Holguin v. Smith's Food King Properties, Inc.

737 P.2d 96, 105 N.M. 737
CourtNew Mexico Court of Appeals
DecidedApril 16, 1987
Docket8821
StatusPublished
Cited by6 cases

This text of 737 P.2d 96 (Holguin v. Smith's Food King Properties, Inc.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holguin v. Smith's Food King Properties, Inc., 737 P.2d 96, 105 N.M. 737 (N.M. Ct. App. 1987).

Opinion

OPINION

DONNELLY, Chief Judge.

This is a slip and fall case. Plaintiff appeals from a judgment granting defendant’s motion for summary judgment in favor of Smith’s Food King Properties, Inc. The single issue presented on appeal is whether the trial court erred in awarding summary judgment and finding no genuine disputed issue of fact as to defendant's negligence. We affirm.

FACTS

Plaintiff, together with her husband and daughter, went to defendant’s grocery store in Las Cruces. After returning some video tapes and renting additional movies, plaintiff walked away from the counter carrying only her purse. After plaintiff walked from ten or twenty feet, the cashier called to her that she had forgotten to pick up her change. As plaintiff turned in response, she slipped, fell and injured herself.

Plaintiff’s husband, Robert Holguin, assisted her in getting up. The clerk from the video counter told plaintiff she should not have called plaintiff’s name the way she did. Another cashier summoned the store manager and also told plaintiff the floor had recently been cleaned. Plaintiff alleged that the floor was shiny and slick and that there were no warning signs posted in the area.

Plaintiff’s husband testified in his deposition that, after the accident, he tested the spot where his wife fell. By sliding his shoe over the floor, he ascertained that the floor would be slippery for anyone wearing leather-soled shoes.

Plaintiff also related in her deposition that, Douglas Duerre, the grocery manager, spoke to her shortly after her fall. He asked plaintiff if she wanted to go to the hospital, assured her the store would take care of her bills, and gave her an insurance claim form. On the form, the manager wrote his name and “Accident Happened at Smith's # 482, 1:00 p.m., Sunday the 17th, Smithes [sic] will take proper responsibility.”

The store manager encouraged plaintiff to obtain medical attention. The plaintiff was able to stand up and walk and went directly home. The next morning plaintiff was feeling worse and went to the emergency room of the hospital. She was treated for an injury to her hip and wrist and, subsequently, incurred several thousand dollars in medical expenses. Plaintiff later filed suit against defendant alleging that, inter alia, defendant had waxed or buffed the floors or had applied some type of cleaning solution and was negligent in failing to maintain its store floors in a safe condition and failing to warn plaintiff of the danger posed by its waxed floors.

Thereafter, defendant moved for summary judgment, supported by an affidavit of Wendell Hull, a mechanical engineer. Hull’s affidavit recited that he had investigated the floor where the accident occurred, and inspected the maintenance procedures and type of floor wax used by the store. Hull’s affidavit further recited that the type of floor wax utilized was of a “non-skid, slip-proof type” and the maintenance procedures by the store were consistent with good commercial practice and with the floor wax manufacturer’s recommendations. Hull also recited that he performed friction tests to evaluate the skid resistent qualities of the floor at the location of the accident and the skid resistenee values were “very high” and adequate for waxed vinyl tile flooring. (Hull performed these tests approximately eight months after plaintiff’s accident.)

Plaintiff filed a response to defendant’s motion for summary judgment. Plaintiff’s affidavit recited that after she fell, she was informed by a store employee that the “floor had been recently cleaned,” and “it appeared to me that the floor was very shiny, very slick, and that it had just been waxed.” Plaintiff also stated that the store manager told her he would give her an insurance claim so she could have her medical bills and injuries taken care of and that the manager wrote on the form that the store would assume “proper responsibility” for her injuries.

At a hearing on the motion, plaintiff and defendant both referred to deposition testimony of plaintiff’s husband, who testified that he believed his wife was wearing leather-soled shoes at the time of the accident; that he was wearing rubber-soled shoes; that immediately after his wife fell, he tested the floor and the floor was slippery.

Following a hearing on the motion, the trial court granted defendant’s motion for summary judgment.

SUMMARY JUDGMENT

Plaintiff argues that the trial court erred in awarding summary judgment and cites as evidence of negligence the fact that: (1) after she fell an employee commented that the floor had been recently cleaned; (2) there were no warning signs; (3) the floor appeared shiny; (4) the grocery store manager stated that the store would take care of her bills; and (5) plaintiff’s husband, immediately after the accident, tested the spot where his wife fell and ascertained that the floor was slippery to persons wearing leather-soled shoes.

Defendant was not an insurer of plaintiff’s safety but did owe her the duty to exercise ordinary care to keep the premises in a safe condition for plaintiff’s use as a business invitee. See SCRA 1986, UJI Civ. 13-1319. If a dangerous condition existed on defendant’s premises, caused by defendant or its employees, or if the defendant had actual knowledge of such a condition, then it had a duty to exercise ordinary care to correct it, or to warn plaintiff of the presence of the condition. Id.; see also Mahoney v. J.C. Penney Co., 71 N.M. 244, 377 P.2d 663 (1962).

In Kitts v. Shop Rite Foods, 64 N.M. 24, 323 P.2d 282 (1958), our supreme court upheld a trial court’s directed verdict for defendant where plaintiff slipped and fell on a waxed floor in a grocery store. The supreme court held:

We are not prepared to say that proof of a slippery spot on a floor, standing alone, will support an inference that it resulted from the proprietor’s negligence. De Baca v. Kahn, 49 N.M. 225, 161 P.2d 630 * * * * [T]he doctrine of res ipsa loquitur does not apply in slip and fall cases. Persons frequently sustain falls where and when others do not. There is a total absence of any evidence in this case as to how or by whom the slippery spot was created. No evidence was introduced tending to show that the defendant was negligent in the treatment of the floor or that the type of polish used was improper or was used in excessive amounts. The creation of a slippery condition by the defendant is not a reasonable inference from the whole of the evidence. A slippery condition may arise temporarily in any store though the proprietor has exercised due care.

Id. at 27-28, 323 P.2d at 284 (citation omitted).

In the case before us, plaintiff introduced evidence that the floor was recently cleaned by defendant’s employees, that it was shiny, and that it was slippery to a person wearing leather-soled shoes. Plaintiff’s husband, however, did not verify with certainty the fact that plaintiff was actually wearing leather-soled shoes at the time of her fall.

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Cite This Page — Counsel Stack

Bluebook (online)
737 P.2d 96, 105 N.M. 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holguin-v-smiths-food-king-properties-inc-nmctapp-1987.