Yuma Furniture Co. v. Rehwinkel
| Decision Date | 18 December 1968 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 448 P.2d 420,8 Ariz.App. 576 |
| Parties | YUMA FURNITURE COMPANY, an Arizona corporation, Appellant, v. Gladys M. REHWINKEL, Appellee. 809. |
| Court | Arizona Court of Appeals |
Nebeker & Nebeker, by Edith L. Nebeker, Yuma, for appellant.
Brandt & Baker, by Thadd G. Baker, Yuma, for appellee.
This is a personal injury case arising out of a fall which took place on the premises of the Yuma Furniture Company store. Defendant store (appellant) is appealing from the judgment entered on the verdict, and from the order denying defendant's motions for judgment notwithstanding the verdict, and for a new trial.
On April 18, 1965, the plaintiff, (appellee) Mrs. Rehwinkel, a sixty-eight-year-old retired secretary, her widowed sister, aged 72, and a friend, aged 80, went to the furniture store to look at a large used couch which had been advertised for sale. Upon entering the store the salesman offered to assist them and took them to the part of the store where the used furniture was displayed. One of the women expressed a desire to see the couch in the daylight.
Daylight was available at either the front or the rear of the store. In this instance the salesman took one of the large pillows from the couch and asking the group to follow him, led them single file down an aisle with furniture and boxes on both sides to a loading dock in the rear of the store. He placed the couch pillow on a three-foot box, holding the pillow between him and the loading dock. His back was about two feet from the loading well. The plaintiff, being the last to arrive upon the scene, felt she could get a better view if she stepped around the salesman. In the process of going around him, she fell on the edge of the dock and into the loading well, thereby sustaining bruises on her right hip and leg and fracturing her os calsis bone.
Mrs. Rehwinkel testified that the light coming from the loading dock was very hazy, and although she was aware of the loading dock, she could not tell where the edge of the loading well began. Defendant's employee, the salesman, admitted that he gave them no warning as to their proximity to the edge of the platform, nor were there any warning signs or chains of any kind except that there was a strip of angle iron on the edge which had been painted an orange color.
Defendant presents three questions for review on this appeal. First, was plaintiff's evidence sufficient to submit the question of defendant's negligence to the jury? Second, should the court have given a 'defendant takes the victim as he finds her' instruction? Third, was the court correct in refusing to give a 'to look is to see' instruction? We believe all of these questions should be answered in the affirmative.
We must determine whether the evidence considered most strongly in favor of sustaining the jury's verdict was either, (a) so substantial that from it a reasonable inference could be drawn that there was a duty to plaintiff and a breach thereof by defendant, or (b) of such character that reasonable minds might differ as to the inferences to be drawn from the facts that there was such a duty and a breach thereof. Bullard v. Stonebraker, 101 Ariz. 584, 422 P.2d 700 (1967).
Plaintiff's position is that she was taken to a cluttered loading dock in a dimly lit warehouse and due to the peculiar tunnellike construction of the loading ramp and the bluish-gray haze of the sun coming through the opening, together with her preoccupation in following the salesman to the opening and looking at the pillow which he held up for her, she was unable to see the danger of falling off the edge of the dock into the loading well. Further, that the salesman never did warn her of the danger.
Defendant advertised and offered this particular furniture for sale and owed to invitees the duty of exercising ordinary care to see that the portion of the premises which was expected to be used in showing the furniture was reasonably safe, and to warn the invitees of any unreasonably dangerous condition. It must be kept in mind that a greater duty rests upon a merchant to discover dangerous conditions than upon the invitee who has a right to assume that the premises are reasonably safe for the invitee's use. Heth v. Del Webb's Highway Inn, 102 Ariz. 330, 429 P.2d 442 (1967).
We believe the evidence supports plaintiff's position. Two of the three women testified in court, and both of them testified that the loading well was not apparent because of the poor lighting and cluttered area around the loading dock. Superimposed on this is the reasonable inference that the salesman, by asking them to follow him, carried the attention of the party with him when he took them to the spot and displayed the pillow. There is no question regarding the knowledge by the salesman of the well opening and its proximity to the invitees. Regarding the danger, reasonable minds could infer that the salesman knew, or by the exercise of reasonable care should have known, that the condition created by the lighting effect and the proximity of the loading well to the group which was intent on viewing the pillow in the daylight involved an unreasonable risk of harm to them. Reasonable minds could also conclude that the salesman should have expected that someone in the group under the circumstances would not realize the danger and fall into the well unless warned of the danger.
The responsibility of the proprietor in cases similar to the instant case is well stated in the Minnesota case of Harris v. Campbell Cereal Company, 243 Minn. 308, 67 N.W.2d 824 (1954). In this case the decedent entered the store for the purpose of purchasing some empty sacks. The merchant took her to the back area where a stairway upon her right was concealed from view by some additional sacks. Along with the merchant, the decedent inspected the sacks, with her back to the stairway. Although there was sufficient light to see the head of the stairway, her attention had been directed away from the same toward the sacks, by the merchant. She stepped back and fell to her death. The merchant at no point disclosed to her her...
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...Coburn, 143 Ariz. 50, 691 P.2d 1078; Johnson v. Tucson Estates, Inc., 140 Ariz. 531, 683 P.2d 330 (App.1984); Yuma Furniture Co. v. Rehwinkel, 8 Ariz.App. 576, 448 P.2d 420 (1968). Examination does not end with the observation that a danger was open and obvious. Rather, the examination shif......
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