Erickson v. Walgreen Drug Co.

232 P.2d 210, 120 Utah 31, 31 A.L.R. 2d 177, 1951 Utah LEXIS 167

• Court: Utah Supreme Court
• Decided: June 1, 1951
• Docket: 7444
• Status: Published

Opinions

WOLFE, Chief Justice.

Action by the respondent against the Walgreen Drug Company and the Salisbury Investment Company to recover damages for personal injuries sustained by her when she slipped and fell on the terrazzo floor of an entranceway in a building constructed and owned by the Investment Company and leased, in part, by it to the Drug Company. In the court below a jury returned a verdict of $8,000 against the Drug Company but found no cause of action against the Investment Company. The Drug Company, hereinafter referred to as the appellant, prosecutes this appeal, relying principally upon the contention that there is no evidence to sustain a finding of negligence on its part.

The appellant operates a drug store on the southeast corner of Main and Second South Streets in downtown Salt Lake City, Utah. The entranceway to the store in which the respondent fell is at the northwest corner of the building and consists of a revolving door in the center with an ordinary swinging door on each side thereof. The doors are recessed from the sidewalk and between them and the sidewalk is a terrazzo slab, sloping slightly toward the street and away from the building in a fan shape and joining the sidewalk approximately eight to nine feet from the doors. A canopy covers the entranceway.

At the time of the accident it was raining and the streets were wet. As the respondent approached the appellant’s store with the intention of entering therein for the purpose of making a purchase, she noticed several people standing under the shelter of the canopy. After stepping from the cement sidewalk onto the terrazzo floor of the entranceway and walking four or five steps at an ordinary gait, she reached out to open the right-hand swinging door when her right foot slipped on the terrazzo surface and she fell, sustaining a fracture of the femur of her right leg. The terrazzo surface was wet, apparently from water tracked in from the street by persons entering the store. The respondent testified that she noticed that the floor of the entranceway was wet before she fell. She was wearing shoes with Cuban leather heels approximately one and one-half inches high.

In her complaint the respondent alleged (1) that the Investment Company was negligent in the manner in which it constructed and maintained the terrazzo floor in that it became very slippery when wet, and (2) that the appellant knew or should have known of the propensities of the floor to become slippery when wet and was negligent in failing to warn customers using the entranceway of the hazard involved or to obviate the slippery condition by covering the floor with mats or by the use of other means. Under the lease between the Investment Company and the appellant, the former, as lessor, was obligated to make all exterior and structural repairs to the building, including repairs to the sidewalk and entrances to the building.

As heretofore stated the appellant’s principal contention upon this appeal is that there is no competent evidence in the record to sustain a finding of negligence on its part in the particulars alleged by the respondent set out above. After a careful examination of the record we are convinced that this contention must fail. It thus becomes necessary to briefly summarize the evidence.

One Raymond J. Ashton, the associate architect of the building, testified that the specifications for the building required carborundum to be spread in the finishing coat in the terrazzo floor to form a grit to give secure footing and make the use of mats unnecessary; that he recently examined the terrazzo slab and found the carborundum grit present; that the plans called for a slope of l/16th of an inch to the foot in the floor of the entranceway; that the floor sloped in two directions but the slope was almost im-preceptible and unusually flat for an entranceway; and that in his opinion the type of construction employed in the entranceway in question was the safest type that his profession had been able to employ.

A university professor, with a doctor’s degree in physical chemistry, and engaged at the time of the trial in a surface chemistry project sponsored by the Navy, one George R. Hill, testified that he had performed certain experiments on the terrazzo floor in question and also on the city sidewalk adjoining it and that they revealed that both the terrazzo and the sidewalk had the same co-efficient of friction; that water on a surface acts as a lubricant so that if a foot started to slide it would continue to slide more easily than were the surface dry; that although there were quite a number of irregularities in the surface of the terrazzo slab which were apparent to the touch, and although it was “fairly worn,” the carborundum had not worn off; that in his opinion the floor was a safe surface to walk upon; and that in the last few years terrazzo had been used more extensively in entranceways than either marble, tile, cement or asphalt.

One Frank Caffall, a tile and terrazzo contractor, testifying on behalf of the plaintiff, stated that he had examined the terrazzo slab in question but because it was constructed of black marble and green cement, it was difficult to tell whether there was any non-slip aggregate in it, although when he slid his foot over the surface it felt as though there were none; that the surface of the terrazzo had been ground smooth and was “quite slippery” when wet; that even though terrazzo. is constructed with non-skid abrasive, through constant wear the abrasive comes less effective; and that in his opinion a terrazzo surface when wet is more slippery than the wet surface of other materials commonly used in store entranceways because terrazzo is ground smoother.

There was also testimony adduced that about half of the entranceways to the stores and business houses along Main Street from South Temple Street to Fourth South Street in Salt Lake City, a distance of four blocks, were constructed of terrazzo ; that most of these entranceways were un-inclosed like the appellant’s, but that a few had storm doors; that some of the storekeepers placed mats in their entrance-ways when it stormed and that the appellant had, at times, placed mats over the center of the terrazzo slab leading directly into the revolving door. However, there was no evidence that mats had been used for protecting the sections of the entranceway leading to the swinging doors on each side of the revolving door.

