Zacher v. Missouri Real Estate & Ins. Agency, Inc.

• Decision Date: 12 July 1965
• Docket Number: No. 51021,No. 1,51021,1
• Citation: 393 S.W.2d 446
• Court: Missouri Supreme Court
• Parties: Elanor A. ZACHER, Plaintiff-Respondent, v. MISSOURI REAL ESTATE & INSURANCE AGENCY, INC., Defendant-Appellant

Page 446

393 S.W.2d 446

Elanor A. ZACHER, Plaintiff-Respondent, v. MISSOURI REAL ESTATE & INSURANCE AGENCY, INC., Defendant-Appellant.

No. 51021.

Supreme Court of Missouri, Division No. 1.

July 12, 1965.

Motion for Rehearing or for Transfer to Court En Banc Denied

Sept. 13, 1965.

Don B. Sommers, Gray & Sommers, St. Louis, for plaintiff-respondent.

Burton H. Shostak, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendant-appellant.

WELBORN, Commissioner.

This is an action for $45,000 damages by an employee of a tenant against the landlord for personal injuries alleged to have been sustained by plaintiff when she slipped and fell in a hallway under the control of and maintained by the landlord. The jury's verdict was for defendant. The trial court granted plaintiff a new trial on the grounds of error in an instruction offered by the defendant. Defendant has appealed from the order awarding a new trial.

Plaintiff, Eleanor A. Zacher, was an officer and employee of the A to Z Service Company, a corporation engaged in the insurance business. A to Z was a tenant of the defendant, Missouri Real Estate & Insurance Agency, Inc., in a three-story office building owned by the defendant and located at 20 South Central Avenue in Clayton. A to Z occupied two rooms on the second floor of defendant's building. There were other offices on the second floor occupied by other tenants and all of the offices were entered from a hallway which the defendant controlled and maintained for the common use of the tenants and their employees, customers and patrons.

Plaintiff slipped and fell in the second floor hallway on January 15, 1962. The theory of her cause of action was that water accumulated on the hallway floor during inclement weather and as a result the floor was made very slick and slippery, with the attendant probability that a person walking in the hallway would slip and fall and suffer injury; that the defendant knew or should have known of the condition, but failed to take steps to prevent the allegedly unsafe condition resulting from the accumulation of water on the floor in inclement weather.

Plaintiff slipped and fell as she was going to work at the A to Z office shortly after 9:00 a. m. Snow which had accumulated over a period of several days prior to the date of the accident remained on the ground. Snow and sleet had also fallen the preceding evening. A witness described conditions as 'sloppy underneath because the day before * * * we had snow.' Plaintiff was driven to the vicinity of the rear entrance of the building on that morning by her husband. She was wearing lowheeled shoes and new galoshes with corrugated soles. She walked across a parking lot area and through the rear doorway and took the self-operated elevator to the second floor. According to the plaintiff she was not aware when she left the elevator on the second floor of the presence of water on the floor. She had taken a few steps toward her office when, as she stated, 'I walked down the corridor and suddenly my feet slipped out from under me and I fell * * * I don't know what happened * * * I can't say I stepped in a puddle.' However, plaintiff stated that, as she lay on the floor after falling, she could see puddles of water on the floor elsewhere and she felt water on her coat and hair.

The flooring material on the second floor was a light brown or beige vinyl tile which had been installed in 1959 or 1960. It was waxed and polished regularly by the janitor, although less frequently in the winter than at other times. The defendant's building manager who occupied an office on the third floor of the building testified that she had seen water tracked to the third floor of the building on inclement days. The janitor employed by the defendant testified that he had mopped slush from the second floor hallway the day before plaintiff fell. Plaintiff, her husband and another employee of A to Z testified that, on days of inclement weather prior to the accident, water was tracked into the building and onto the second floor. Other than plaintiff no one testified to the presence of water on the second floor at the time plaintiff fell.

On this appeal defendant contends the action of the trial court in awarding plaintiff a new trial was erroneous but that in any event plaintiff failed to make a submissible case.

