Sears, Roebuck & Co. v. Reid

• Decision Date: 20 May 1974
• Docket Number: Nos. 1,2,3,No. 49216,49216,s. 1
• Citation: 207 S.E.2d 532,132 Ga.App. 136
• Court: Georgia Court of Appeals
• Parties: SEARS, ROEBUCK & COMPANY v. Prine REID

Page 532

207 S.E.2d 532

132 Ga.App. 136

SEARS, ROEBUCK & COMPANY v. Prine REID.

No. 49216.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 20, 1974.

Rehearing Denied June 17, 1974.

Perry, Walters, Lippitt & Custer, Henry C. Custer, Albany, for appellant.

D. C. Campbell, Jr., Albany, Thad Gibson, Leesburg, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Prince Reid brought suit against Sears, Roebuck & Company seeking to recover for injuries he received when he slipped and fell on a wet spot while entering Sears store in Albany. The case was tried before a jury, resulting in a verdict for plaintiff.

The evidence reveals that plaintiff, who had been a frequent visitor to Sears and was familiar with the premises, had been shopping downtown in Albany on the morning of the occurrence. He testified that 'it was a blowing rain before I got there, but it was drizzling when I got there (to Sears).' He stated that he knew that people walking up and down the street that morning got rain on their clothing, raincoats, and shoes, and that when they entered Sears' door the rain blew in. He knew that his shoes were wet and needed no sign to caution him to this effect. He entered the store through double doors and proceeded across a 5 10 non-skid rubber mat recessed so as to be level with the floor, and as he stepped from the mat to the main floor surface both feet went out from under him and he landed on his buttocks. His back and arms were wet from the fall, and there was a puddle of water on the floor. When Reid entered the store he saw that the mat was wet, but because of people going in and out he did not see the water on the floor until just as he fell.

A saleslady for Sears testified that she saw plaintiff fall; that he 'slid and set down,' and that the floor 'was damp' but that she saw no puddle of water to be mopped up.

Sears appeals with nine enumerations of error complaining, inter alia, of the denial of its motions for directed verdict made at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, and of the denial of its motion for judgment n.o.v. Held:

The evidence, construed in a light most favorable to plaintiff, is wholly insufficient to support a finding of negligence attributable to Sears. There is no evidence of improper construction of the floor or that it was inherently dangerous. The record is silent as to methods, materials, and time of cleaning, waxing or polishing the floor. There is no evidence that it was naturally slick or rendered so by any acts of Sears. Assuming that plaintiff did not slip because of his own wet shoes, the most that can be said is that his fall was caused by the presence of rainwater on the floor blown in by the wind or tracked in by others. However, there is no evidence that Sears had actual knowledge of it, nor is there any evidence as to how long the floor may have been wet.

'The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.' 20 RCL 56, § 52. Under this record the condition of the weather affords the only basis upon which Sears could be charged with constructive knowledge of the wet floor. However, it is clear that Sears' knowledge in this respect was not superior to that of plaintiff, and no sufficient basis for recovery appears under the evidence adduced here. "This court has held . . . that a business proprietor cannot reasonably be expected to prevent the presence of some water on a normal floor during a period of time when it is continually raining. Gibson v. Consolidated Credit Corp., 110 Ga.App. 170(2)(c), 138 S.E.2d 77; Card v. Chichester's Baconsfield Pharmacy, 111 Ga.App. 358, 141 S.E.2d 790; Angel v. Varsity, Inc., 113 Ga.App. 507, 148 S.E.2d 451.' Bryant v. Rucker, 121 Ga.App. 395, 396, 173 S.E.2d 875, 876.' Holtzclaw v. Lindsay, 122 Ga.App. 703, 704, 178 S.E.2d 561, 562. Accord: Hill v. Davison-Paxon Co., 80 Ga.App. 840, 57 S.E.2d 680; Conaway v. McCrory Stores Corp., 82 Ga.App. 97, 60 S.E.2d 631; Stanton v. Grubb, 114 Ga.App. 350, 351(2), 151 S.E.2d 237; Winters v. Morrison's Cafeteria, 121 Ga.App. 98, 172 S.E.2d 878. Cf. Roberts v. Bradley, 114 Ga.App. 262, 150 S.E.2d 720; Auerbach v. Padgett, 122 Ga.App. 79, 176 S.E.2d 193.

