Summary
In Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589 (1943), the Supreme Court of Ohio considered a case involving a customer's slip-and-fall on mayonnaise that another customer had dropped on the floor of a food market less than three minutes earlier.
Summary of this case from Besack v. The Kroger Co.Opinion
No. 29444
Decided June 9, 1943.
Negligence — Storekeeper not insurer — of customers' safety — Duty to exercise ordinary care toward customers — Injury by slipping on greasy substance dropped on floor by another customer — No evidence of lack of ordinary care by proprietor or employee — Proof necessary as prerequisite to recovery — Knowledge of hazard and neglect to remove or give notice — Or existence of danger justified inference of lack of ordinary care — Agency by estoppel inapplicable, when.
1. Those operating mercantile establishments owe the duty to exercise ordinary care toward their customers, but are not insurers of the customers' safety while on the premises.
2. Where a customer in a food market slips on a greasy substance dropped on the floor by another customer a short time before, and sustains injury by falling, there can be no recovery against the market proprietor when the evidence does not disclose a lack of ordinary care on his part or on the part of his employees.
3. In the situation where a store customer is injured as a result of slipping on a greasy substance dropped on the floor by another customer, it must be established as a prerequisite to recovery against the storekeeper (1) that he or one of his employees had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly, or (2) that the danger had existed for a sufficient time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care.
4. The doctrine of agency by estoppel, as it might be invoked by a plaintiff in a tort action, rests upon the theory that one has been led to rely upon the appearance of agency to his detriment. It is not applicable where there is no showing of induced reliance upon an ostensible agency.
CERTIFIED by the Court of Appeals of Summit county.
The Wagner Provision Company, an Ohio corporation, operated a retail food market at 172 South Main street in the city of Akron, and dealt in meats as a part of its business. The room tenanted was some 25 feet wide by 90 feet deep, running in an easterly and westerly direction. The company's refrigerated counters of porcelain and glass, containing meats, extended along the south side of the room for a considerable distance. On the other side were compartments or stalls from which dairy products, bakery goods, vegetables, etc., were sold. Some of these compartments were rented to persons or concerns having no connection with the Wagner Provision Company, but there were no signs or notices to show that businesses independent of the provision company were being conducted. There was an aisle through the middle of the storeroom, the floor of which was of a composition material known as terrazza.
In the late afternoon of February 3, 1941, Mrs. Agnes B. Johnson walked into the market, bought some meat and started to leave. She saw some other meat she wished to purchase and, in returning to the meat counter, slipped on a greasy substance on the floor and fell, injuring her head, left side and particularly her back, left elbow and left hip.
She later commenced an action to recover damages for such personal injuries against the Wagner Provision Company in the Court of Common Pleas of Summit county.
At the trial it developed that another customer had dropped a glass jar of mayonnaise or salad dressing on the floor in defendant's market. It broke and the contents splattered. Felix Garlando, in charge of selling vegetables and an employee of the Mass. Market Company, which rented its space from the defendant, witnessed the incident, promptly secured a broom and dust pan or box from the rear of the storeroom and swept up as much of the mayonnaise as he could. According to his testimony, he then retraced his steps to get a mop. It was during this interim that plaintiff slipped on a part of what remained of the mayonnaise.
The only evidence tending to connect the defendant company itself with knowledge that the mayonnaise had been spilled, was given by a Mrs. Bowman, another customer. On direct examination she stated:
"Q. Did the clerks in back of the meat counter — did they look and see what was there? A. Yes.
"Q. Did they see this contents — this salad dressing on the floor?
"Mr. Kelly: I object.
"A. Yes.
"The Court: The objection is sustained.
"Mr. Kelly: I move that the jury be instructed to disregard the answer.
"The Court: It is objectionable. It is the duty of the jury to disregard that question and answer.
"Mr. Finley: Note my exception.
"Q. State whether or not, Mrs. Bowman, you saw any of the glass at the spot or the place where this oil dressing or salad dressing lay?
"Mr. Kelly: I object.
"The Court: She may answer.
"Mr. Kelly: I except.
"A. Well, the clerk back of the counter looked when the salad dressing dropped.
"Q. Is that one of the meat clerks?
"Mr. Kelly: I object.
"Mr. Finley: I will withdraw that.
"Q. What clerk was that, that looked? A. Well, it was the clerk that was waiting on the meat counter
"Q. Where was he standing at the time that he looked at it? A. Well, almost directly in front of me. He was waiting on the woman beside me."
Mrs. Bowman further said that the plaintiff slipped and fell two minutes after the mayonnaise had been swept up.
The plaintiff testified that to the best of her knowledge it was three to five minutes from the time she entered the store until she fell. Garlando estimated it was two and one-half minutes after the jar of mayonnaise was dropped when the plaintiff suffered her mishap.
