Safeway Stores, Inc. v. Dobbs

• Decision Date: 14 February 1967
• Docket Number: No. 41289,41289
• Citation: 424 P.2d 55
• Court: Oklahoma Supreme Court
• Parties: SAFEWAY STORES, INC., and H. O. Penney, Plaintiffs in Error, v. Minnie DOBBS, Defendant in Error.

Page 55

424 P.2d 55

1967 OK 39

SAFEWAY STORES, INC., and H. O. Penney, Plaintiffs in Error, v. Minnie DOBBS, Defendant in Error.

No. 41289.

Supreme Court of Oklahoma.

Feb. 14, 1967.

Syllabus by the Court

1. A storekeeper must exercise ordinary care to keep that part of his premises ordinarily used by customers in a reasonably safe condition and, because of his superior opportunity to know of dangerous conditions which reasonably would not be known to his customers, when there is, in fact, a condition of danger, he has a duty to warn them; but he is not an insurer, he has a legal right to treat his floors with proper substances, and the fact that a slip and fall occurs does not, of itself, give rise to any presumption of negligence.

2. Where defendant demurs to the evidence and requests a directed verdict, this court will examine the record, and if, upon examination, it is found that there is no evidence reasonably tending to support the verdict and judgment for plaintiff, such judgment will be reversed.

Appeal from the District Court of Bryan County; Ralph Hodges, Judge.

Action by plaintiff, Minnie Dobbs, against the defendants, Safeway Stores, Inc., and H. O. Penney, for damages for injury resulting from a fall in defendants' retail store. From verdict and judgment for plaintiff, and order overruling defendant's motions for new trial, defendants appeal. Reversed.

James W. Batchelor, Durant, for plaintiffs in error.

Jake Hunt, Oklahoma City, for defendant in error.

JACKSON, Chief Justice.

This is an appeal by defendants, Safeway Stores, Inc., and H. O. Penney, the manager of the Safeway Store in Durant, Oklahoma, from verdict and judgment for plaintiff, Minnie Dobbs, and from order overruling motion for new trial, in an action for damages resulting from a fall suffered by plaintiff in the Durant store.

Defendants argue, among other things, that the court erred in overruling defendants' demurrer to the evidence and motion for directed verdict, thus squarely presenting the question of the sufficiency of the evidence to support the verdict.

Plaintiff testified that she entered the store carrying some soda pop bottles. She said that 'I * * * started to turn and go deposit my bottles and my left foot slipped--felt like ice under it, and so when it slipped why the other one did too and I got a fall'. Her sister, who was with her at the time, did not see the actual fall, and did not later inspect the floor. No witness except Mrs. Dobbs testified to the presence of the slippery spot. It may be conceded, however, in view of her testimony, the existence of the slippery spot is supported by competent evidence.

In this case it was the theory of plaintiff that defendants created the dangerous condition by following improper floor-waxing procedures on the Saturday night preceding the accident on Wednesday.

On this point the record shows that defendants used Waxcraft HN--2000 Heavy Duty Maintenance Wax on their floors, and that they diluted it to a solution consisting of two-thirds wax and one-third water. The uncontroverted evidence was to the effect that the lower the proportion of wax in the solution used, the less slippery the floor would be. It was the position of plaintiff that under recommended and approved procedures, defednant should have procedures, defendant should have seven-eights water.

The 'Waxcraft Maintenance Manual', containing the approved and recommended procedures to be followed in using the HN--2000 wax, was introduced in evidence. Among other things, it shows that two procedures were recommended, which may be designated as the 'damp mopping' procedure and the 'light scrubbing' procedure. The first one was a 'touch-up' procedure and consisted of going over the floors with a damp mop, using a solution of hot water and 8 ounces (about 1 pint) of the wax per gallon of water. Under this procedure, no cleanser was used and the old wax was not taken off the floor.

The uncontroverted evidence shows that the procedure followed by defendants on Saturday night preceding the accident was the 'light scrubbing' procedure. The recommendation in the manual was that the floor 'should be scrubbed with a mild cleaner solution, rinsed, and a thin coat of HN--2000 was applied once a week'. There was no recommendation that the wax be diluted, and the use of the wax as directed purported to give 'beautiful, safe floors' with 'antislip' qualities. Also, as heretofore noted, the uncontradicted evidence was that the dilution of the wax with water produced a 'less slippery' floor than would be the case if the wax were used without dilution.

The store manager, who witnessed and supervised the Saturday night operation, testified that the regular 'light scrubbing' procedure was used. His description of the operation was as follows:

'Well, like I say, I designate employees to do the waxing and mopping and they have a solution of cleaner that is diluted and in a bucket, applied to the floor. Well, this solution is a soapy substance. You apply it to the floor in a wet manner with a mop the same as your wax. You let it set on the floor from ten to fifteen minutes. That...