Montgomery Ward & Co. v. Lamberson

144 F.2d 97, 1944 U.S. App. LEXIS 2755

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 1944
• Docket: No. 10378
• Status: Published

Opinions

MATHEWS, Circuit Judge.

At all pertinent times, appellant, an Illinois corporation, operated a retail store in Idaho Falls, Idaho. The store faced west. In front of it a sidewalk ran north and south. The store had four front doors — - doors by which it could be entered from the sidewalk. On November 26, 1941, Lydia Lamberson, wife of Chester A. Lamberson,¹ entered the store by one of its front doors, remained about 30 minutes and left by the same door. That door was seven feet from the sidewalk. A ramp² extended from the door to the sidewalk. The ramp was made of rough tile. It was almost, but not quite, level, being one inch higher at the door than at the sidewalk. Upon leaving the store, Lydia Lamberson slipped and fell on the ramp and was injured. She and her husband, hereafter called appellees, brought an action against appellant for damages in the sum of $25,195, alleging that her injuries were caused by appellant’s negligence. Answering, appellant denied that allegation. Jury trial was waived, the case was tried by the court, findings of fact and conclusions of law were stated, and judgment was entered in appellees’ favor for $1,945. From that judgment this appeal is prosecuted.

Appellees alleged and appellant admitted that Lydia Lamberson entered the store for the purpose of purchasing merchandise from appellant. Therefore she was an invitee, and appellant owed her the duty of maintaining its premises in a reasonably safe condition and of exercising reasonable care to protect her from injury.³ If appellant violated that duty, it was negligent; otherwise not.⁴

Appellees alleged, in substance, that while Lydia Lamberson was in the store, appellant, by its agents, servants and employees, threw water on the ramp; that the ramp was thereby made wet and slippery and was in that condition when Lydia Lamberson left the store; that by reason thereof, Lydia Lamberson slipped, fell and was injured; that appellant was negligent in throwing water on the ramp, failing to mop the water from the ramp, failing to put ashes or sand on the ramp, allowing the ramp to be in a wet and slippery condition, and failing to warn Lydia Lamberson thereof; and that appellant’s negligence was the proximate cause of Lydia Lamberson’s injuries. Appellant denied all these allegations.

The court did not find, nor was there any evidence from which it could have found, that appellant or any agent, servant or employee of appellant threw water on the ramp, or put or placed any water on the ramp, or caused any water to be on the ramp. The court did find that the ramp had water on it when Lydia Lamberson left the store, and that by reason thereof, Lydia Lamberson slipped, fell and was injured. These findings are supported by evidence and hence are accepted by us as correct.

How the water got on the ramp does not appear. The accident occurred on a bright, sunny day. There was no rain or snow. Lydia Lamberson entered the store about 3 p.m. and left about 3:30 p.m. The ramp was dry — had no water on it — when she entered the store. No one, so far as the evidence shows, saw any water on the ramp prior to the accident. The water had not been on the ramp more than 30 minutes when the accident occurred. It may have been there only a few seconds.

The court did not find, nor was there any evidence from which it could have found, that the fact that the ramp had water on it was known or should have been known to appellant prior to the accident. The court nevertheless concluded that appellant was negligent in permitting the ramp to have water on it, failing to put ashes, sand, salt or matting on the ramp, and failing to notify Lydia Lamberson of the fact that the ramp had water on it— a fact of which appellant itself, so far as the evidence shows, had no notice, actual or constructive.

The conclusion was unwarranted, for the rule is that, “In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to know of it.”⁵ In other words, the owner or occupant must have had actual or constructive notice of the dangerous condition. The rule is applicable and has often been applied to cases like the present one — cases in which it was sought to hold a storekeeper liable for injuries sustained by an invitee in slipping and falling on the storekeeper’s premises. Some of these cases are cited in the margin.⁶ Many others could be cited.

In every such case, the plaintiff has the burden of proving that the defendant had actual or constructive notice of the dangerous condition which is claimed to have been the cause of the accident.⁷ So here, appellees had the burden of proving that appellant had actual or constructive notice of the fact that the ramp had water on it. The burden was not sustained. It would have been sustained if appellees had proved that appellant, by its agents, servants and employees, put the water on the ramp; for if appellant did that, it necessarily had notice of the fact.⁸ But there was no such proof.

