Williamson v. Piggly Wiggly Shop Rite Foods, Inc.

• Decision Date: 05 September 1969
• Docket Number: No. 333,333
• Citation: 1969 NMCA 88,458 P.2d 843,80 N.M. 591
• Parties: Mildred WILLIAMSON, Plaintiff-Appellant, v. PIGGLY WIGGLY SHOP RITE FOODS, INC., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 843

458 P.2d 843

80 N.M. 591

Mildred WILLIAMSON, Plaintiff-Appellant, v. PIGGLY WIGGLY SHOP RITE FOODS, INC., Defendant-Appellee.

No. 333.

Court of Appeals of New Mexico.

Sept. 5, 1969.

Charles G. Berry, McAtee, Marchiondo & Michael, Albuquerque, for appellant

Clarence R. Bass, Shaffer, Butt & Bass, Albuquerque, for appellee.

OPINION

OMAN, Judge.

Plaintiff brought suit for injuries allegedly sustained by her as a proximate result of slipping and falling in defendant's supermarket. She claimed to have slipped on a grape which was on the floor in the produce department. She appeals from a judgment entered for defendant pursuant to a directed verdict.

She relies upon three points for reversal. In her first point, which she has broken down into sub-points, she claims that the evidence adduced by her would support a jury verdict in her favor. If her contention be true, then the trial court erred in directing a verdict against her. Simon v. Akin, 79 N.M. 689, 448 P.2d 795 (1968); McGuire v. Pearson, 78 N.M. 357, 431 P.2d 735 (1967); Wahlin v. Shelby, 76 N.M. 196, 413 P.2d 475 (1966); Merchant v. Worley, 79 N.M. 771, 449 P.2d 787 (Ct.App.1969). On the other hand, if the evidence and the reasonable inferences to be drawn therefrom are plain and not open to doubt by reasonable men, then there was no issue of fact to be presented to the jury. Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966); Lewis v. Barber's Super Markets, Inc., 72 N.M. 402, 384 P.2d 470 (1963); Merchant v. Worley, supra; Smith v. Loos, 78 N.M. 339, 431 P.2d 72 (Ct.App.1967).

Plaintiff recognizes that the mere presence of a slick or slippery spot on a floor does not in and of itself establish negligence, for this condition may arise temporarily in any place of business (Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712 (1958); Kitts v. Shop Rite Foods, 64 N.M. 24, 323 P.2d 282 (1958)); negligence on the part of the owner or occupier of business premises may not be presumed merely from the fact that an injury has been sustained by one while rightfully upon the premises (Barrans .v Hogan, 62 N.M. 79, 304 P.2d 880, 61 A.L.R.2d 1 (1956); De Baca v. Kahn, 49 N.M. 225, 161 P.2d 630 (1945)); the law does not impose upon a storekeeper the duty to follow each customer about, dustpan in hand, to gather up debris (Jimenez v. Shop Rite Foods, Inc., 72 N.M. 184, 382 P.2d 181 (1963); Mahoney v. J. C. Penney Company, 71 N.M. 244, 377 P.2d 663 (1962)); and the presence or absence of negligence on the part of the business proprietor in many of the slip and fall cases in New Mexico seems to have been determined upon whether '* * * the proof established as a fact or permitted a reasonable inference that (a) 'messy condition * * * was a continuing occurrence--in effect a pattern of conduct * * *' * * *.' (Lewis v. Barber's Super Markets, Inc., supra; Shaver v. Ray Bell Oil Co., 74 N.M. 700, 397 P.2d 723 (1964)).

Plaintiff admits that in the present case '* * * there is no evidence of a 'messy condition' or 'pattern of conduct,' nor was any attempt made to establish one. * * *' Therefore, if this case falls on either side of the liability line noted in Lewis v. Barber's Super Markets, Inc., supra, and Shaver v. Ray Bell Oil Co., supra, it falls on the side of non-liability.

Unquestionably, liability of the proprietor of a business, as the possessor of the premises, is not determined alone by the maintenance of a 'messy condition' or a 'pattern of conduct.' The distinction between the two lines of slip and fall cases in New Mexico, observed by our Supreme Court in Lewis and Shaver, was not intended as a statement of the only conditions to be considered on the question of a proprietor's negligence. He is liable for physical harm caused to his invitees by a condition on his premises, if, but only if, he:

'(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

'(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

'(c) fails to exercise reasonable care to protect them against the danger.'

