Warfield v. Shell Oil Co.

• Decision Date: 15 July 1970
• Docket Number: No. 9885,9885
• Citation: 106 Ariz. 181,472 P.2d 50
• Parties: Clarice WARFIELD, Appellant, v. SHELL OIL COMPANY, a Delaware corporation, Murray E. Woods Construction Company, an Arizona corporation, and Robert Hazelton and Mary Hazelton, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 50

472 P.2d 50

106 Ariz. 181

Clarice WARFIELD, Appellant, v. SHELL OIL COMPANY, a Delaware corporation, Murray E. Woods Construction Company, an Arizona corporation, and Robert Hazelton and Mary Hazelton, husband and wife, Appellees.

No. 9885.

Supreme Court of Arizona, In Division.

July 15, 1970.

Carmichael, Johnson, Stephens & Vanlandingham, by N. Pike Johnson, Jr., Phoenix, for appellant.

Kramer, Roche, Burch, Streich & Cracchiolo, by William P. French, Phoenix, for Shell Oil Co.

Jennings, Strouss, Salmon & Trask, by Charles R. Esser, Phoenix, for Murray E. Woods Const. Co.

Fennemore, Craig, von Ammon & Udall, by Roger C. Mitten, Phoenix, for Robert and Mary Hazelton.

LOCKWOOD, Chief Justice:

This is an appeal by the plaintiff in a personal injury suit from a directed verdict granted in favor of all defendants. The facts show that defendant Shell Oil Company owned, in combination with a longterm lease arrangement with the owner of the real property, a gasoline station at 51st Avenue and Indian School Road in Phoenix, Arizona. Shell leased a portion of their interest in the station to defendant Hazelton, who operated the station.

In its agreement with Hazelton, Shell reserved the right to inspect the station, make repairs, and to make alterations on the station. In accordance with this agreement, Shell contracted with defendant Murray E. Woods Construction to install additional underground gasoline tanks and vent lines for the station. The contract was awarded to Woods by virtue of his low bid on construction work to be performed at nine Shell stations, one of which was Hazelton's. Pursuant to his lease with Shell, Hazelton was not a party to this contract and had no voice in the matter.

The contract specified the type and design of materials to be used. Additionally, it required the work to be done with as little interference with the normal operations of the station as possible.

Defendant Woods began work at Hazelton's station on November 7, 1966. On the 7th and 8th, they excavated for and installed the tanks, product piping and electrical connections. On November 9th, in order to install the vent lines, they dug a trench across a portion of the station plaza. According to defendant Woods, this operation was left until this time 'because we (Woods) wanted to do it all in one day and have it backfilled so he (Hazelton) could use his lube room that afternoon.' After the vent lines were in place, the trench was backfilled with washed sand and gravel and a material known as 'A.B.C.' ¹ until the trench surface was level with the surrounding asphalt. Since the trench was not exposed, no barricades were erected when the workers left for the day.

About 8:00 P.M. on the evening of November 9th, plaintiff brought her car to the station for servicing. When the servicing was completed an attendant backed the car out of the service stall for plaintiff. According to plaintiff's testimony at the trial, as she walked towards the car, the following occurred:

'A. * * * I was walking along and I suddenly saw this trench filled in; and as I was taking my step, I see that it was muddy, I did not want to step in it, I didn't know how muddy it was, whether it would mar up, I quickly--I was, you know, in deciding, a slight pause, not a direct stop, because if I would have stopped abruptly, I would have set right smack down on the concrete, but sort of a pause, what should I do.

'I quickly surveyed it and having hiked in the mountains and rough terrain, I quickly looked at this and decided this is not too wide for me to safely step across, so I continued my step.

'Q. And with which foot, Mrs. Warfield, did you attempt to continue your progress across the excavation?

'A. My left foot.

'Q. And then what happened?

'A. When I put, transferred all my weight to my left foot, my left foot slipped and went smack out in front of me, right straight out, and I went down on my knee, and from then it was thunder and lightning, it was terrible.

'Q. You landed then on your right knee?

'A. That is correct.'

Plaintiff was taken to a hospital immediately following the accident. Medical examination revealed that she had completely crushed her kneecap. Surgery was required, resulting in removal of the entire right kneecap and permanent injury to her leg.

In addition to plaintiff's testimony, as quoted above, the only evidence of what caused plaintiff's fall was the testimony of the police officer who investigated the scene and stated in his report that there was mud present, and the shoes plaintiff was wearing that evening which had what appeared to be small amounts of dried mud on them. Defendant Woods testified that when his workmen left the station earlier in the day, there was no mud present. Defendant Hazelton testified that he observed no mud at the scene when he arrived shortly after the accident. None of the station attendants were called to testify.

On the basis of this evidence, the trial court directed a verdict in favor of all three defendants.

Plaintiff's arguments on appeal can be stated in two basic questions. First, on the basis of the evidence presented by plaintiff, was the trial court correct in directing verdicts in favor of all defendants? Second, did the trial court abuse its discretion in excluding a hearsay statement made by an individual thought to be a station attendant?

The first question can be answered by determining whether, as a matter of law, any of ...