El Grande Market No. Two, Inc. v. McAlpin

475 P.2d 961, 13 Ariz. App. 302, 1970 Ariz. App. LEXIS 824
CourtCourt of Appeals of Arizona
DecidedNovember 5, 1970
DocketNo. 2 CA-CIV 884
StatusPublished
Cited by2 cases

This text of 475 P.2d 961 (El Grande Market No. Two, Inc. v. McAlpin) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
El Grande Market No. Two, Inc. v. McAlpin, 475 P.2d 961, 13 Ariz. App. 302, 1970 Ariz. App. LEXIS 824 (Ark. Ct. App. 1970).

Opinion

HATHAWAY, Judge.

Conchita McAlpin was a customer in the grocery store of appellant around noon on July 17, 1967. Upon leaving the store with groceries in her arms Miss McAlpin slipped on an apricot pit that was left on the ramp in front of the store and fell, sustaining injuries. She brought this suit and received a jury verdict in the sum of $17,200.

Defendant’s first claim of error is that the plaintiff failed at trial “to establish that the condition causing her injury was known to the appellant, or that it had been in existence for a sufficient length of time prior to injury for the appellant in the exercise of reasonable care to find and correct it.” We will view the evidence in a light most favorable to sustaining judgment of trier of fact, McFadden v. Wilder, 6 Ariz.App. 60, 429 P.2d 694 (1967), and we will not disturb the verdict if reasonably supported by the evidence, Whitly v. Moore, 5 Ariz.App. 369, 427 P.2d 350 (1967).

Testimony indicated that the pit had not been present at 9:00 when the store opened. Part of the testimony of the manager of the store was as follows:

“Q. You are an old produce man; aren’t you ?
A. Yes, sir, I am.
Q. In fact, that’s your specialty. Would you say that seed could have been there about three hours since you opened?
[303]*303A. No, I would say it hadn’t been there over thirty, forty minutes. But I’m just talking from my own experience. Not, nothing that I saw or nothing.
Q. Your best estimate it was there thirty or forty minutes?
A. Thafs just my estimate. From the dampness of it, see, it’s hot during the summer there and they dry out awful fast. In other words, they darken, and this wasn’t dark yet.
Q. So your estimate is thirty to forty minutes?
A. Yes, sir.
Q. It may have been three hours?
A. Possibility. I’m not going to argue with you there.” (Emphasis added)

The defendant argues that the testimony set a maximum time and leaves the minimum open to conjecture. Although the initial response did set an outer time limit, the witness was pinned down to an unequivocal time estimate of 30 to 40 minutes. The witness was not rehabilitated by subsequent examination to reinstate his prior answer.

Defendant further contends that this testimony only proves that the pit was separated from the rest of the fruit for 30-40 minutes, not that it was on the ramp at that time; in other words, that it could have been placed there by other persons just minutes before Miss McAlpin came out of the store. The jury could reasonably have concluded that in all probability one usually doesn’t carry an apricot pit around with him for 20-30 minutes and then drop it, particularly an individual prone to discard an apricot pit in such a fashion. The fall occurred on a Saturday when about 200 customers had visited the store. The store manager testified that it was common to find debris in front of the store, and that the ramp was on store property. Further testimony established that there was a produce department in the store that sold apricots. We believe that the evidence was sufficient to permit the jury to reasonably infer that the defendant had constructive knowledge of the condition, and a prima facie case in negligence was made. Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168 (1934); Salt River Valley Water User’s Ass’n. v. Blake, 53 Ariz. 498, 90 P.2d 1004 (1939). Were it not for the estimate of time that the pit had been on the ramp, given by the store manager, evidence concerning the defendant’s constructive knowledge may well have been deficient. Berne v. Greyhound Parks of Arizona, Inc., 104 Ariz. 38, 448 P.2d 388 (1968) ; McGuire v. Valley National Bank, 94 Ariz. SO, 381 P.2d 588 (1963).

Defendant next objects to the court’s instruction number 2 which is as follows:

“A greater duty rests upon one engaged in selling merchandise, to discover whether a dangerous condition exists on the premises, than devolves upon his invitee who has a right to assume that the premises are reasonably safe for her use.” Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799 (1953); Heth v. Del Webb’s Highway Inn, 102 Ariz. 330, 429 P.2d 442 (1967).

Since the court did not qualify this instruction by saying that “a proprietor’s duty is to exercise reasonable care for an invitee’s protection,” the complaint is made that the jury could have inferred that the proprietor’s duty was greater than that of ordinary or reasonable care which is required by law, Berne v. Greyhound Parks of Arizona, Inc., supra. The defendant also argues that qualification of this instruction given elsewhere in the charge to the jury does not temper its prejudicial effect.

The instruction which represents a correct statement of the law, Heth v. Del Webb’s Highway Inn, supra; Glowacki v. A. J. Bayless Markets, supra, appears in context as follows:

“Now, Ladies and Gentlemen, to help you in determining whether one or both of the parties to this action were negligent I will outline the law applicable to [304]*304a situation such as we have here, that is, a store owner or operator and a customer. Now the owner of a store must use reasonable care to maintain the premises which the public is invited to use in such a condition that the circumstances and, that under the circumstances of the particular case they are reasonably safe for a customer to use. And a business invitee or customer has the right to rely upon the owner exercising reasonable care in making the premises safe for such use. And the customer has the right to assume that the premises are reasonably safe for her use as such invitee or customer. Now a greater duty rests upon one engaged in selling merchandise to discover whether a dangerous condition exists on the premises than devolves upon the invitee or customer who has a right to assume that the premises are reasonably safe for her use. Now also, Ladies and Gentlemen, if some person caused debris or refuse to be upon the premises of the defendant El Grande Market Number Two, the defendant has a duty to use reasonable measures commensurate with the risk involved to discover that debris or refuse and to remove it before it injures some customer.

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Bluebook (online)
475 P.2d 961, 13 Ariz. App. 302, 1970 Ariz. App. LEXIS 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/el-grande-market-no-two-inc-v-mcalpin-arizctapp-1970.