Warren v. T. G. & Y. Stores Co., 46399

• Decision Date: 19 July 1972
• Docket Number: No. 46399,46399
• Citation: 210 Kan. 43,499 P.2d 201
• Parties: Alcidene WARREN, Appellant, v. T. G. & Y. STORES COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 201

499 P.2d 201

210 Kan. 43

Alcidene WARREN, Appellant, v. T. G. & Y. STORES COMPANY, a Corporation, Appellee.

No. 46399.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

1. Upon entering a retail store, a mature and normal person must make reasonable use of his faculties for his own protection, and, in the interest of his own safety, he is required to use that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances.

2. Appellant brought an action to recover for personal injuries sustained by her when she tripped and fell over a box of merchandise in an aisle in appellee's retail store under circumstances fully set forth in the opinion. The record is examined and it is held: (1) Appellant's evidence established contributory negligence on her part as a matter of law; and (2) the trial court did not err in sustaining appellee's motion for a directed verdict.

James R. Hanson, of Boyer, Donaldson & Stewart, Wichita, argued the cause, and Kenneth R. Van Blaricum, Wichita, was with him on the brief for the appellant.

Larry A. Withers, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Richard C. Hite and Gary A. Winfrey, Wichita, were on the brief for the appellee.

PRAGER, Justice:

This is an action in which the appellant. Alcidene Warren, seeks to recover damages from the appellee, T. G. & Y. Stores Company, for personal injuries suffered by Mrs. Warren when she tripped and fell over a box of merchandise which had been placed in an aisleway by employees of the store. The case was tried to a jury. At the close of appellant's evidence the district court sustained a motion in favor of the appellee for a directed verdict on the ground that the appellant was contributorially negligent as a matter of law which barred her recovery. The appellant's motions to set aside the judgment and for a new trial were overruled and the appellant has brought a timely appeal to this court.

The facts in this case are not in dispute. We will accept the testimony of appellant Alcidene Warren as true in determining the sufficiency of appellant's evidence to make a prima facie case and to go to the jury.

Appellant, Mrs. Warren, entered the store of appellee in Wichita, Kansas, on the evening of October 23, 1969, on her way home from work. Her purpose for stopping at the store was to purchase some wrapping paper and paper plates for a birthday celebration for her children. The store was relatively new, having opened about one year before appellant was injured. Appellant had patronized the store about once a week during the past year. The place of residence of appellant and her husband was within a mile of the location of the store.

Appellant testified that during the times she was in the store before the accident occurred, she had seen boxes or displays within the aisleways and that this was probably an occasional occurrence. She stated that in her experience in similar retail establishments this was probably true generally and that she sometimes did find boxes of merchandise in the aisleways. On the day she was injured Mrs. Warren testified that her husband waited for her in the family car parked in a parking lot located on the east side of the store. After she entered the store, appellant purchased one package of paper plates and one small piece of wrapping paper. At the time of her fall she was carrying these items together with her purse in her hands. There was nothing about these packages that interfered with her vision. Appellant testified that she was in somewhat of a rush on the day the accident occurred in order to get on with the birthday party for her children. After she fell she observed a box in the aisleway which she described as 6 to 8 high, a foot wide and 1 1/2 feet long. There was nothing else in the aisleway to trip her. Appellant testified that she never saw the box before she fell over it and that she rounded the corner, took three or four steps and was heading for the check-out stand when she fell. It is undisputed that the aisleway was four feet wide. The floor consisted of brown tile and appellant had no complaint about the lighting in the store. The appellee T. G. & Y. stipulated at the trial that the box of merchandise which caused Mrs. Warren to fall belonged to the store and was placed in the aisle by employees of the store. It is undisputed that as a result of her fall Mrs. Warren suffered a fractured bone in the elbow joint of her left arm which caused her personal injury and damages.

On the basis of the testimony of Mrs. Warren the trial court found that appellant was negligent as a matter of law and thereupon sustained appellee's motion for a directed verdict. In taking such action the trial judge reasoned as follows:

'The evidence shows this to have been a wide, well lighted aisle, and it also shows the plaintiff was fixing her attention on the exit and did not see a carton of merchandise which was no the floor over to one side and in plain view to be seen. Under the circumstances she was bound to use ordinary care for her own safety and is not to be excused for the not seeing that which was in plain view to have been seen. There is no evidence of her attention having been distracted by displays or other situations in the store except her desire to exit quickly.

Judgment, therefore, is rendered in favor of the defendant on the ground of contributory negligence.'

We will assume for purposes of this appeal that the evidence of appellant was sufficient to raise a genuine issue of fact on the question of appellee's negligence. It was stipulated by the parties that Mrs. Warren was a business invitee at the T. G. & Y. Store. It is undisputed that the box of merchandise was placed in the aisle by employees of the store and hence there is no question of adequate notice to the proprietor involved.

We have held many times that although the proprietor of a store is not an insurer of the safety of his customers he is obligated to exercise ordinary care to keep the store in reasonably safe condition so as not to cause injury to business invitees. (Elrod v. Walls, Inc., 205 Kan. 808, 473 P.2d 12; Little v. Butner, 186 Kan. 75, 348 P.2d 1022.) In the case at bar the trial court made no finding as to the sufficiency of the evidence to prove negligence on the part of the appellee as proprietor of the store. That being true, we will not determine this case on that issue but will turn our attention to the question of whether or not the appellant, Mrs. Warren, was guilty of negligence which barred her recovery as a matter of law.

Ordinarily, the existence of contributory negligence is a question of fact, it being for the jury to determine from the circumstances of each particular case whether the conduct of a party was such as would be expected of a reasonably prudent person. In ascertaining whether as a matter of law a plaintiff is contributorially negligent, the evidence and all inferences that may reasonably be drawn therefrom must be accepted as true and considered in the light most favorable to the plaintiff; and if the facts be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury. (Schenck v. Thompson, 201 Kan. 608, 443 P.2d 298; Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P.2d 990; Bender v. Bulger Cadillac-Oldsmobile, Inc., 208 Kan. 72, 490 P.2d 361.)

The rights and responsibilities of a business invitee in a retail store have been thoroughly discussed in our opinions. We have held that upon entering a retail store, a mature and normal person must make reasonable use of his faculties for his own protection, and, in the interest of his own safety, he is required to use that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances. (Reese v. Abeles, 100 Kan. 518, 164 P. 1080; Little v. Butner, supra.) Where a customer, in the proper pursuit of his business, passes along aisles between counters where merchandise is displayed, he would necessarily be required to pay close attention to the shelves and would not ordinarily be expected to watch the floor and each step taken. In the absence of circumstances which indicate or which reasonably should indicate the existence of defects or dangers, he may assume the premises are safe for the use to be made of them under the invitation to be present in the store. In other words, it is not contributory negligence for a business invitee upon the premises to fail to look out for danger when there is no reason for an ordinarily prudent person to apprehend a peril. (Little v. Butner, supra.)

The sole issue presented to the court in the case at bar is whether or not under appellant's own testimony and admissions she was guilty of negligence which contributed to her injury as a matter of law. Under the particular facts and circumstances here we hold that the appellant is barred from recovery by reason of her...