Shutt v. Kaufman's, Inc.

• Decision Date: 04 March 1968
• Docket Number: No. 22030,22030
• Citation: 438 P.2d 501,165 Colo. 175
• Parties: Lucinda SHUTT, Plaintiff in Error, v. KAUFMAN'S, INC.and Wohl Shoe Company, Defendants in Error.
• Court: Colorado Supreme Court

Page 501

438 P.2d 501

165 Colo. 175

Lucinda SHUTT, Plaintiff in Error, v. KAUFMAN'S, INC.and Wohl Shoe Company, Defendants in Error.

No. 22030.

Supreme Court of Colorado, En Banc.

March 4, 1968.

Murray, Baker & Wendelken, Gerald W. Bennett, Colorado Springs, for plaintiff in error.

Donald E. La Mora, Colorado Springs, for defendants in error.

KELLEY, Justice.

The parties appear here in the same order as they appeared in the trial court. Kaufman's, Inc., was a defendant below. At the conclusion of the evidence, the defendants' motion to dismiss was granted by the trial court as to Kaufman's, Inc., and denied as to Wohl Shoe Company. The plaintiff joined in the motion as to Kaufman's, Inc. Although it was designated a defendant in error and its name was carried throughout the error proceedings and on the briefs, Kaufman's is not a proper party in the proceedings here.

Plaintiff's claim is for damages for personal injuries, the result of being struck by a falling object while trying on shoes in the defendant's shoe store. The questions of liability and damages were submitted to a jury which returned a verdict in favor of the defendant. From a denial of her motion for new trial the plaintiff sued out this writ of error.

Plaintiff's grounds for reversal all involve questions arising out of the application of the doctrine of Res ipsa loquitur. One phase of alleged error relates to either instructions given or tendered and refused, while the second phase involves the failure of the trial court to direct a favorable verdict for the plaintiff as to liability.

In short, the plaintiff, although having convinced the court that the doctrine of Res ipsa loquitur applied, now objects to the manner in which it was applied. On the other hand, the defendant maintains that under the circumstances of this case the doctrine of Res ipsa loquitur is not applicable.

The threshold question, therefore, is whether under the circumstances there should have been any instructions given in reference to the doctrine of Res ipsa loquitur. An examination of prior pronouncements of this court indicates that a careful analysis of the doctrine or rule and the evidence is necessary to determine that question.

Turning for the moment to the physical background in which the accident arose, we find that the defendant occupied a portion of the ground floor of Kaufman's department store which it leased for the retail sale of shoes. The relevent furniture and fixtures consisted of thirty-three customer chairs; a combination formica topped display table with attached shelves (three in number), rising to a total height of some five or six feet; and two identical stands, each having a light metal tripod base, a lucite upright 'pole,' at the end of which was mounted an adjustable metal grating or platform for the display of a pair of ladies shoes, the over-all height of which was about fourteen inches.

Thirty of the customer chairs were lined up against the east and north walls of the shoe department. Near the center of the area the remaining three chairs were faced into the area so that the chairs formed a 'U'. The display table was situated immediately in back of the three chairs, a distance of a few uncertain inches. The two stands sat on the top shelf of the display table, one near each end, and approximately above the two end chairs. A silk scarf was draped over each stand and a pair of shoes rested on each platform.

The plaintiff entered these premises during the morning hours of the fateful day. At that time there were two employes and another customer in the shoe department.

Upon entering, the plaintiff went to a display table, other than the one above described, and, while inspecting a pair of shoes, the manager, a Mr. Kambanos, approached her, asked if he could be of assistance, and suggested that she sit down. The plaintiff complied, selecting one of the end chairs of the three in the center of the room. Kambanos selected a pair of shoes for plaintiff to try. In order to examine them, she walked to a nearby mirror and then returned to sit in the same chair. As she sat down the chair apparently bumped the display table with sufficient force to cause the shoe stand immediately above her chair to topple off the shelf and strike the plaintiff on the side of her head, thereby causing the injury of which complaint is made. However, the identical shoe stand at the opposite end of the top shelf did not fall.

In is the plaintiff's contention that the foregoing factual situation required the invocation of the doctrine of Res ipsa loquitur, relying heavily upon Chapman v. Redwine, 149 Colo. 515, 370 P.2d 147; Weiss v. Axler, 137 Colo. 544, 328 P.2d 88; Scott v. Greeley Joslin Store Co., Inc., 125 Colo. 367, 243 P.2d 394. On the other hand, the defendant asserts that just the opposite is true. Defendant relied on Zimmerman v. Franzen, 121 Colo. 574, 220 P.2d 344, and ...