McVaigh v. Sandberg

513 P.2d 801, 266 Or. 409, 1973 Ore. LEXIS 370
CourtOregon Supreme Court
DecidedSeptember 10, 1973
StatusPublished
Cited by8 cases

This text of 513 P.2d 801 (McVaigh v. Sandberg) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McVaigh v. Sandberg, 513 P.2d 801, 266 Or. 409, 1973 Ore. LEXIS 370 (Or. 1973).

Opinions

HOLMAN, J.

Plaintiff brought an action for personal injuries resulting from a fall in defendants’ pharmacy. Pursuant to a jury trial, a verdict was entered for plaintiff, but the trial judge set it aside and entered a judgment n.o.v. for defendants on the ground there was no evidence of defendants’ negligence. Plaintiff appeals. The principal issue is whether there was evidence sufficient to submit to the jury of any condition of the premises which created an unreasonable risk of harm to plaintiff.

Plaintiff was a woman 65 years of age. She entered defendants’ pharmacy on a rainy Tuesday morning and, after wiping her feet on a mat inside the doorway, proceeded to walk down one of the pas[412]*412sageways between displays of goods. When she was halfway down the aisle she fell.

The accident was alleged by plaintiff to have happened as follows:

“* * * That inside the store in an aisle near the pharmacy counter, in an area where customers normally walked, the defendants allowed water or other slippery material to accumulate upon the floor. As plaintiff stepped into the area, she was caused to fall by reason of the slippery condition of the floor and the water or other slippery substance that remained upon the floor, * *

She claimed defendants were negligent in the following particulars:

“1) In allowing water or other slippery material to accumulate on the floor * * *.
“2) In failing to remove the water or other slippery material from the floor * * *.
“3) In failing to warn customers * * * of the dangerous slippery condition of the floor # * #.
“4) In failing to properly inspect the floors * * #

Plaintiff’s testimony about her fall was as follows:

“Q. On the 1st of December, 1970, did you have occasion to go into Maynard’s Pharmacy?
“A. Yes. I went in there quite often. They have a very nice selection of cards, but when I went in there and got halfway down the aisle, there were two racks with colored glasses on them, and I went to go around them and that’s when my feet went out from under me and that’s the last I remember.
«« # $ # #
“ Q. Well, now you said your feet went out from under you, is that right?
“A. Yes.
[413]*413“Q. Did you slip or just one of them go or start or did both?
“A. Everything just went out. I just felt like the whole building went down on me.”

Plaintiff also testified that Mrs. Sandberg, one of the defendants, made the following statement:

“Q. Did either Mr. or Mrs. Sandberg say anything to you about your falling?
“A. Well, Mrs. Sandberg kept saying—of course all the time I thought she was a clerk—she kept saying there’s been several people slipping but none of them went down. You’re the first one to go down. She said the man’s using a new kind of wax.”

A customer testified that Mrs. Sandberg said as follows:

“Q. Do you recall Mrs. Sandberg saying anything about the condition of the floor?
“A. She said something—no. She said a couple people had told her that they had kind of slipped on it, but that’s all.
“Q. Did she say whether anybody had fallen down before?
“A. No—, would you say the question again?
“Q. Well, you said that Mrs. Sandberg said that several people had slipped on it before?
“A. Yes.
“Q. Okay. Did she say that any of those people had fallen before?
“A. No.
“Q. Did she say anything about why they had slipped before?
“A. No.
[414]*414“Q. (By Mr. Hutchinson) Would you tell us what was said?
“A. Okay. Mrs. Sandberg mentioned that she had talked to or was going to talk to the man about the wax. That’s all I remember.”

Still another customer testified to the following statement by Mrs. Sandberg:

“Q. Do you recall Mr. or Mrs. Sandberg saying anything about the floor?
“A. Just that she was going to check with the janitor, and that was all.
“Q. Did she say why she was going to cheek with him?
“A. No.”

There was no evidence of any unevenness in the floor at the place where plaintiff fell. There was no direct evidence of any water, excess wax, or other substance upon the floor. There was no evidence of any shoe mark made by plaintiff where she fell. No one testified that there appeared to be anything unusual or noticeable about the place at which she went down.

Because the jury found for plaintiff, the evidence must be viewed on appeal in a manner as favorable to plaintiff as the testimony will permit.

It is argued that plaintiff did not testify she slipped but rather that “my feet went out from under me.” We believe plaintiff’s expression could have been treated by the jury as another way of saying that she slipped. It is also contended that plaintiff failed to prove there was any specific substance on the floor which caused her to fall. We hold that it is unnecessary for plaintiff to prove what the substance was which caused the abnormally slippery condition of the floor, [415]*415if such, condition is proved and defendants knew of it. The principal question is whether it can be inferred that the floor was covered with a slippery material, despite the fact that no one saw anything, since at least “several” people in addition to plaintiff had slipped and a new wax was being used.

There was evidence that defendants had misgivings about the condition of the floor. Otherwise, the statements about the new wax and the proposed inquiry of the janitor would not have been made. We hold that the jury could infer that the floor had become abnormally slippery since the use of the new wax. It could also infer that defendants were negligent in not doing anything about it prior to plaintiff’s fall because they knew other persons had slipped. We therefore hold that the evidence of defendants’ negligence which caused injury to the plaintiff was sufficient to go to the jury.

Defendants rely on Delacroix v. Sanders, 219 Or 494, 347 P2d 966 (1959); Anderson v. Oregon City Hospital Co., 214 Or 212, 328 P2d 769, 71 ALR2d 431 (1958); and Vinson v. Brown, 193 Or 113, 237 P2d 501 (1951). In none of the cases was there any evidence that since the use of a new kind of wax the number of other people slipping on the floor was sufficient to excite the curiosity of the possessor of the premises to the extent that he proposed to make inquiry of the person who had waxed the floor.

Defendants filed a cross-appeal in support of a request for a new trial in the event the trial court’s judgment n.o.v. in favor of defendants was not sustained upon appeal.

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McVaigh v. Sandberg
513 P.2d 801 (Oregon Supreme Court, 1973)

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Bluebook (online)
513 P.2d 801, 266 Or. 409, 1973 Ore. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcvaigh-v-sandberg-or-1973.