White v. Wynn, 61709

• Decision Date: 05 November 1985
• Docket Number: No. 61709,61709
• Citation: 708 P.2d 1126,1985 OK 89
• Parties: Rader L. WHITE and John White, Appellants, v. Gordon WYNN d/b/a Wynn's IGA Store, and Wynn's IGA, Inc., Appellees.
• Court: Oklahoma Supreme Court

Page 1126

708 P.2d 1126

1985 OK 89

Rader L. WHITE and John White, Appellants, v. Gordon WYNN d/b/a Wynn's IGA Store, and Wynn's IGA, Inc., Appellees.

No. 61709.

Supreme Court of Oklahoma.

Nov. 5, 1985.

N. Michael Chavez, Del City, for appellants.

Monnet, Hayes, Bullis Thompson & Edwards by James M. Robinson and Robert C. Smith, Jr., Oklahoma City, for appellees.

DOOLIN, Vice Chief Justice.

Appellant Rader L. White (Shopper) alleges she slipped on some oily-sticky substance and fell to the floor while shopping in a self-service supermarket owned by appellee Wynn's IGA Store and Wynn's IGA, Inc. (Store). Shopper alleges her injuries were caused by Store's inoperative frozen foods and meat refrigeration unit and resulted from Store's negligent failure to inspect the premises to remove the substance and prevent injury to Shopper. Store moved for summary judgment, contending that Shopper "does not and cannot obtain the evidence to carry her burden of proof to establish a prima facie negligence case." See, Gilmore v. St. Anthony Hospital, infra.

Shopper appealed the order granting Store summary judgment, and the Court of Appeals affirmed. The sole issue on certiorari is whether it was error to grant summary judgment to Store. We hold that Shopper's response to the motion for summary judgment left an unresolved material issue of fact as to Store's duty of care to Shopper.

Shopper alleged that she entered Store's supermarket on March 13, 1981, at approximately 7:30 A.M., about thirty minutes after Store opened to the public. She headed directly to the rear of the supermarket and there encountered the substance which caused her fall.

Shopper fell to the floor. She stated by affidavit ¹ that the spillage was pinkish in color and sticky to the touch. She stated that the drops looked like drippings from thawing meat, and had a lineal pattern across the rear aisle from a vacant refrigeration unit at the rear of the supermarket towards the front. Store's manager contended the substance was coffee. Shopper suffered extensive injuries and sued Store. ²

During her deposition, Shopper testified that she did not know "really what the substance was that was on the floor." or how long the substance had been on the floor. The trial court found that the undisputed facts did not give rise to any reasonable inference sufficient to support a jury verdict in her favor. On appeal Shopper took the position that under Lingerfelt v. Winn-Dixie Texas, Inc., 645 P.2d 485, 489 (Okl.1982), ³ Shopper need not have direct evidence of how long the substance had been on the floor nor prove notice of the specific condition to recover in negligence under certain circumstances.

The Court of Appeals found Lingerfelt inapplicable, holding that Shopper was--

"required to follow the general rule of invitor liability and show either that the liquid was the result of the store's negligence or that the store had actual or constructive notice of the condition in time to effect its removal or give warning of its presence. Rogers v. Hennessee, 602 P.2d 1033 (Okl.1979); Kassick v. Spicer, 490 P.2d 251 (Okl.1971). There is no evidence in the record of a negligent act by Wynn's, actual notice to Wynn's, or the length of time the liquid was on the floor."

The Court of Appeals found this evidence indispensable to Shopper's cause of action. We disagree.

Since we granted certiorari limited to the question of whether it was error to grant the summary judgment, the essential question turns on the correctness of the Court of Appeals' standard of review in affirming the trial court's order. We agree with Shopper that the Court of Appeals applied the wrong standard of review and that the question of whether Store had been negligent in respect to its duty to Shopper is a question of fact for the jury. Safeway Stores, Inc. v. Keef, 416 P.2d 892 (Okl.1966).

On a motion for summary judgment under District Court Rule 13 (12 O.S. Ch. 2, App.) all inferences and conclusions to be drawn from the underlying facts contained in such materials, must be viewed in the light most favorable to the party opposing the motion. Where facts concerning any issue raised by the pleadings and materials are such that reasonable men, in the exercise of fair and impartial judgment, might reach different conclusions upon consideration of the same, summary judgment must be denied. Ross v. City of Shawnee, 683 P.2d 535 (Okl.1984); Northrip v. Montgomery Ward & Co., 529 P.2d 489 (Okl.1974). Our analysis of the evidence in Rogers and Kassick is inappropriate as a standard of review of a motion for summary judgment in the instant case.

In Rogers, we decided whether the evidence in a slip-and-fall case was sufficient to withstand a demurrer to the evidence, and in Kassick, we reviewed a jury verdict and judgment for the plaintiff. In the record before us, the trial court and Court of Appeals have formulated a rule that requires a plaintiff to prove her case when...