Sapp v. W. T. Grant Co.

• Decision Date: 17 July 1959
• Citation: 172 Cal.App.2d 89,341 P.2d 826
• Court: California Court of Appeals Court of Appeals
• Parties: Geraldine SAPP, Plaintiff and Respondent, v. W. T. GRANT COMPANY, a corporation, Defendant and Appellant. Civ. 18440.

Page 826

341 P.2d 826

172 Cal.App.2d 89

Geraldine SAPP, Plaintiff and Respondent, v. W. T. GRANT COMPANY, a corporation, Defendant and Appellant.

Civ. 18440.

District Court of Appeal, First District, Division 2, California.

July 17, 1959.

Mullally & Wines, Oakland, for appellant.

Smith & Parrish, Oakland, for respondent.

O'DONNELL, Justice pro tem.

On January 29, 1957, plaintiff, while shopping at defendant's variety store, stepped on a spool of thread lying in one of the aisles and was thrown to the floor, receiving physicial injuries. She brought this action for damages. The jury returned a verdict in her favor on which judgment was entered. Defendant appeals from that judgment on the sole ground that the evidence is insufficient to justify the verdict.

The store building is about 200 feet long and about 100 feet wide. There are aisles and cross-aisles throughout the store. There were 37 employees of defendant on duty on the day of the accident. The store is operated partially on a self-service basis, that is, while clerks are available to serve the customers still a customer is free to take a desired article from a counter or shelf and take it directly to the cashier to complete the purchase.

That it was a spool of thread on which plaintiff stepped, causing her fall, and that it came from the shelves of defendant's store are facts that find substantial support in the evidence and are not strenously disputed by defendant. Plaintiff testified that when she slipped her foot went forward 'right up from under me.' A spool of thread was found, immediately following the accident, about three feet in front of where plaintiff lay. The thread was a brand carried by defendant. The aisle in which plaintiff fell was in the notions department. The thread display was in the notions department and is, according to the testimony of one witness, only four or five feet from where plaintiff fell. Defendant's arguments are directed principally to the contention that there is no evidence to show how the spool came to be on the floor, nor is there any evidence to show how long it had been there before plaintiff stepped on it.

It is not disputed that plaintiff was an invitee of defendant while shopping in the latter's store. Defendant therefore owed plaintiff the duty of exercising ordinary care to keep the premises in a safe condition. Tuttle v. Crawford, 8 Cal.2d 126, 63 P.2d 1128.

There is no evidence in the case from which it can be inferred that the spool was dropped by one of defendant's employees, rather than by a customer of the store. Plaintiff having failed to sustain her burden of proof in that regard the liability of defendant depends on whether or not the evidence brings the case within the following rule:

'Where the dangerous condition is brought about by natural wear and tear, or third persons, or acts of God or by other causes which are not due to the negligence of the owner, or his employees, then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the conditions, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.' Hatfield v. Levy Brothers, 18 Cal.2d 798, 806, 117 P.2d 841, 845.

And in Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 607, 184 P.2d 708, 712, the court says: 'It is generally a question of fact for the jury as to whether, under all the circumstances, the defective condition existed long enough so that a reasonable man exercising reasonable care would have discovered it.' Thus, in the Louie case it appeared that plaintiff slipped on a pool of syrup that had been spilled on the floor of defendant's grocery store. The evidence was that no employee of defendant had examined this area for from 15 to 25 minutes before the accident. The court held that whether the dangerous condition existed long enough so that a person exercising ordinary care would have discovered it was a question for the jury. In Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 276 P.2d 118, plaintiff while shopping in defendant's stores slipped on a banana. There was evidence that the banana may have been on the floor for from 30 to 45 minutes. Again it was held that whether defendant should have discovered and removed the banana within this time was a jury question.

Returning to a discussion of the facts of the case at bar, it appears that the notions department was in charge of a Mrs. Whitman. She was the only employee assigned to that department. It further appears that each clerk was allowed a twenty minute 'coffee break' during the day. It was the established procedure, as testified to by Mr. Rawsen, the store manager, that when a clerk was going on her coffee break she informed one of the girls in one of the...