Vaughn v. National Tea Company

• Decision Date: 19 March 1964
• Docket Number: No. 14294.,14294.
• Citation: 328 F.2d 128
• Parties: Helen Ruth VAUGHN, Plaintiff-Appellee, v. NATIONAL TEA COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.2d 128 (1964)

Helen Ruth VAUGHN, Plaintiff-Appellee, v. NATIONAL TEA COMPANY, Defendant-Appellant.

No. 14294.

United States Court of Appeals Seventh Circuit.

January 30, 1964.

Rehearing Denied March 19, 1964.

George V. Burbach, Owen W. Crumpacker, and Crumpacker, Burbach & Abrahamson, Hammond, Ind., for appellant.

Daniel C. Kuzman, Fred M. Stults, Jr., Gary, Ind., Stults, Custer & Kuzman, Gary, Ind., of counsel, for appellee.

Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.

DUFFY, Circuit Judge.

This diversity suit was brought to recover damages for injuries sustained by plaintiff when she slipped and fell in defendant's store located in East Gary, Indiana. The store was of the self-service supermarket variety. The case was tried to a jury which found for the plaintiff and awarded damages in the sum of $25,000.

On May 25, 1959, plaintiff entered defendant's store to make certain purchases. She used a shopping cart. After shopping in several aisles, she went to the produce aisle which is the easternmost aisle in the store. She entered this aisle from the north or rear end of the store.

The vegetables and fruit were displayed in bins along each side of the produce aisle, some wrapped and some unwrapped. There were two hoses used to sprinkle the non-wrapped vegetables including leaf lettuce. The sprinkling was done to keep certain vegetables crisp. The store was scheduled to open at 9. a. m., prior to which time any foreign material was cleaned from the produce. Thereafter, produce was brought from the back room and placed in the bins. The aisles usually were swept and cleaned up between 9 and 9:30 a. m. each day. Two swinging doors separate the stockroom and the produce aisle. Each of these doors had a glass window. These doors usually were kept open in order that the produce clerk could more readily observe the produce aisle. The floor was constructed of tile.

For a year or two prior to May 25, 1959, Bessie Pappas had been defendant's produce clerk. The testimony showed it was normal for bits of produce to fall on the floor in the produce aisle. Bessie Pappas was responsible for keeping the produce aisle clean. On the day in question, Bessie had been on duty from two to seven hours before the time of the plaintiff's fall. Bessie did not remember sweeping, cleaning, mopping or picking up anything from the produce aisle on the day prior to the time plaintiff slipped and fell.

Plaintiff left her cart at the north end of the aisle, walked over to where the tomatoes were displayed, selected some, turned around, walked to the center of the aisle and then slipped and fell landing on her right side.

After falling, and while still on the tile floor, plaintiff noticed a piece of lettuce about two to three inches in diameter near her right foot. Adjacent to the lettuce was a skidmark consisting of a blackgreenish stain on the floor being about two inches wide and variously described as from twelve to twenty-four inches long. The piece of lettuce was at one end of the skidmark. Plaintiff had a greenish-black stain on the sole and side of her right shoe, on her right stocking and on the hem of her dress. The piece of lettuce, after plaintiff had stepped and slipped on it, was described variously by witnesses as decayed, black piece of lettuce, partially mashed, discolored, dark greenish color, wet, slimy, spotty, blackish-greenish, rotten.

Although Bessie Pappas denied it, both plaintiff and Mr. and Mrs. Leigh saw her pick up the piece of lettuce from the floor after plaintiff fell, and deposit it in a trash container.

Plaintiff suffered pain in her neck, shoulder and arm. A cervical laminectomy for the removal of a ruptured disc was performed. In the opinion of the doctors who testified, this condition probably resulted from the plaintiff's fall.

Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied this motion.

On this appeal, defendant's principal contention is that the record contains no evidence of any negligence on the part of the defendant. It is strongly argued that there was no evidence that defendant breached a duty to plaintiff by not discovering or removing the piece of lettuce from the floor of its store.

Whether a mashed, slimy piece of lettuce on a tile floor in a supermarket creates a dangerous condition so as to give rise to a duty on the part of the storekeeper to discover and remove it, is, in our opinion, a question for the jury.

Defendant relies heavily on J. C. Penney, Inc. v. Kellermeyer, 107 Ind.App. 253, 19 N.E.2d 882, Reh. den. 22 N.E.2d 899. However, we think that case is distinguishable. The item causing the plaintiff to fall in Kellermeyer was a piece of wood, cardboard or cellophane. The Court there said, 19 N.E.2d at page 886: "As distinguished from the...