Mere proof of the fact that an accident occurred did not shift the burden of proof to appellant,⁹ nor did that fact create a presumption that appellant was negligent. Instead, the presumption was, and is, that appellant exercised reasonable care.¹⁰ The doctrine of res ipsa loquitur has no application to the facts of this case.¹¹

The duty owing by appellant to Lydia Lamberson was not that of an insurer,¹² but was merely that of maintaining its premises in a reasonably safe condition and of exercising reasonable care to protect her from injury.¹³ There was no evidence that appellant violated that duty.

Judgment reversed.

1 The Lambersons are citizens of Idaho.

2 In the record, the ramp is called by various names — “entrance,” “entranceway,” “floor,” “ramp,” “tile,” “vestibule,” etc.

3 Williamson v. Neitzel, 45 Idaho 39, 260 P. 689; Martin v. Brown, 56 Idaho 379, 54 P.2d 1157; Hall v. Boise Payette Lumber Co., 63 Idaho 686, 125 P.2d 311.

4 Martin v. Brown, supra.

5 45 C.J., Negligence, § 245, p. 837.

6 F. W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970; Sears, Roebuck & Co. v. Johnson, 10 Cir., 91 F.2d 332; Campbell v. F. W. Woolworth & Co., 8 Cir., 117 F.2d 152; F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667; John Thompson Grocery Co. v. Phillips, 22 Colo.App. 428, 125 P. 563; Brown v. S. H. Kress Co., 66 Ga.App. 242, 17 S.E. ; Antibus v. W. T. Grant Co., 297 Ill.App. 363, 17 N.E.2d 610; J. C. Penney, Inc. v. Kellermeyer, 107 Ind.App. 253, 19 N.E.2d 882, 22 N.E.2d 899; Montgomery Ward & Co. v. Hansen, 282 Ky. 188, 138 S.W.2d 357; Powell v. L. Feibleman & Co., La.App., 187 So. 130; Tariff v. S. S. Kresge Co., 299 Mass. 129, 12 N.E.2d 79; McKeighan v. Kline’s, 339 Mo. 523, 98 S.W.2d 555; Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 189 A. 649; Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410; Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Gorman v. Simon Brahm’s Sons, 298 Pa. 142, 148 A. 40; DeVelin v. Swanson, R.I., 72 A. 388; Great Atlantic & Pacific Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470; Lundgren v. Gimbel Bros., 191 Wis. 521, 210 N.W. 678.

7 See cases cited in footnote 6.

8 Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243; Hatfield v. Levy Bros., 18 Cal.2d 798, 117 P.2d 841; Kellogg v. H. D. Lee Mercantile Co., Mo.App., 160 S.W.2d 838; Westbrook v. Onondaga County, Sup., 36 N.Y.S.2d 494; Saunders v. A. M. Williams & Co., 155 Or. 1, 62 P.2d 260.

9 F. W. Woolworth Co. v. Williams, supra; Sears, Roebuck & Co. v. Johnson, supra.

10 F. W. Woolworth Co. v. Williams, supra; Sears, Roebuck & Co. v. Johnson, supra; Powell v. L. Feibleman & Co., supra; Thompson v. Giant Tiger Corp., supra.

11 F. W. Woolworth Co. v. Ney, supra; Powell v. L. Feibleman & Co., supra; Thompson v. Giant Tiger Corp., supra; Pratt v. Great Atlantic & Pacific Tea Co., supra; Gorman v. Simon Brahm’s Sons, supra.

12 F. W. Woolworth Co. v. Williams, supra; Sears, Roebuck & Co. v. Johnson, supra; F. W. Woolworth Co. v. Ney, supra; John Thompson Grocery Co. v. Phillips, supra; Brown v. S. H. Kress Co., supra; Antibus v. W. T. Grant Co., supra; J. C. Penney, Inc. v. Kellermeyer, supra; Montgomery Ward & Co. v. Hansen, supra; Pratt v. Great Atlantic & Pacific Tea Co., supra; S. S. Kresge Co. v. Fader, supra; Great Atlantic & Pacific Tea Co. v. Logan, supra.

13 See cases cited in footnote 3.