Richardson v. Howard Motors, Inc.

516 P.2d 1153, 163 Mont. 347, 1973 Mont. LEXIS 475
Montana Supreme Court·Decided December 20, 1973·No. No. 12398·Published·Cited by 10 cases

Opinion

MR. JUSTICE HASWELL

delivered the Opinion of the Court.

This is a damage action for personal injuries suffered by a business invitee in a slip and fall on the showroom floor of an automobile sales and repair agency in Dillon, Montana. The district court of Beaverhead County, the Hon. Prank E. Blair, district judge sitting without a jury, entered findings of fact, conclusions of law, and judgment for the defendant automobile agency. From this judgment, plaintiff appeals.

Plaintiff is Harold T. Richardson, a salesman for a postage meter service, who received injuries in a fall on the showroom floor as he was leaving the premises after a business call. Defendant is Howard Motors, Inc., the automobile sales agency and repair business on whose premises plaintiff fell.

The accident occurred on June 19, 1968, at about 9:30 a.m. Plaintiff entered premises through a door on the south side of the building for the purpose of doing business with defendant concerning a postage meter. He walked across the showroom floor to a counter where he had a short discussion with the bookkeeper, Mrs. Avis Hoerning. While waiting for Jack Howard, the owner, to return, plaintiff walked around the showroom floor and looked at a car. Thereafter, plaintiff and [349]*349Howard had a discussion concerning the postage meter and when the discussion was concluded, plaintiff started to leave the premises.

Plaintiff walked in an easterly direction across the showroom floor and upon realizing he was not going in the proper direction to exit through the south door, he made a righthand turn of aproximately 90 degrees at which time he fell to the floor. The first statement that plaintiff made after falling was '“Oh, those damn leather heels”. Plaintiff suffered personal injuries as a result of his fall for which he seeks to recover •damages from defendant.

At the time of his fall, plaintiff was wearing shoes which the ■district court found to be of “an unusual type”. Specifically the district court found plaintiff’s shoes to have:

“Leather soles with two or three nailheads protruding from the leather soles and leather heels with two rows of nails completely going around the outside edge of the heel, and with a wedge-shaped piece of steel that also protruded above the leather so that both the nails and the wedge-shaped piece of steel would come in contact with any surface on which the shoe was placed.”

The showroom floor was constructed in 1960 or 1961. It was ■composed of an asbestos or asphalt tile which the district court found to be “of common ordinary use in homes, and businesses in Montana.” Allen Sorenson, a full time employee of defendant, was responsible for its care and maintenance. The last time it had been cleaned and waxed prior to plaintiff’s fall was on June 1, 1968, some 18 days prior to plaintiff’s fall. At that time the floor was first cleaned by mopping it wdth a mixture of hot water, ammonia, “Spie and Span”, and “Wax-Off”. The floor was then twice remopped with hot water only and allowed to dry for about an hour. Then a liquid wax was poured on the floor and the floor was waxed with a hand waxer. It was then allowed to dry for two or three hours and then buffed with a buffer.

[350]*350On the morning of plaintiff’s fall about an hour prior to the accident, Sorenson had dust mopped the showroom floor. At that time he did not see any foreign or unusual substances on the floor. Jack Howard, the owner, and Mrs. Avis Hoerning, the bookkeeper, both testified they had not observed any unusual substances on the floor the morning of the accident and that the floor was not slippery. Following the accident, both testified, they observed the place where plaintiff fell and did not find any unusual substances on the floor or was the floor, in their opinion, more slippery at the place where plaintiff fell. They also testified that to their knowledge no one had slipped or fallen on the floor previously.

Plaintiff testified, at least indirectly, that the showroom floor was slippery at the time and place of his fall. Additionally, plaintiff called as an expert witness a consulting engineer who testified concerning a series of tests he had conducted prior to the trial on various types of tile floor surfaces with reference to their slipperiness and who also conducted tests in the courtroom during the trial on the tile on defendant’s showroom floor under substantially similar conditions as those existing at the time of the accident.

The thrust of his testimony was that defendant’s showroom floor was in a slippery condition at the time of plaintiff’s fall. This opinion was based on tests that he had conducted indicating that the coefficient of friction (the ratio of force required to move a weight on a floor surface) exceeded what he described as the national standard of safety with reference to coefficients of friction on floor surfaces in the United States. This so-called national standard was based on a 1948 research report entitled “Measurement of Slipperiness of Walkway Surfaces” by the National Bureau of Standards in conjunction with the National Bureau of Safety. In a nutshell, this research report fixed a coefficient of friction of .4 as the breaking point between a slippery surface and a nonslippery surface. If a given floor surface has a coefficient of friction lower than .4 [351]*351it is slippery, while a coefficient of friction higher than .4 indicates a nonslippery floor surface. The tests conducted by the witness in the courtroom indicated a coefficient of friction of ..235 for defendant’s showroom floor surface at the time of plaintiff’s fall.

Following trial, the district court entered findings of fact, •conclusions of law, and judgment for defendant accompanied by and opinion giving the basis of the decision. In substance, the •district judge found that the plaintiff had not come forth with ■any substantial evidence showing the breach of any legal duty by defendant and found that defendant had used ordinary and Teasonable care in the maintenance of its showroom floor; hence no negligence and no liability on the part of defendant.

The controlling issue on appeal is the sufficiency of the evidence to support the district court’s findings, conclusions and judgment.

Plaintiff contends that the district court erred in finding that the floor was not slippery; that plaintiff’s shoes were unusual; and that defendant breached no legal duty.

At the outset we observe that there is no direct finding by the district court that the floor was not slippery. However, we believe this is necessarily implied in the findings the district court did make and we will so treat it. Admittedly the evidence is conflicting in reference to the slipperiness of the showroom floor. It is the function of the trier of the facts, in this case the district judge, to resolve those conflicts by determining the credibility of the witnesses and the weight to be given their testimony. Our function on appeal is simply to determine whether there is substantial credible evidence supporting the findings. State Highway Commission v. West Great Falls Flood Control and Drainage District, 155 Mont. 157, 468 P.2d 753, and cases cited therein. If there is, the findings will not be disturbed on appeal. Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48, and cases cited therein.

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Richardson v. Howard Motors, Inc., 516 P.2d 1153, 163 Mont. 347, 1973 Mont. LEXIS 475 (Mo. 1973).

516 P.2d 1153 (Richardson v. Howard Motors, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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