Wright v. Demeter

• Decision Date: 20 June 1968
• Docket Number: No. 1,CA-CIV,1
• Citation: 442 P.2d 888,8 Ariz.App. 65
• Parties: Elmer E. WRIGHT and Juanita M. Wright, husband and wife, Appellants, v. William C. DEMETER, dba Bill's Ranch House, Appellee. 547.
• Court: Arizona Court of Appeals

Page 888

442 P.2d 888

8 Ariz.App. 65

Elmer E. WRIGHT and Juanita M. Wright, husband and wife, Appellants, v. William C. DEMETER, dba Bill's Ranch House, Appellee.

No. 1 CA-CIV 547.

Court of Appeals of Arizona.

June 20, 1968.

Alan Philip Bayham, Phoenix, for appellants.

McKesson, Renaud, Cook & Miller, by J. Gordon Cook, Phoenix, for appellee.

KRUCKER, Judge.

Personal injury action was filed by Elmer E. Wright and Juanita M. Wright against William C. Demeter, sole proprietor of Bill's Ranch House Restaurant. Plaintiffs sought damages and defendant answered denying negligence and alleging assumption of risk and contributory negligence. Trial was held September 29, 1966 and resulted in a directed verdict in favor of defendant from which appeal is taken to this court.

Plaintiff Juanita M. Wright was employed by defendant in a carry-out and patio-type restaurant. One of her duties was to refill a coke barrel which was sitting on the counter. To reach the barrel, a metal and wire milk box was provided on which an employee would stand in order to reach the top of the barrel so that coca-cola syrup could be poured into the barrel from a gallon bottle. The surface of the milk box, when turned upside down, was not entirely level. On the day of the alleged injury, Mrs. Wright became overbalanced, stepped off the box before pouring the syrup into the barrel, and twisted her back causing injury which subsequently required hospitalization and a spinal fusion.

It is not contended by plaintiff that she slipped or tripped, or that there was any movement of the box on which she was standing. Plaintiffs' brief raises two questions for review of this court. First, is it error to direct a verdict in favor of the defendant when reasonable minds could differ as to the negligence of defendant; and second, did the court err in refusing testimony of plaintiffs' engineering witness as to the slipperiness of the protruding steel rods of the milk container and the 'teeter-totter' nature and effect of the uneven steel metal rods on the milk container's underside which was used as a standing platform.

At the trial, there was also a question as to the ownership of the business and whether or not there were three or more employees which would require compliance with the provisions of the Workmen's Compensation Law of this state, A.R.S. Title 23, ch. 6. Some testimony indicated that the defendant purchased the business in his own name and that his application for a sales tax license was in his own name, but there was evidence that his two sisters owned an interest in the business. If this is true, as the trial court must have presumed, they were not employees and hence there were not three or more employees in the business.

First, when the appeal is taken from the granting of a directed verdict, this court is required to view the facts in a light most favorable to the party against whom the verdict was directed in determining whether there was sufficient evidence to present the matter to the jury. Hinson v. Phoenix Pie Co., 3 Ariz.App. 523, 416 P.2d 202 (1966). As stated, there was no evidence of slipperiness or tripping or movement of the box and plaintiff's own testimony verifies this fact.

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A. Anyway, I was there and I got overbalanced, why I don't know but I stepped off of this box and with that Coke in my hand and I hadn't poured it out, any of it in the barrel, I hadn't gotten to the barrel, I mean, I hadn't gotten any poured out and I twisted my back. * * *

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Q. Then, am I correct in saying that your overbalancing had nothing to do with any movement of the box; is that true?

A. That is true.

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Q. And is it also correct that there wasn't anything slippery or that caused you to slip--

A. (Interrupting) That is correct.

Q.--on the box? That's right, isn't it?

A. Yes, sir.

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Plaintiff had been using the box as a ladder for some time. Plaintiff was completely familiar with the box. Negligence presupposes a duty of taking care and this, in turn, presupposes knowledge or its equivalent. 38 Am.Jur. Negligence § 23, at 665. The hazard is a necessary element of negligence and before defendant can be found negligent, it must be shown that there was an unreasonable risk of harm to plaintiff. Tucker v. Collar, 79 Ariz. 141, 285 P.2d 178 (1955). In State ex rel. Industrial Commission v. Standard Oil of California, 3 Ariz.App. 389, 414 P.2d 992 (1966), rehearing denied July 18, 1966, the Arizona Appellate Court stated:

"This court has recognized the concept of duty as it relates to the doctrine of negligence in terms of 'foreseeability' of harm to another. The foreseeability of the danger establishes the duty.' Rosendahl v. Tucson Medical Center, 93 Ariz. 368, 380 P.2d 1020, at 1022 (1963).'

We find no evidence that the appellee should reasonably have foreseen that the plaintiff would lose her balance in pouring the syrup into the barrel. As stated in Tucker v. Collar, supra:

'* * * the defendant should have recognized that his acts created an appreciable chance of causing the harm done, rather than a bare possibility * * *.' 79 Ariz., at 143, 285 P.2d, at 179.

Also see, Cummings v. Prader, 95 Ariz. 20, 386 P.2d 27 (1963) where the better test was stated as follows:

'If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably...