Ward v. Avery

• Decision Date: 22 June 1931
• Citation: 155 A. 502,113 Conn. 394
• Court: Connecticut Supreme Court
• Parties: WARD v. AVERY.

155 A. 502

113 Conn. 394

WARD v. AVERY.

Supreme Court of Errors of Connecticut.

June 22, 1931

Appeal from Superior Court, Hartford County; Edward M. Yeomans Judge.

Action by Mary Ward against F. Herbert Avery to recover damages for personal injuries alleged to have been caused by defendant's negligence. The case was tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.

No error.

In action for injuries sustained by one falling on slippery floor of store, defendant's negligence held for jury.

Walfrid G. Lundborg, of Hartford, for appellant.

James E. Cannon and Frank P. Kumpitch, both of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS J.

The plaintiff offered evidence to prove the following facts: The plaintiff had been a customer of and frequent visitor in, a shoe store owned by the defendant, and during business hours entered the store and requested permission to use the telephone. A clerk replied: " Help yourself, Mrs Ward." There were two aisles in the store, and the plaintiff proceeded along the left aisle to the rear of the store where the telephone was located. After using the telephone, she turned to go out, and was approached by the manager of the store, who tried to induce her to buy a pair of shoes, and walked down the center aisle of the store with her, and distracted her attention as he endeavored to make a sale. The center aisle of the store had recently been waxed or oiled, the wax or oil had not been thoroughly removed or dried, and no warning was given the plaintiff of this condition of the floor. As she was walking down the aisle with the manager of the store, the plaintiff suddenly slipped and fell, sustaining the injuries for which she seeks to recover.

The court charged the jury that any person who conducts a store for the sale of merchandise invites the public to come in, that it was the duty of the defendant to use reasonable care to keep the premises, to which he had invited the plaintiff, in a reasonably safe condition, and that the failure to exercise such care would make him liable for any resulting damages.

The defendant contends that the plaintiff, not having entered the store for the purpose of making a purchase, was not an invitee but merely a licensee, and that the charge was therefore incorrect in stating that the defendant owed her the duty of exercising the care which he was bound to exercise toward one entering his store as a customer and therefore upon his implied invitation.

The extent of the duty of the defendant depended largely upon whether the plaintiff was in the store as a licensee or upon the implied invitation of the defendant, and it was within the province of the court to charge the jury as to which relationship arose out of the facts of the case which were substantially undisputed. Pomponio, Adm'r, v. New York, N.H. & H. R. Co., 66 Conn. 528, 536, 34 A. 491, 32 L.R.A. 530, 50 Am.St.Rep. 124; Rooney v. Woolworth, 74...