Cloonan v. Food-4-Less of 30th & Weber, Inc.

529 N.W.2d 759, 247 Neb. 677, 1995 Neb. LEXIS 87
CourtNebraska Supreme Court
DecidedMarch 31, 1995
DocketS-93-444
StatusPublished
Cited by48 cases

This text of 529 N.W.2d 759 (Cloonan v. Food-4-Less of 30th & Weber, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cloonan v. Food-4-Less of 30th & Weber, Inc., 529 N.W.2d 759, 247 Neb. 677, 1995 Neb. LEXIS 87 (Neb. 1995).

Opinions

Fahrnbruch, J.

In this appeal, Pamela Cloonan claims that the district court erred when, at the close of her case in chief, it directed a [678]*678verdict against her and dismissed her slip and fall lawsuit against an Omaha grocery store, Food-4-Less of 30th and Weber, Inc. (Food-4-Less).

We affirm the actions of the district court for Douglas County.

STANDARD OF REVIEW

On appeal from an order of a trial court dismissing an action at the close of the plaintiff’s evidence, this court must accept the plaintiff’s evidence as true, together with reasonable conclusions deducible from that evidence. Jones v. Goeden, 232 Neb. 177, 440 N.W.2d 199 (1989); Henderson v. Forman, 231 Neb. 440, 436 N.W.2d 526 (1989). A directed verdict is proper only where an issue should be decided as a matter of law. Jones, supra.

FACTS

Accepting Cloonan’s evidence as true and giving Cloonan the benefit of all reasonable conclusions deducible from the evidence, the record reflects the following:

On November 27, 1990, Cloonan became aware from news reports that a freezing drizzle had fallen, but that it had stopped by approximately 11:30 a.m. The news reports indicated, however, that the weather conditions were expected to be worse later in the day. Between 1 and 1:30 p.m., Cloonan’s husband drove her to the Food-4-Less store located on North 30th Street in Omaha. Cloonan noticed that the ground was moist and the temperature was chilly but that there was no moisture in the form of falling snow or drizzle.

The Food-4-Less store has a sidewalk in front of the building. Ramps at various locations slope down from the sidewalk to the store’s parking lot. The store front has two doors, one near the south end and the other near the north end of the building. Cloonan exited her husband’s vehicle near the curb of the sidewalk by the south door. She needed to take only one step from the door of the automobile to the curb where a rubber mat had been placed in front of the south door. Cloonan did not notice the condition of the sidewalk in front of the store at the time she entered the store to purchase groceries.

Upon completing her shopping, Cloonan exited the store [679]*679through the north door, pushing a cart containing the groceries she had purchased.

Because the ramp directly in front of the north door looked “glassy and slippery,” Cloonan decided to go along the sidewalk to the second ramp which was located farther north. She noticed that there was salt on the sidewalk in front of the north door and that the condition of the sidewalk was “okay.”

As Cloonan walked toward the second ramp, she noticed that the sidewalk in front of the store was wet but was not slippery. She looked to her right into the parking lot to find where her husband had parked their car. Cloonan noticed that there was ice at the corner of the building and that the second ramp also appeared slippery. However, the record reflects that Cloonan never walked near the corner of the building nor did she ever reach the second ramp.

Two or three feet before the second ramp, Cloonan slipped and fell on the sidewalk. Evidence indicated that Cloonan sustained an injury to her right knee. Cloonan sued Food-4-Less seeking recovery for her injuries. In an amended petition filed on October 3, 1991, Cloonan alleged that she slipped and fell on ice on the sidewalk at the Food-4-Less store and that this ice created a dangerous condition for the store’s customers, that Food-4-Less failed to exercise reasonable care to prevent a dangerous condition, that Food-4-Less failed to salt the area upon which Cloonan fell, and that Food-4-Less knew or should have known that there was ice on the sidewalk.

On July 8, 1992, Food-4-Less filed a motion for summary judgment. The district court overruled that motion, and the case proceeded to trial.

At trial, Cloonan testified that on the day she fell, the Food-4-Less sidewalk upon which she was walking was wet, but she stated at least three times that the sidewalk was “okay. ” Cloonan further testified she was not aware of any ice beneath her before she fell. At no time during her in-court testimony did Cloonan testify that there was ice on the sidewalk where she fell. Although Cloonan testified that “a split second before I fell I could tell I was on something slippery,” she did not identify the “something slippery” as ice.

Hazel Henderson, a Salvation Army bellringer, testified that [680]*680she saw Cloonan fall and went to her assistance. From where Henderson had been standing, between the building and the ramp in front of the north door, she had a clear view of the sidewalk. She testified that there was ice in the parking lot and on the ramps but that the area where she had been standing on the sidewalk had been either salted or cleared off.

Cloonan testified that after she fell, her husband assisted her to their car and called the Food-4-Less store from a phone booth on the way home to tell the employees that “somebody should check the sidewalk, the sidewalk is icy and that his wife had just fallen. ” Cloonan’s husband did not testify to this phone call when he was on the witness stand.

Thomas Wise, an assistant manager of Food-4-Less, testified that he was not on duty on the day Cloonan fell, but that he received a phone call from Cloonan’s husband the day after the accident. An accident report made pursuant to Cloonan’s husband’s telephone call to Wise reflects that Cloonan’s husband reported that his wife had “slipped on some ice.” Upon receiving the report from Cloonan’s husband, Wise interviewed Food-4-Less employees and found that none of the employees at the store knew of Cloonan’s fall.

Wise testified that during icy weather it was his normal procedure as an assistant manager, as was the procedure of the floor runner, to watch the condition of the sidewalk. The floor runner’s duties include shoveling and salting the sidewalk.

Charles Johnson, another assistant manager who was acting manager on the day Cloonan fell, also testified as to the store’s normal procedure for observing and clearing the sidewalk during icy weather conditions. Johnson testified that he normally arrives at the Food-4-Less store by 6 a.m. and that on days with icy weather he immediately spreads ice melt on the surface of the sidewalk outside the doors. The floor runner arrives at 8 a.m. and is responsible for putting ice melt on the sidewalk. Johnson testified that the floor runner is outside the store approximately every half hour to bring grocery carts into the store and is responsible for evaluating the conditions outside the store and applying ice melt as needed.

Cloonan’s doctor, Lynn A. Crosby, M.D., testified by video deposition that on December 12, 1990, he examined Cloonan, [681]*681who was complaining of pain in her right knee. Crosby testified that Cloonan told him she fell or slipped on some ice coming out of a store. Crosby further testified that Cloonan’s injuries were consistent with a slip on ice.

At the conclusion of Cloonan’s case in chief, Food-4-Less moved for a directed verdict.

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Cloonan v. Food-4-Less of 30th & Weber, Inc.
529 N.W.2d 759 (Nebraska Supreme Court, 1995)

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Bluebook (online)
529 N.W.2d 759, 247 Neb. 677, 1995 Neb. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cloonan-v-food-4-less-of-30th-weber-inc-neb-1995.