This is not a situation for application of the doctrine of res ipsa loquitur, for it is just as reasonable to conclude that the plaintiff fell because of the condition of his shoes or because of something on them, as it would be to conclude that it may have resulted from some dereliction of duty by Sears in keeping its floor in a reasonably safe condition, of which there is no proof. See and compare Miller v. Gerber Products Co., 207 Ga. 385, 387, 62 S.E.2d 174.

The denials of Sears' motions for directed verdict and for judgment n.o.v. are reversed with direction that final judgment be entered in its favor. Code Ann. § 81A-150.

Judgments reversed with direction.

BELL, C.J., PANNELL, P.J., and DEEN, QUILLIAN, CLARK and STOLZ, JJ., concur.

EVANS, J., dissents.

WEBB, J., disqualified.

EVANS, Judge (dissenting).

The majority opinion sets aside plaintiff's verdict and judgment, and holds that defendant's motion for directed verdict should have been granted, and orders that judgment be entered for defendant in the lower court. I respectfully dissent.

Plaintiff entered the store of Sears, Roebuck & Company in Albany, Ga., through double doors, and immediately inside he stepped upon a rubber mat ten feet wide, which was set into a 1/2 inch recess in the floor, the top surface being level with the floor. It was crowded because people were rushing into and out of the store at the entrance. When plaintiff stepped off the mat and onto the floor surface both of his feet slipped from under him, causing him to fall to the floor. It had been raining, and when plaintiff fell and got up he discovered his back and arms were wet, and there was a puddle of water on the floor near the place where he fell.

Let us pause at this point. Both the defendant and the majority opinion contend that the cause of plaintiff's fall was water upon or dampness of the floor, which water had been tracked inside by customers.

But the undisputed evidence in this case does not support that contention. There is an issue of fact for determination by a jury as to what actually caused plaintiff to fall, albeit no witness testified the dampness caused the floor to be slippery. The fall could have been caused by any one of three factors, to wit: 1. The maintenance of a slippery floor by defendant. 2. Defendant's allowing the floor to become damp and wet during the rain, tracked in by customers, to the extent that water had formed a puddle, and thus caused the surface of the floor to be slippery. 3. The maintenance of a slippery floor in such condition that dampness and water would enhance its slippery qualities.

Although the evidence showed without dispute that defendant employed five men, whose duties were to maintain the floors in safe condition, nothing whatever had been done since the rain began on that morning to keep the floors safe. Neither the entrance-way nor floors had been mopped one single time after the rain began to fall.

Plaintiff was instructed by defendant to report his injury to personnel, which he did-and afterwards, while leaving the store, at the place where he fell, he saw an employee mopping the damp floor and the accumulated puddles of water.

Plaintiff does not predicate his case on dampness of the floors as the cause of his fall. He bases his case on the contention that his injuries were caused by 'the negligent maintenance of the floor surface in defendant's store.' (Par. 4 of Complaint, Record 3.) If the floor was negligently maintained so that its slippery surface caused plaintiff's fall, he is entitled to recover. No duty whatever rested upon plaintiff to show what caused the surface to be slippery. That was a matter of defense.

It is respectfully asserted that the following principles show that the issues in this case were properly presented to a jury for determination.

1. Directed verdicts are not favored; if there is any issue of fact, it should be decided by the jury; all of the evidence, including all favorable inferences, must be construed most favorably toward the party against whom a verdict has been directed. Curry v. Roberson, 87 Ga.App. 785, 75 S.E.2d 282; Birchmore v. Upchurch, 78 Ga.App. 233, 234, 50 S.E.2d 857; Jones v. Mayor, etc. of Athens, 105 Ga.App. 86(1), 123 S.E.2d 420. A directed verdict is proper only when the evidence demands the verdict and no other verdict could be legally found. Whitlock v. Michael, 208 Ga. 229, 65 S.E.2d 797.

2. Questions of negligence are peculiarly for determination, not by the judge, but by a jury. Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d...