.2d 273 (1960), and cases there cited.

The only relevant evidence produced on the part of the appellee was the...