Tommerup v. Albertson's, Inc.

• Decision Date: 05 February 1980
• Docket Number: No. 12621,12621
• Citation: 101 Idaho 1,607 P.2d 1055
• Parties: Larry TOMMERUP and Dorthy Tommerup, husband and wife, Plaintiffs-Appellants, v. ALBERTSON'S, INC., a corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1055

607 P.2d 1055

101 Idaho 1

Larry TOMMERUP and Dorthy Tommerup, husband and wife, Plaintiffs-Appellants, v. ALBERTSON'S, INC., a corporation, Defendant-Respondent.

No. 12621.

Supreme Court of Idaho.

Feb. 5, 1980.

Rehearing Denied March 31, 1980.

Donald J. Chisholm of Goodman, Duff & Chisholm, Rupert, for plaintiffs-appellants.

Robert G. Jones of Quane, Smith, Howard & Hull, Boise, for defendant-respondent.

DONALDSON, Chief Justice.

Plaintiffs-appellants, Mr. and Mrs. Tommerup, filed suit against defendant-respondent, Albertson's Inc., for personal injuries sustained by Mrs. Tommerup in a slip and fall accident in the parking lot of an Albertson's grocery store in Twin Falls, Idaho. The case was tried before a jury in February of 1977 after the district court had denied motions of both parties for summary judgment. The jury returned a verdict in favor of defendant, finding that defendant was not negligent in the action. Judgment was entered in accordance with the verdict and plaintiffs have appealed that judgment.

The record at trial disclosed the following facts. On Sunday, September 17, 1972, Mrs. Tommerup upon exiting an Albertson's grocery store in Twin Falls slipped and fell on a cupcake wrapper which apparently had been discarded in the parking lot near the doorway of the grocery store. The parking lot and grocery store were controlled solely by the defendant-respondent. This slip occurred as Mrs. Tommerup was leaving the premises after purchasing groceries in the store. Mrs. Tommerup suffered injury to her right foot in the fall. The incident was immediately reported to the assistant store manager.

There was no direct evidence as to who deposited the cupcake wrapper near the door. The evidence did show that Albertson's sold its own bakery goods in the store and also commercially-packaged bakery goods. Albertson's did not maintain trash containers near the doorway of its store. Plaintiffs introduced exhibits which showed that at the time the action came to trial, similar stores in the area maintained such trash containers near the doorways of their stores. Although store personnel were instructed to pick up paper and debris outside the store as they saw it, the only regularly scheduled inspection and cleanup of the concrete apron and parking lot in front of the store took place between midnight and 6:00 o'clock a. m. On the above evidence, the jury returned a verdict in favor of the defendant.

The following facts were not disclosed to the jury at trial but were presented by the plaintiffs in their motion for summary judgment and as an offer of proof at trial. On September 21, 1972, four days after the accident, an agent for Albertson's wrote to Mrs. Tommerup asking her to submit bills incurred as a result of the accident. Mrs. Tommerup replied to the letter and questioned how she should evaluate items of damage which did not represent out-of-pocket medical expenses. The agent for Albertson's replied it was willing to accept all bills in reference to the accident, and that, when Mrs. Tommerup was "in a position to finalize the claim," it would "work directly with (her)." Mrs. Tommerup stated that on receipt of the letter she believed that Albertson's had admitted liability for all purposes and had agreed to settle the general damages when those damages could be ascertained. The Tommerups at this time did not consult an attorney as to their rights with respect to the accident.

From September, 1972, through January, 1975, Albertson's paid out some $3,800 in medical expenses for the injuries of Mrs. Tommerup. An additional $673 was paid through the month of November, 1975. At that time Albertson's advised the Tommerups that no further payments would be made on their claim. The Tommerups then sought legal advice and now argue that they were lulled into a situation in which they were unable to reconstruct adequately the details of the accident.

The above facts were presented to the court by plaintiffs' motion for summary judgment on September 22, 1976, which motion was denied. Plaintiffs again presented the same set of facts in an offer of proof at trial for the purpose of showing an admission of liability or estoppel to deny liability on the part of defendant-respondent Albertson's.