The duty owed to the respondent by the appellant is stated in Section 343 of the American Law Institute’s Restatement of the Law of Torts as follows:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

“(a) knows, or by the exercise of reasonable care could discover the condition which, if known to him, he should realize as involving an unreasonable risk to them, and,

“(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and

“(c) invites or permits them to enter or remain upon the land without exercising reasonable care

“(i) to make the condition reasonably safe, or

“(ii) to give a warning adequate to enable them to avoid the harm * * *”

From all of the evidence, we think a jury could reasonably conclude that the appellant knew or should have known of the propensities of its terrazzo entranceway to become slippery when wet and should have realized that because of those propensities it created an unreasonable risk to business visitors who would not discover the slippery condition and realize the risk involved therein. It is true that the respondent had crossed the terrazzo slab many times prior to the accident; that on this particular occasion she knew the terrazzo floor was wet and as a reasonable person should have realized the increased possibility of her slipping. Yet according to Mr. Caffall, the terrazzo slab was “quite slippery” when wet and felt as though it did not contain any abrasive; that the slab was smooth and being constructed of terrazzo was more slippery when wet than the wet surface of other materials commonly used in en-tranceways. Mr. Hill agreed that the slab had sustained considerable wear. As to these matters, we cannot, as a matter of law, charge the respondent with knowing. While the floor appears to have been initially constructed so as to be reasonably safe for travel, a jury could conclude that the surface had, from continual wear, worn smooth and the abrasive become less effective to secure footing.

While there is no evidence of any incident occurring which would have put the appellant on notice that the terrazzo was slippery when wet, such evidence is not necessary to establish liability on the part of the appellant. The. latter was in the actual possession of the building and had a duty to search out defects in the premises in order that they be reasonably safe for the presence of business visitors.

This is not the case of a business visitor slipping on some foreign substance such- as oil, which had carelessly been spilled on the floor only a short time prior to the accident. In such cases it is often held as a matter of law that the storekeeper had no knowledge nor could he be charged with knowledge of the presence of the foreign substance which caused the fall. But in the instant case the jury could find that through constant wear the terrazzo slab had over a period of time become smooth, resulting in it being very slippery when wet. Although there was evidence that no one else had complained of falling on the terrazzo, slab, it may have been so slippery when wet that the appellant should have known of that condition and realized that it subjected business visitors to an unreasonable risk. It is true that the terrazzo slab became wet from water tracked in from the. street by persons entering the store, and that the appellant had no control over this element and probably with no amount of effort could have kept the surface dry. But the terrazzo surface was not so large that it was impracticable to cover it with a mat to secure footing, or to post a sign advising business visitors of the hazard.

The appellant urges that the verdict rendered by the jury is inconsistent and contrary to the instructions in that the jury found in effect that the Investment Company was not negligent in its construction or maintenance of the terrazzo entranceway, but nevertheless found that the appellant was negligent in failing to give warning of a slippery condition or in not taking steps to obviate the condition. As a prerequisite to a finding that it was negligent, the appellant argues that it was necessary for the jury to find that the Investment Company was negligent.

As to the duty upon the Investment Company the court charged the jury that:

“* * * the Salisbury Investment Company constructed the en-tranceway to the [appellant’s] store where [respondent] fell and had the exclusive right to change the entranceway and material from which said entranceway was constructed; and if you find from a preponderance of the evidence that said entranceway was not constructed or maintained in a reasonably safe manner in that when wet the entranceway became slick, slippery, and not reasonably safe to walk upon, and that the Salisbury Investment Company knew or in the exercise of reasonable care should have known of said condition, then the Salisbury Investment Company was negligent; * * *”

With respect to the duty upon the appellant, the jury ivas instructed that:

“* * * it was the duty of [the appellant] to exercise reasonable care to keep the entranceway to its store reasonably safe for the use of its customers; and in this regard you are instructed that if you shall find from a preponderance of the evidence that the entranceway was not reasonably safe in that the floor of the entranceway had become wet from rain water. and slick and slippery and that [the appellant] knew or in the exercise of reasonable care should have known of said condition, and failed to exercise reasonable care to remedy said condition and make said entranceway reasonably safe for the use of its customers, by means of warning signs to advise of the slick condition or by covering the terrazzo entrance with rubber mats or other substances to prevent slipping, then [the' appellant] was negligent; * * *”

Clearly, the verdict exonerating the builder from negligence and finding the lessee culpable is not inherently inconsistent nor contrary to the instructions. The jury may have concluded that the entranceway was neither negligently constructed nor maintained by the Investment Company, but that due care dictated that when the entranceway became wet the appellant employ means to eliminate the slippery condition existing or give warning thereof. Another possibility is that the jury may have concluded (1) that the terrazzo floor while constructed in a safe manner, through continuous wear had worn smooth, thereby creating an unreasonable risk to business visitors using the entranceway when it became wet, but (2) that the Investment Company had no knowledge of the slippery condition nor could it be charged with such knowledge; (3) that the appellant being in the actual possession of the premises, either knew or should have known of the slippery condition of the terrazzo when wet, realized that it constituted an unreasonable risk to business visitors, and should have either given them warning thereof or taken steps to obviate the condition.