'A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.' 2 Restatement, Torts, Sec. 360, p. 976. See Annotation 'Landlord's liability for injury due to defects in inside passageways and chambers used in common by tenants.' 25 A.L.R.2d 444.

Viewing the evidence in the light most favorable to plaintiff, we are of the opinion that plaintiff did make a submissible case. There was undisputed evidence that the defendant's employees were aware of the accumulation of water on the second floor hallway in periods of inclement weather.

'The presence of water alone (or water, dampness, wet slush or slime, as the evidence tends to show was present on the steps of defendant's stairway in our case) on the variously covered surfaces of floors, or of the stairs in stores, has been recognized, in the physical settings and the shown circumstances of cases, as supporting the inference of a condition dangerous and not reasonably safe for the invitee's use. Clifford v. F. W. Woolworth Co., Mo.App. 201 S.W.2d 416, certiorari quashed State ex rel. F. W. Woolworth Co. v. Bland, 357 Mo. 339, 208 S.W.2d 263; Bankhead v. First Nat. Bank in St. Louis, Mo.App., 137 S.W.2d 594, certiorari quashed State ex rel. First Nat. Bank in St. Louis v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Hubenschmidt v. S. S. Kresge Co., Mo.App., 115 S.W.2d 211; Belzer v. Sears, Roebuck & Co., Mo.App., 76 S.W.2d 701. Nor is it essential to a plaintiff's case that there be evidence introduced that the water rendered the surface of the stairs slippery and dangerous. It is common knowledge that various surfaces are slippery when wet; and a jury may infer that a wet, slippery surface, in some circumstances, is not reasonably safe for an invitee's use.' Stafford v. Fred Wolferman, Inc., 307 S.W.2d 468, 473.

As pointed out in Wolferman, a jury could reasonably infer that water on a floor surface of the type here involved would make the surface slippery and dangerous. Defendant's employees in fact acknowledged that water would make the floor slippery.

In view of the defendant's actual knowledge of the condition which developed during inclement weather, this is not an instance in which the length of time that the particular water had been on the floor was significant from the standpoint of notice to the defendant. Defendant had knowledge of the condition which arose during then existing weather conditions. It was for the jury to determine whether or not the condition which the accumulation of water produced was a dangerous one and whether or not the defendant, by the exercise of reasonable care, could have made the condition safe.

Of course, plaintiff to make a submissible case must show not only negligence on the part of defendant, but also causal connection between such negligence and her injury. Causation, along with the other elements of liability, may be shown by circumstantial evidence, although the matter cannot be left to mere speculation and conjecture. 'The rule, however, does not require that there must be direct proof of the fact itself. This would often be impossible. It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred.' Pentecost v. St. Louis Merchants' Bridge Terminal R. R. Co., 334 Mo. 572, 66 S.W.2d 533, 536; Watt v. St. Louis Public Service Company, Mo.Sup., 354 S.W.2d 889, 891(1-3). See also Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756, 758-759(6); Clifford v. F. W. Woolworth Co., Mo.App., 201 S.W.2d 416, 421-422(1, 2).

Here, although plaintiff did not testify that she slipped in water and, in fact, acknowledged that she could not say that she 'stepped in a puddle,' she did testify that, after she fell, she was lying in water and that it was a sufficient accumulation to make her coat and hands wet, as well as her hair from 'mopping' the floor as she turned her head from side to side while lying where she had fallen. She could also see accumulations of water elsewhere so that there was no question as to evidence of the presence of water in the area where plaintiff fell and elsewhere in the second floor hallway.

In Smith v. Thompson, Mo.App., 258 S.W.2d 278, cited and relied upon by defendant, plaintiff was held not to have made a submissible case under the Federal Employers' Liability Act on a charge of failure to provide a safe place to work because of inadequate lighting when he testified that he did not know what caused him to fall. In view of the plaintiff's statement in that case, the court concluded that because there were so many other possible causes of the fall, not related to the negligence charged, causation would have been a mere matter of speculation. In this case, plaintiff likewise stated that she didn't know what happened. However, she also testified to matters which would have excluded several possible causes of her fall, such as that she 'stomped' her feet on a pad before entering the building; that she experienced no difficulty in walking from the entrance to the...