I

The Tommerups first assign as error the instructions given by the trial court on the issue of liability of an owner or possessor of land for injuries caused by a dangerous condition on the premises. The jury was instructed that mere proof of the existence of a defective condition does not, in itself, establish negligence; among other things, it must additionally be shown that the owner or possessor had actual or constructive knowledge of the defect and failed to remove or correct it as soon as would have been done in the exercise of ordinary care.

The first issue presented on appeal is whether, before an owner or possessor of land is liable for injury to an invitee caused by a defective condition on his land, it must be shown that the owner or possessor had actual or constructive knowledge of the defective condition.

We answer the question in the affirmative. The law is well settled in this state that, to hold an owner or possessor of land liable for injuries to an invitee caused by a dangerous condition existing on the land, it must be shown that the owner or occupier knew, or by the exercise of reasonable care should have known, of the existence of the dangerous condition. Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974); Giles v. Montgomery Ward Co., 94 Idaho 484, 491 P.2d 1256 (1971); Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965); Martin v. Brown, 56 Idaho 379, 54 P.2d 1157 (1936).

Appellants urge this Court to adopt a much stricter standard in the determination of a landowner's (or possessor's) duty to his invitees. In their view, the requirement of proving the owner's or possessor's knowledge (either actual or constructive) imposes an unjust hardship on the plaintiff in a slip and fall case such as this. They contend the plaintiff is in a very difficult position to carry the burden of proof on the issue because he usually has no prior knowledge of the condition, is surprised and upset by the accident, and therefore unable to gather evidence to prove how long the condition existed, does not know of the proof requirement at the time when evidence could best be gathered, and most of the people who are best able to supply the evidence are employees of the proprietor with an interest adverse to the plaintiff.

Although these contentions may at times be correct, they fail to address the real issue. The knowledge requirement did not arise out of consideration of the parties' respective difficulties in proving the facts at trial. The correct analysis has been stated before:

"The owner is not an insurer of such (invitees) . . . . Nor is there any presumption of negligence on the part of an owner or occupier merely upon the showing that an injury has been sustained by one while rightfully upon the premises. 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. (Mautino v. Sutter Hospital Association, 211 Cal. 556, 296 P. 76 (1931))." Martin v. Brown, 56 Idaho at 382, 54 P.2d at 1158. (emphasis ours)

Because the true ground of liability is the superior knowledge of the owner or possessor, we fail to see any justification for holding him liable for injury caused by defects about which he had no knowledge, when the lack of knowledge was not due to a failure by the owner or possessor to use ordinary care.

Appellants argue, however, that the nature of respondent's business was such that it created a reasonable probability that the dangerous condition would arise in the normal course of business, and that respondent's actual or constructive knowledge of the specific defect need not have been proved.

Appellants cite Jasko v. F. W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972) in support of their argument. That case, however, is readily distinguished on its facts. In Jasko, the plaintiff was injured in the defendant's store when she slipped on a slice of pizza which was on the terrazzo floor. An associate manager of the store testified that 500-1,000 individuals per day purchased one or more slices of pizza at the pizza counter. There were no chairs or tables by the counter. Many customers stood in the aisle and ate the pizza from the waxed paper sheets upon which they were served. When pizza was being consumed, porters "constantly" swept up debris from the floor.

In reversing an order granting defendant's motion for summary judgment, the Colorado Supreme Court held defendant's method of selling pizza was one which led inescapably to such mishaps as that of the plaintiff, and in such a situation conventional notice requirements (i. e. actual or constructive knowledge of the specific condition) need not be met. The court there stated:

"The practice of extensive selling of slices of pizza on waxed paper to customers (to) consume it while standing creates the reasonable probability that food would drop to the floor. Food on a terrazzo floor will create a dangerous condition. In such a situation, notice to the proprietor of the specific item on the floor need not be shown. . . ."

The court further stated:

" 'The mere presence of a slick or slippery spot on a floor does not in and of itself establish negligence, for this condition may arise temporarily in any place of business. (Cite) Nor does proof of a slippery floor, without more, give rise to an inference that the proprietor had knowledge of the condition. (Cite) But we are not dealing with an isolated incident.' " Jasko v. F. W. Woolworth Co., supra, 494 P.2d at 840.

The record in the instant case is devoid of evidence indicating the condition which caused appellant's injury to have been other than an isolated incident.

Unde...