In regard to this latter possible basis for the jury’s verdict, the case of Cardall v. Shartenburg’s Inc., 69 R. I. 97, 31 A. 12, is enlightening. There the plaintiff brought an action to recover damages for injuries sustained by her when she slipped and fell on the wet terrazzo floor of a vestibule in the defendant’s store. The trial court, treating the plaintiff’s complaint as alleging solely that the defendant was negligent in. its construction of the floor, directed a verdict in favor of the defendant because the evidence revealed that the floor had been constructed according to established standards. Upon appeal, the Supreme Court of Rhode Island explained that were the plaintiff’s case based solely upon negligent construction, the direction of a verdict in favor of the defendant would doubtedlessly be correct because there was no evidence that if the defendant had employed due care, it would have known that the floor was not being properly constructed, and would have had it properly constructed. But, stated the court, the plaintiff did not allege improper construction of the floor, but that “by reason of the manner of the construction of the floor and by reason of the slope of it,” the use of the vestibule was extremely dangerous when wet as the defendant well knew or should have known, and that due care dictated that it employ means to insure the safety of persons using the vestibule. The court declared that there was evidence from which a jury could have found negligence on the part of the defendant in the particular alleged by the plaintiff and consequently reversed the case for a new trial.

One further assignment of error is made by the appellant. The trial court refused to allow in evidence testimony that approximately 4,000 to 5,000 persons entered the appellant’s store every day but that during the fifteen year period prior to the respondent’s fall, the management had never received a single complaint or report about anyone slipping on the terrazzo slab. In excluding this testimony, we conclude that the lower court erred.

Evidence of the absence of accidents occurring prior to the accident complained of may not be admissible to establish that an unsafe condition did not exist at the time of the accident in question. That matter we need not decide here. But such evidence is clearly admissible to prove that a possessor of land had no knowledge nor could he be charged with knowledge that an unsafe condition existed, particluarly when the unsafe condition complained of is latent. In the instant case the appellant can only be liable if the terrazzo floor when wet subjected business visitors to an unreasonable risk and the appellant either knew or by the exercise of reasonable care could have discovered that such a condition existed. Evidence that thousands of business visitors had walked through the entranceway in all kinds of weather and that none of them had ever complained to the appellant of slipping on the terrazzo slab, while not conclusive on the question, as heretofore pointed out, does have probative value upon the question whether the appellant knew or should have known of the existence of an unreasonable risk to customers entering and leaving the store.

In Sistrunk v. Audubon Park Natatorium, La, App., 164 So. 667, an action was brought against an amusement company for injuries sustained by a boy who fell from a slide at a swimming pool. Evidence that hundreds of other persons used the slide without injury was held admissible for the purpose of showing that the operators of the slide were not negligent in failing to anticipate and guard against such an accident. Similarly, in Campion v. Chicago Landscape Co., 295 Ill. App. 225, 14 N. E. 2d 879, in an action for injuries to a golf player struck in the eye by a ball claimed to have been due to the manner in which the golf course was laid out, evidence that there had been no other accidents was admissible for the purpose of showing lack of knowledge of the danger on the part of the defendant. See the cases cited on this question at 128 A. L. R. 606.

To sustain her contention that such testimony was properly rejected by the trial court, the respondent relies on the case of Barlow v. Salt Lake & Utah Railway Company, 57 Utah 312, 194 P. 665. In that case the plaintiff was injured on March 14, 1918. The proffered testimony was that no passenger was injured in alighting from cars after that date. The rejection of that testimony presents a different principle than the ruling under consideration in this case. Evidence of the non-occurrence of accidents subsequent to the accident complained of is not material as it does not tend to establish lack of knowledge on the part of a defendant at the time of the accident in question.

In order to make the questioned evidence admissible, it was not necessary that the appellant establish similarity of conditions. The proffered testimony covered a period of fifteen years and this was of sufficient duration to include days when the weather was stormy as well as when the weather was clear. On some days conditions might be worse than those encountered by the respondent and on other days conditions might be more favorable.

It is true that there is evidence that on some previous occasions when it was storming, a rubber mat had been placed out by the appellant over the terrazzo slab. However, the mat was placed in front of the revolving door only and did not cover the entire surface of the entrance-way. Particularly, it did not cover the portion of the en-tranceway in front of the doors on either side of the revolving door. This portion of the entranceway is traversed by the public as well as the portion in front of the revolving door, and it was here that the respondent fell.

The judgment below is reversed and the case is remanded for a new trial. Costs awarded to the appellant.

WADE and McDONOUGH, JJ., concur. CROCKETT, J., not participating.