Vaughn v. Montgomery Ward & Co.
| Decision Date | 12 January 1950 |
| Citation | 95 Cal.App.2d 553,213 P.2d 417 |
| Court | California Court of Appeals Court of Appeals |
| Parties | VAUGHN v. MONTGOMERY WARD & CO. Civ. 14186. |
Hagar, Crosby & Crosby, Oakland, Hoffmann & Draper, San Mateo, for appellant.
Cosgriff, Carr, McClellan & Ingersoll, Burlingame, for respondent.
Plaintiff slipped and fell in a store operated by Montgomery Ward & Co. in Burlingame and fractured her left kneecap. She brought this action alleging that "defendant was careless, reckless and negligent in that prior to the happening of the injuries herein complained of, defendant *** placed upon the floor surface of its said store building an excess amount of oily, slippery, liquid substance or material and failed to use reasonable care in applying said oily, slippery substance or material to the surface of said floor, and failed to use reasonable or ordinary care in the maintenance of said floor after the application of said oily, slippery, liquid substance but allowed said floor to remain in a slippery, hazardous and unsafe condition." The case was tried before a jury and resulted in a $5000 verdict for plaintiff. From the judgment based thereon defendant appeals.
Plaintiff was employed in a cleaning establishment located a short distance from the Montgomery Ward store. She was a frequent business visitor in that store. On March 11, 1946, she entered the store during her lunch hour to cash a Montgomery Ward check. She walked down one of the main aisles, bordered by lingerie and hosiery counters, and up to the cashier's office on the mezzanine floor, cashed her check, came back down the stairs, and proceeded along the same aisle by which she had entered. While so proceeding her right foot slipped and she fell heavily on her left knee. She was wearing shoes equipped with cuban heels. Neither then nor at any other time that day did she observe the condition of the floor, nor did she notice any foreign substance thereon. She did not testify that the floor was slippery. She was assisted to her feet by Mrs. Hill, a clerk, who told her to see the assistant manager, Cooper. Plaintiff testified that at the moment she was embarrassed and did not think she was hurt. She refused assistance and walked out of the store. In a few moments she realized her knee was hurt and returned to the store and asked Mrs. Hill the location of Cooper's office. She was directed to the mezzanine floor, and because Cooper was out to lunch, saw Robinette, the floor manager. He directed her to a company doctor. Plaintiff then left the store. On this second visit to the store in entering and leaving she passed down the same aisle where she had fallen, but did not observe the condition of the floor on either occasion.
Plaintiff then walked to her place of employment. One of plaintiff's coworkers, Mortensen by name, testified that he saw plaintiff come limping into the cleaning establishment, and that plaintiff showed him soiled spots on the hem of her coat and on her skirt and on the left knee of her stocking. These spots felt damp and oily to him. He also testified that he had not noticed the spots before plaintiff left for lunch, and did not know whether or not they were then present. Plaintiff testified as to these spots, and she also testified that they had not been on her clothes before she fell.
The floor on which plaintiff fell was made of maple--a hardwood. It was customarily treated with a preparation known as myco-sheen. Cooper, whose duties included the supervising of the periodic treatment of the floors, testified that myco-sheen is a resin solvent material containing no oil. Mrs. Hill testified that she had heard it had an oil base, but that she did not know from her own knowledge whether or not this was true. This substance was a liquid and was applied with mops and then dried off with dry mops. Cooper testified that the floors were never treated at any other time than on Saturday night, after closing hours; that the floors were gone over about once a month; that the counters were never moved when the floors were treated; that he could accurately ascertain the date the floors were last treated before the accident by the overtime records of his employees; that these records showed that prior to March 11, 1946, the floors had last been treated on February 23, 1946, some sixteen days before the accident. The plaintiff testified that sometime during the week preceding her fall she had visited the store and noticed that some counters, in the back part of the store, not in the part where she had slipped but in another department, had been moved; that at that time she inquired of an unidentified clerk what was happening and was told that "they were getting ready to oil the floors." Mrs. Hill did testify that the floors were oiled Sunday night, March 10, the night before the accident, but when this developed to be hearsay, plaintiff's counsel expressly requested that this evidence be stricken. Such an order was made and the jury instructed to disregard this testimony.
Mrs. Hill testified that "occasionally" customers and sales girls had fallen in the store "but it has always been whenever the floor had been gone over with it *** when the floor has first been oiled." Mrs. Hill, who was plaintiff's main witness, also testified that about fifteen or twenty minutes after the accident she examined the spot where plaintiff fell "to see if there was anything wrong," and was unable to find any foreign material or dirt on the floor.
The above constitutes a complete summary of all the evidence most favorable to plaintiff. The basic question presented is whether that evidence, and all the reasonable inferences based thereon, support the implied finding that defendant was negligent.
In determining this question certain fundamental principles must be kept in mind. The plaintiff was a business guest of defendant. To her the defendant owed a duty of exercising reasonable and ordinary care to keep the premises in a reasonably safe condition. But the owner of a place of business is not an insurer of the safety of his invitees. In order to impose liability on the owner it must be shown that a dangerous condition existed, and that the defendant knew or should have known of it. While under some circumstances, negligence may be inferred from the existence of a dangerous condition, the burden rests upon the plaintiff to show the existence of a dangerous condition, and that the defendant knew or should have known of it. No inference of negligence arises based simply upon proof of a fall upon the owner's floor. The doctrine of res ipsa loquitur is not applicable to such cases.
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