Restatement (Second), Torts 2d, § 343 (1965); Dempsey v. Alamo Hotels, Inc., 76 N.M. 712, 418 P.2d 58 (1966); Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966); Lovato v. Plateau, Inc., 79 N.M. 428, 444 P.2d 613 (Ct.App.1968).

Plaintiff relies upon a claimed inference of negligence on the part of defendant in one or more of the following respects:

'1. That the presence of the grape on defendant's floor which caused plaintiff to slip and fall is traceable directly to the negligence of defendant's employees.

'2. That the floor in defendant's store was designed so as to conceal the grape upon which plaintiff stepped and slipped.

'3. That the lighting of defendant's store was constructed so as to create an optical illusion and prevent plaintiff from seeing the grape upon which she stepped and slipped.'

The evidence, material to plaintiff's contention that the presence of the grape on the floor is traceable directly to the negligence of defendant's employees, is as follows:

(1) As above stated, it is conceded by plaintiff that 'no messy condition' or 'pattern of conduct' was proven, or even attempted to be proven.

(2) The supermarket personnel regularly and continually maintain the floor in a clean condition.

(3$ At about 8:30 a.m. on the day plaintiff fell, the manager of the produce department had checked the display cases, '* * * put out any produce that needed to be put out, * * *', taken out bad produce and replaced it with fresh produce, 'watered it down,' swept the floor, and, thereafter, gone over the floor with a dry mop (actually, it was a wet mop with most of the water wrung out, so that it was damp when applied to the floor).

(4) The supermarket was open to the public at 9:00 a.m., and plaintiff fell at about 9:30 or 9:45 a.m., when she stepped on a grape.

(5) The manager of the produce department and the manager of the meat department both testified they had seen no customers in the area, and the one testified he had seen no customers in the store. However, both testified they were in the back room drinking coffee when they heard someone cry out. They went out into the produce area and found plaintiff lying on the floor.

(6) The produce manager testified he had been through the area several times after concluding the mopping and prior to going for coffee and had seen nothing on the floor. He was unable to account for the presence of the grape, unless someone knocked or dropped it there.

From this evidence plaintiff contends:

'* * * the jury could reasonably infer that the grape was dropped there by (the manager of the produce department); or, in view of the fact that he was in the area several times after he had cleaned but prior to the time of the accident, that he was negligent in carrying out his inspection and in failing to find and remove the grapes from the floor.'

The testimony of plaintiff is that she slipped on a grape which was crushed by her, and the produce manager and other witnesses saw a whole grape on the floor after she fell. Therefore, there is testimony that two grapes were on the floor. Unless their presence upon the floor is sufficient upon which to base an inference that the produce manager dropped them, or overlooked them, then plaintiff must fail in her contention. The presence of the grapes on the floor is just as consistent with an inference that they became detached by themselves from a bunch, or were dropped by someone unknown, as it is to infer that the produce manager dropped or overlooked them. It is true he was in the area cleaning and inspecting, but there is nothing, other than his presence in the area, to suggest he dropped them. It is possible he overlooked them, but it is equally possible that they were not present on the floor when he passed through the area the last time before going for coffee. We have an absence of evidence as to how or when the two grapes got on the floor, but the evidence is clear that the floor had been swept and mopped within about an hour of the time plaintiff fell, and that the produce manager had been in the area several times between the mopping and the time of the accident and had seen nothing on the floor.

The facts in this case, concerning the unexplained presence of the object or substance causing the harm, are similar to those in De Baca v. Kahn,supra, and Lovato v. Plateau, Inc., supra. In those cases it was concluded that no inference of negligence on the part of the proprietor could properly be reached by reason of the unexplained presence of an oil spot on which plaintiff slipped in the De Baca case, or the unexplained presence of the gasoline or other flammable substance which became ignited in the Lovato case. We reach the same conclusion under the evidence in this case. See also Jimenez v. Shop Rite Foods, Inc., supra, wherein the dangerous object was a grape, just as in the present...