Martinez v. Lucky Stores, Inc.
This text of 502 P.2d 1089 (Martinez v. Lucky Stores, Inc.) 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.
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This is an appeal from a judgment entered on a directed verdict in favor of defendant and against the plaintiffs at the close of the plaintiffs’ lawsuit for personal injuries.
[413]*413Appellants, Mr. and Mrs. Osvaldo Martinez, plaintiffs below, entered defendant’s Lucky Store at Southgate Shopping Center on the evening of March 5, 1969 to purchase groceries. They attempted to cash a check in the store but were unable to do so because defendant did not have enough cash on hand. Upon leaving the store, while passing the bakery section, Mrs. Martinez slipped and fell. This lawsuit for her personal injuries was based upon defendant’s alleged negligent maintenance of its floors.
The only question presented upon appeal is whether the trial court erred in directing a verdict against the plaintiffs. The court is justified in directing a verdict only where the evidence is insufficient to support a contrary verdict or so weak that the court would feel constrained to set aside such a verdict on a motion for a new trial. Casey v. Beaudry Motor Co., 83 Ariz. 6, 315 P.2d 662 (1957). The question of negligence must go to the jury if a party has presented evidence upon which reasonable men could differ as to its tendency to support the position of the party sought to be directed out. Matsumato v. Arizona Sand and Rock Co., 80 Ariz. 232, 295 P.2d 850 (1956). We are of the opinion that the plaintiffs presented sufficient evidence to withstand the motion for directed verdict and that the judgment must be reversed.
To establish a prima facie case of negligence the plaintiff must show (1) that there was a duty on the part of defendant to maintain the floor in a reasonably safe condition; (2) a breach of that duty; (3) that the plaintiff slipped as a result of defendant’s negligence and (4) that the defendant knew or ought to have known of the dangerous condition of the floor.1 The trial court relied upon Ong v. Pac. Finance Corp., 70 Ariz. 426, 222 P.2d 801 (1950), a slip and fall case, as authority for its direction of verdict. In Ong, the plaintiff testified that all she knew about the place on the floor where she fell was that it was slippery. She also testified that she had seen puddles of a liquid substance on the floor near where she fell. She admitted that she did not see the liquid substance at the point on the floor where she had slipped and fallen. A week had elapsed since the floor had been waxed and testimony revealed that the wax had been worn off by foot traffic. Plaintiff attempted to buttress her testimony by that of a woman who had slipped and fallen while behind the counter in the same office a year after Mrs. Ong’s fall, who testified that she noticed caked wax near the place where she [the witness] had fallen. However, she did not testify that she had slipped on the caked wax.
Conversely in the case at bench, the evidence reveals that there was a foot-long scratch on the floor at the place where Mrs. Martinez had slipped and also, she noticed that the floor was slippery. Mrs. Leticia Cantu who was in the store when Mrs. Martinez fell, testified that she had difficulty walking inside the store, “. . . all the time that I was there I felt my shoes slippery.” Testimony was elicited from defendant’s cashier that she had refrained from wearing leather heels because they had a tendency to be slippery on defendant’s floors. She also observed that Mrs. Martinez had on “. . . neolite heels, which have a tendency to slip on these floors.” The defendant’s floor had been- waxed on the day prior to the accident. The plaintiff testified that a young man, presumably an employee of the defendant, stated to an assistant while they were investigating the accident that the [414]*414floor was slippery.2 All evidence considered, we believe a jury question was presented as to whether defendant maintained its floors in an unreasonably slippery condition. Hlavaty v. Song, 107 Ariz. 606, 491 P.2d 460 (1971) ; Prophet v. S. H. Kress Co., 106 Ariz. 504, 479 P.2d 167 (1970) (issue of contributory negligence properly submitted to jury because of plaintiff’s admissions as to prior fall while wearing same shoes) ; Baker v. Manning’s, Inc., 122 Cal.App.2d 390, 265 P.2d 96 (1953) ; Nicola v. Pacific Gas and Electric Co., 50 Cal.App.2d 612, 123 P.2d 529 (1942); Chase v. Parry, 326 P.2d 809 (Okl.1958). Negligence and contributory negligence are covered by the same standards. W. L. Prosser, Law of Torts § 65 (4th ed. 1971); Restatement (Second) of Torts § 464 (1965).
Where a floor is maintained in a slippery condition it can be expected that a person may slip and fall. Whether the defendant maintained its floor in an unreasonably slippery condition causing plaintiff-wife’s injuries, becomes a question to be determined by the jury. Baker v. Manning’s, Inc., supra. (The court ruled that in view of the evidence that there was a streak of wax on the floor, the jury might have inferred that wax was unevenly and excessively applied at the spot on the floor where she fell.) Sherman v. Arno, 94 Ariz. 284, 383 P.2d 741 (1963). The employees’ statements regarding the slippery condition of the floor are imputable to Lucky Stores under well-established agency principles. In re Estate of Milliman, 101 Ariz. 54, 415 P.2d 877 (1966); Hays v. The Bank of Arizona, 57 Ariz. 8, 110 P.2d 235 (1941).
For the foregoing reasons, the judgment is reversed and remanded for new trial.
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502 P.2d 1089, 18 Ariz. App. 412, 1972 Ariz. App. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-lucky-stores-inc-arizctapp-1972.