Safeway Stores, Inc. v. Keef

• Decision Date: 19 July 1966
• Docket Number: No. 40478,40478
• Citation: 1966 OK 140,416 P.2d 892
• Parties: SAFEWAY STORES, INCORPORATED, a corporation, Plaintiff in Error, v. Charles H. KEEF, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 892

416 P.2d 892

1966 OK 140

SAFEWAY STORES, INCORPORATED, a corporation, Plaintiff in Error, v. Charles H. KEEF, Defendant in Error.

No. 40478.

Supreme Court of Oklahoma.

July 19, 1966.

Syllabus by the Court

1. In passing upon alleged error in overruling defendant's demurrer to plaintiff's evidence and request for directed verdict, the evidence will be construed in the light most favorable to plaintiff and where there is any evidence or reasonable inferences from the circumstances reasonably tending to establish a cause of action or to sustain a jury's verdict and a judgment based thereon, such judgment will be sustained on appeal unless shown to be contrary to law.

2. A storekeeper owes customers the duty to exercise ordinary care to keep aisles, passageways and such other parts of the premises as are ordinarily used by customers in a reasonably safe condition, and to warn customers of dangerous conditions upon premises which are known or which reasonably should be known to the storekeeper, but not customers; that storekeeper is not an insurer; and that the question of whether, in a given case, the storekeeper has been negligent in respect to his duty is usually a question of fact for the jury.

3. Before the court will reverse a judgment based on the verdict of a jury because of the giving or refusal to give instructions it must clearly appear that the instructions given or refused have caused a miscarriage of justice. This question is to be determined as much by the evidence before the jury as by the abstract accuracy of the language used or refused.

Appeal from District Court of Oklahoma County; Glen O. Morris, Judge.

Defendant in error recovered a judgment for damages for personal injuries against plaintiff in error. Plaintiff in error appeals from the order overruling its motion for a new trial. Judgment affirmed.

Monnet, Hayes, Bullis, Grubb & Thompson, by Henry B. Taliaferro, Jr., Oklahoma City, for plaintiff in error.

Barry & Berry, by Howard K. Berry, Jr., Oklahoma City, for defendant in error.

IRWIN, Justice.

The parties will be referred to as they appeared in the trial court.

On August 21, 1961, at approximately 5:45 P.M., plaintiff, while a customer in defendant's store, allegedly stepped on a piece of banana, slipped and fell, and sustained personal injuries. Thereafter he commenced proceedings to recover damages for the personal injuries sustained as a result of the accident.

At the close of plaintiff's evidence, the trial court overruled defendant's demurrer thereto, and at the close of defendant's evidence, overruled defendant's motion for a directed verdict. The jury returned a verdict for plaintiff and judgment was rendered accordingly. Defendant has appealed from the the order overruling its motion for a new trial.

PROPOSITION I

Defendant contends the trial court erred in overruling its demurrer to plaintiff's evidence and motion for a directed verdict because there is no evidence of negligence on its part.

To sustain the above proposition defendant argues 'there is no evidence that defendant had actual notice that the banana was on the floor, i.e., no evidence that defendant either put the banana there or knew before the accident that it was there'. Defendant also argues that 'there is no evidence that the floor was not swept or inspected. However, such evidentiary analysis is immaterial because of lack of notice evidence * * * lack of any evidence that the banana was on the floor before the fall to be seen by inspection. Such evidence is the necessary foundation for any contention plaintiff might make concerning inspection by defendant's employees'.

In support of the above argument defendant cites S. H. Kress & Company v. Thompson, 267 Ala. 566, 103 So.2d 171. In the Kress case the plaintiff contended that the inspection of the premises was performed in a negligent manner, not that defendant negligently failed to inspect the premises, and the court held that if there is evidence which tends to show that a foreign substance has been on the floor for a long while, it is proper for a jury to impute negligence to the defendant for not discovering or removing such foreign substance.

The instant action is not based on the grounds that defendant negligently inspected the premises but that it negligently failed to inspect the premises. In this connection, plaintiff alleged, inter alia, that defendant 'failed to inspect its floor at reasonable intervals, so as to discover the banana on the floor, and remove it.'

In J. C. Penney Company v. Campbell, Okl., 325 P.2d 1056, we held that a storekeeper owes customers the duty to exercise ordinary care to keep aisles, passageways and such other parts of the premises as are ordinarily used by customers in a reasonably safe condition, and to warn customers of dangerous conditions upon premises which are known or which reasonably should be known to the storekeeper but not customers; that storekeeper is not an insurer; and that the question of whether, in a given case, the storekeeper has been negligent in respect to his duty is usually a question of fact for the jury.

Plaintiff testified that he entered defendant's store at approximately 5:45 P.M.; that he was looking for the lettuce or vegetable rack and as he turned the corner and took a couple of steps his feet went out and he went down; that defendant's assistant manager (Mr. Latimer) was there immediately and squatted beside him and picked up a piece of banana that was on the floor; that he asked Mr. Latimer what he had fallen on and Mr. Latimer looked at the piece of pulp and said 'It appears to be a piece of banana'; that the piece of banana Mr. Latimer first picked up was immediately left of his left foot, about two or three inches; that there was another piece of banana directly in front, a peel; and that the piece of banana was dirty and over-ripe and had been squashed. Plaintiff further testified that '* * * I got up and brushed myself off, where I fell on the floor, brushed my hands. The floor was dirty. I brushed the dirt off my hands and we moved to the front of the store.'

Additional evidence introduced established that plaintiff sustained personal injuries as a result of the fall; and there is evidence that the floor of the produce department where plaintiff sustained his accident had not been swept since 8:30 that morning; that there was no customary or routine sweeping of the produce department except in the mornings; that the store manager and produce manager had left the store about 5:00 P.M., and the assistant manager had the day off; that the man in charge of the store was the 'third man' or an assistant manager of the store; that he and only five other employees were at the store at the time of the accident; and that none of defendant's employees had policed the area to ascertain if any vegetables or foreign matter had fallen on the floor.

We can only conclude that under the circumstances herein presented, the question as to whether defendant exercised ordinary care in respect to his duty to his customers, and in particular, the plaintiff, was a question of fact for the jury. We therefore hold the trial court did not err in overruling defendant's demurrer to plaintiff's evidence and its motion for a directed verdict.

PROPOSITION II

Defendant contends the trial court erred in refusing to give the following instruction:

'You are instructed that in order for the plaintiff to recover herein he must have proved by a proponderance of the evidence that the substance which he contends caused him to fall was placed there by the defendant and that its presence on the floor was a breach of the defendant's duty of exercising reasonable and ordinary care toward the plaintiff. If you should find that the substance on the floor was not placed there by the defendant but was dropped or placed on the floor by some other customer or person, then you must find, before the defendant can be liable, that the defendant knew of its presence there and failed to remove it, or that such substance had been there for so long that the plaintiff, in the exercise of reasonable and ordinary care, should have known of its presence and taken steps to remove it.'

Defendant cites Safeway Stores, Inc., v. Criner, Okl., 380 P.2d 712; and Owen v. Ktterman, 178 Okl. 483, 62 P.2d 1193. In the Ktterman case we held that in order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to know of it.

Both of the above cases were cited in Safeway Stores, Incorporated v. Feeback, Okl., 390 P.2d 519, where we held that a customer of a retail store injured in a fall caused by slipping on vegetables lying on the store floor may not recover damages from the owner without proof that such vegetables were negligently left there by...