Jones v. Safeway Stores, Inc.

314 A.2d 459, 1974 D.C. App. LEXIS 350

• Court: District of Columbia Court of Appeals
• Decided: January 28, 1974
• Docket: 6812
• Status: Published

Opinions

REILLY, Chief Judge:

This is an appeal from an order granting defendant Safeway Stores’ motion for a judgment notwithstanding the verdict, after a jury had awarded damages in the amount of $7,500 in favor of the plaintiff for injuries sustained while a customer in defendant’s store. Also challenged is the denial of plaintiff’s motion for a new trial.

The evidence shows that on April 22, 1968, Mrs. Jones (plaintiff below and appellant here), upon passing through the turnstile and preparing to enter the lower shopping area of the International Safeway Store, was struck upon the head and various other parts of the body by a shower of small jars, cans, and packages from the balcony above, used during the Christmas season as a gift wrapping area. The space adjacent to the guardrail of such balcony is used primarily as a walkway for patrons who have completed their purchases, and are leaving the upper shopping level to descend an open stairway. The plaintiff testified, however, that she failed to look up to see where the items which hit her had come from — a matter of some significance in view of the fact that no other witness, who could establish by visual observation the cause of the accident, was produced.

A friend and neighbor, one Mrs. Jenkins, called by the plaintiff, testified that she was in the store one or two days prior to the accident and observed cartons stored on the balcony next to the guardrail a foot or two above the height of the railing. No evidence was elicited, however, as to «the contents of the merchandise in these cartons, and no causal connection was shown between these items and the ones which struck the plaintiff. Prior to the close of the plaintiff’s case-in-chief, counsel attempted to recall Mrs. Jenkins to give a more detailed description of the goods she observed but, following an objection by the defense, the court refused to allow such recall.

Plaintiff first contends that it was error for the court to grant the motion for judgment notwithstanding the verdict. We disagree. “The mere happening of an accident does not impose liability or permit an inference of negligence.” Paylor v. Safeway Stores, Inc., D.C.App., 225 A.2d 312, 314 (1967), quoting from Brown v. Alabama Foods, Inc., D.C.App., 190 A.2d 257 (1963). Rather, the burden is on the plaintiff to establish (1) a standard of care, and (2) that a violation of that standard was the proximate cause of her injuries. That burden was not met. The only evidence of negligence is that two days prior to the accident a number of cartons, contents unknown, were stacked on the balcony above the location where the plaintiff was standing. Whether in fact the commodities in those boxes were the ones which struck Mrs. Jones is not known. Indeed, the jars and cans could just as likely have been dropped from the package of a customer walking beside the guardrail. Further, assuming arguendo, that the items stored next to the railing were the ones causing plaintiff’s injury, there is no showing that careless stacking by defendant’s employees caused these objects to fall. A deliberate push by a mischievous individual could have produced the same result.

The record in this case does not differ markedly from that before us in Ruml v. Giant Food, Inc., D.C.App., 290 A.2d 571 (1972). There, a directed verdict for the defendant in an action by a customer against the store for an injury sustained was upheld, when the evidence showed that the plaintiff was cut by flying glass when a single bottle fell near a stacked display of soft drink bottle cartons. This court observed that there was no showing as to how the bottle got on the floor, where it came from, or what caused it to fall. Accordingly, even though there was evidence that items of the kind which caused the injury were stacked near the place where the plaintiff was hurt, such testimony was held insufficient to permit jury consideration.

It is urged that plaintiff be given the benefit of all logical inferences, leaving the question of negligence for the jury. The jury, however, may not be allowed to engage in idle speculation. “Speculation is not the province of a jury, for the courts of this jurisdiction have emphasized the distinction between the logical deduction and mere conjecture.” (Citations omitted.) Kincheloe v. Safeway Stores, Inc., D.C.App., 285 A.2d 699, 701 (1972).

Alternatively, plaintiff suggests the applicability of the doctrine of res ipsa loquitur. It is well settled that this doctrine does not come into play in cases where the cause of the accident is unknown and the instrumentality of the injury was not shown to be under the exclusive control of the defendant. See Ruml v. Giant Food, Inc., supra; Avis Rent-a-Car-System, Inc. v. Standard Meat Co., D.C.App., 288 A.2d 243 (1972); Lee v. Safeway Stores, Inc., D.C.Mun.App., 184 A.2d 212 (1962).

Finally, plaintiff argues that the court erred in not allowing her motion for a new trial following the granting of the judgment notwithstanding the verdict. Specifically, this assertion is directed at the court’s refusal to permit the recall of Mrs. Jenkins as a witness to testify as to a more detailed description of the goods which she saw stacked on the balcony of the Safeway store a day or two prior to the incident. Even assuming the stated ground for such ruling was questionable, cf. In re D.S.A., D.C.App., 283 A.2d 829, 831 (1971), we do not find it to be prejudicial error. The proffer was to the effect that the witness would describe the merchandise she had seen as consisting of assorted sizes of gift packages, wrapped in vinyl, with various size jars and cans. Even if such testimony had been accepted, there would still have been no link between those items and the ones which struck Mrs. Jones, as numerous shelves of supermarkets are replete with jars and cans. Absent any kind of detailed description by plaintiff of the merchandise in question, such testimony by itself would have added little to the advancement of plaintiff’s cause, for the record would have remained barren of any causal connection between the stacking of the boxes and Mrs. Jones’ resultant injury.

We therefore find the judgment notwithstanding the verdict was properly entered and the motion for a new trial correctly denied.

Affirmed.