Sanchez v. Shop Rite Foods, 569

• Citation: 1971 NMCA 16,82 N.M. 369,482 P.2d 72
• Decision Date: 19 February 1971
• Docket Number: No. 569,569
• Parties: Terry SANCHEZ and Herman Sanchez, her husband, Plaintiffs-Appellants, v. SHOP RITE FOODS, d/b/a Piggly Wiggly Food Market, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 72

482 P.2d 72

82 N.M. 369

Terry SANCHEZ and Herman Sanchez, her husband, Plaintiffs-Appellants, v. SHOP RITE FOODS, d/b/a Piggly Wiggly Food Market,

Defendant-Appellee.

No. 569.

Court of Appeals of New Mexico.

Feb. 19, 1971.

[82 NM 369] James I. Bartholomew, Albuquerque, for appellants.

Clarence R. Bass, Shaffer, Butt & Bass, Albuquerque, for appellee.

OPINION

WOOD, Judge.

This is a slip and fall case. The trial court entered summary judgment in favor of the defendant grocery store. The dispositive issue of plaintiffs' appeal is whether there was a sufficient basis for a summary judgment. We hold there was not and reverse.

At the summary judgment hearing, the trial court considered two items--the deposition of Mrs. Terry Sanchez and the affidavit of Rod Sanchez, identified as the store manager.

According to the deposition, Mrs. Sanchez was in the store as a business invitee. She went to the produce section to get tomatoes. She saw water dripping onto the floor '* * * so I ducked from that little counter and I slipped on that tomato as I turned. * * *' She fell to the floor. She never saw the tomato before she slipped, and didn't know how long it had been there.

There had been other times that Mrs. Sanchez had seen produce items on the floor (lettuce, green chili, grapes), and '* * * other times that the floor hasn't been too clean.' However, she had never slipped on substances on the floor prior to the tomato incident. She had shopped at the store about twice a week for several years, but couldn't recall having seen any mopping or sweeping of the floor in the produce section during that time. The accident happened about 5:45 p.m., the lights were on in the store and Mrs. Sanchez had no trouble in seeing.

It is contended the '* * * deposition does not show that there is any negligence whatsoever on the part of defendant * * *.' We agree there are questions as to the the sufficiency of the deposition to establish a prima facie case against defendant under either a 'pattern of conduct' theory (Garcia v. Barber's Super Mrakets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969)), or a specific act of negligence theory (Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 458 P.2d 843 (Ct.App.1969)). Such questions are not pertinent because plaintiffs, in initially opposing defendant's motion for summary judgment, did not have the burden of establishing a prima facie case. Barber's Super Markets, Inc. v. Stryker, 81 N.M. 227, 465 P.2d 284 (1970); Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970). Until defendant made a prima facie showing that it was entitled to summary judgment, there was no requirement upon plaintiffs to show that a factual issue existed. Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 461 P.2d 415 (1969); Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970).

Defendant, the movant for summary judgment, had the burden of establishing the absence of a material issue of fact and that it was entitled to summary judgment as a matter of law....