Strack v. Great Atlantic & Pac. Tea Co.

• Decision Date: 09 May 1967
• Citation: Strack v. Great Atlantic & Pac. Tea Co., 150 N.W.2d 361, 35 Wis.2d 51 (Wis. 1967)
• Parties: Nellie A. STRACK, Respondent, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellant.
• Court: Wisconsin Supreme Court

Page 361

150 N.W.2d 361

35 Wis.2d 51

Nellie A. STRACK, Respondent, v.The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellant.

Supreme Court of Wisconsin.

May 9, 1967.

Beckwith & Hollern, Madison, for appellant.

Robert I. Perina, Jasper, Winner, Perina & Rouse, Madison, for respondent.

HALLOWS, Justice.

The safe-place statute requires a place of employment to be kept as safe as the nature of the premises reasonably permits.There is no question that the A & P store was a place of employment or that Nellie Strack was a frequenter thereof or that she slipped on the little Italian prune and suffered certain injuries.The issue is whether A & P had sufficient notice of the presence of the plum on the floor so that it can be held negligent for failing to remove it.Since the owner of a place of employment is not an insurer of frequenters of his premises, Paaske v. Perfex Corp.(1963), 24 Wis.2d 485, 129 N.W.2d 198;Zernia v. Capitol Court Corp.(1963), 21 Wis.2d 164, 124 N.W.2d 86, 125 N.W.2d 705, in order to be liable for a failure to correct a defect, he must have actual or constructive notice of it.Caldwell v. Piggly Wiggly Madison Co.(1966), 32 Wis.2d 447, 145 N.W.2d 745;Krause v. Veterans of Foreign Wars PostNo. 6498(1960), 9 Wis.2d 547, 101 N.W.2d 645;Boutin v. Cardinal Theatre Co.(1954), 267 Wis. 199, 64 N.W.2d 848.The requirement of notice is dictated by the demand of the principles of natural justice and was read into the terms of an otherwise absolute or strict liability duty in the statute.Pettric v. Gridley Dairy Co.(1930), 202 Wis. 289, 292, 232 N.W. 595.

Of course, as we have said several times, constructive notice is neither notice nor knowledge but a shorthand expression, 'the mere trademark of a fiction.'In order to promote sound policy, we attribute constructive notice of a fact to a person and treat his legal rights and interests as if he had actual notice or knowledge although in fact he did not.Uhrman v. Cutler-Hammer, Inc.(1957), 2 Wis.2d 71, 75, 85 N.W.2d 772;Schoedel v. State Bank of Newburg(1944), 245 Wis. 74, 76, 13 N.W.2d 534, 152 A.L.R. 459.In the Boutin v. Cardinal Threatre Co. Case we said that, when safeplace liability is to be ascribed to an owner predicated upon a failure to repair or maintain, the defect must exist long enough for a vigilant owner to discover and repair it.The principle of Boutin applies to the type of defects which occurred beyond the control of the owner such as in that case the surreptitious theft of the cushion from a theatre seat which resulted in injuries when Boutin sat down, or climatic conditions as in Zernia v. Capitol Court Corp., supra, or the unexpected temporary or transitory condition in Krause v. Veterans of Foreign Wars PostNo. 6498, supra.In Uhrman v. Cutler-Hammer, Inc., supra, we made such a distinction and found the facts presented a situation where it was incumbent upon the defendant to take some minimum precaution to see that certain truck ramps were not so stored when not in use as to create a hazard.The failure to take such precaution foreclosed the defendant from asserting lack of notice of the unsafe condition and the defendant was charged with constructive notice of the condition.Thus when an unsafe condition, although temporary or transitory, arises out of the course of conduct of the owner or operator of a premises or may reasonably be expected from his method of operation, a much shorter period of time, and possibly no appreciable period of time under some circumstances, need exist to constitute constructive notice.

We think the finding of the jury has adequate support in the evidence and the A & P is chargeable with constructive notice of the condition of the aisle in its store which rendered it not as safe as its nature would reasonably permit.The liability of A & P rests on two grounds: (1) Its failure to inspect and sweep within a reasonable time before the accident, and (2) the manner in which the Italian prunes were displayed.While there is no direct testimony establishing the Italian prune was on the floor longer than five minutes, the jury could reasonably infer it was there for a much longer period of tiem.There was testimony that it was A & P's policy to check the floors every 10 minutes and to sweep whenever necessary, at least once an hour.However, after the accident the floor manager, in filling out an accident report based on information he received from the produce manager, did not answer two questions in the form relating to when the floor was last swept before the accident and when...