Plaintiff called as her witnesses two of the defendant's several clerks who were on duty behind the meat counter on the afternoon of February 3, 1941. Both of them denied having seen the jar dropped or the mayonnaise on the floor.
At the conclusion of plaintiff's evidence, counsel for the defendant moved that the evidence be withdrawn from the jury and the jury instructed to return a verdict for the defendant. This motion was overruled. The defendant then rested and renewed its motion for a directed verdict, which was likewise overruled.
A verdict in the sum of $5,000 was returned in favor of the plaintiff by ten of the jurors. This was followed by a timely motion for a new trial and also by a motion for judgment notwithstanding the verdict. The court sustained the latter motion, entered judgment for the defendant and overruled the other motion without consideration on its merits.
Thereupon, plaintiff took an appeal on questions of law to the Court of Appeals, where, by a divided vote, the judgment of the Court of Common Pleas was reversed for error in rendering judgment for the defendant notwithstanding the verdict for the plaintiff, and the cause was remanded for a trial de novo. The appellate court refused to grant the request of the plaintiff to enter judgment for her on the jury's verdict.
Finding the judgment it had announced in conflict with one pronounced by the Court of Appeals of the Eighth Appellate District, in the case of Morgan v. American Meat Co., Inc., 37 Ohio Laws Abs., 327, 7 Negligence Cases, 1007, 46 N.E.2d 669, in which a motion to require a certification was overruled, the record was certified to the Supreme Court for review and final determination.
Plaintiff has filed in this court a cross-assignment of error in which it is asked "that the judgment of the Court of Appeals be affirmed insofar as it reverses the action of the trial court in rendering judgment non obstante veredicto, and reversed insofar as the Court of Appeals failed and refused to enter judgment in favor of this appellee and cross-appellant on the verdict of the jury in the trial court and in remanding the cause to the trial court for a retrial * * *."
Mr. Raymond J. Finley, for appellee.
Messrs. Wise, Roetzel Maxon and Mr. William A. Kelly, for appellant.
In considering this case, four propositions suggest themselves:
1. The defendant had nothing to do with creating the hazard encountered by plaintiff.
2. A very brief period elapsed between the dropping of the jar of mayonnaise by a customer and the fall of the plaintiff.
3. Except for the dubious conclusion of one witness, there is no evidence that the employees of the defendant knew of the mayonnaise on the floor.
4. If upon any theory defendant may be charged with the knowledge possessed by Felix Garlando, actually employed by another, Garlando took immediate steps to remedy the situation in an ordinary and usual way.
The rule which is recognized generally is thus stated in the first paragraph of the syllabus in the case of S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A. L. R., 132, as follows:
"Owners or lessees of stores owe a duty to the patrons of the store to exercise ordinary care to prevent accident and injury to the patrons while in the store, but they are not insurers against all accidents and injuries to such patrons while in the store."
For applications of the rule, see J. C. Penney Co. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 100 A. L. R., 705; Cleveland Athletic Assn. Co. v. Bending, 129 Ohio St. 152, 194 N.E. 6; Sherlock v. Strouss-Hirshberg Co., 132 Ohio St. 35, 4 N.E.2d 912. Compare Hardgrove v. Isaly Dairy Co., 139 Ohio St. 641, 41 N.E.2d 862.
To be entitled to recover in cases of the character presently before us, it is necessary for a plaintiff to show:
1. That the defendant through its officers or employees was responsible for the hazard complained of; or
2. That at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or
3. That such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care.
With reference to the subject of liability for negligence, this court laid down the following rule in the case of Englehardt v. Philipps, 136 Ohio St. 73, 23 N.E.2d 829, in the second paragraph of the syllabus:
"Legal liability for negligence is based upon conduct involving unreasonable risk to another, which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances."
Here, we are convinced that the evidence offered by plaintiff did not establish lack of ordinary care on the part of the defendant, or that its conduct fell short of the standard represented by the conduct of reasonably prudent men in a position similar to that of the defendant.
The Court of Appeals said in its opinion:
"It appears to a majority of the members of this court that the conduct of defendant's agents, as well is the conduct of Garlando, whose agency a jury could reasonably conclude the defendant was estopped to deny, was such that a jury could, in the exercise of reasonable judgment, find for the plaintiff."
As has already been pointed out, there is no evidence other than the surmise of a witness that the defendant's admitted employees knew of the mayonnaise on the floor.
Attempting to connect Garlando with the defendant company, counsel for the plaintiff asked him:
"Q. Does Mr. Hofman [defendant's store manager] give you orders as to how the vegetable stand shall be handled? A. Well, if I want to put it that way — the way I can answer — he wants nothing but the best, and everything neat and everything clean around there.
"Q. Does he give you orders to that effect? A. He does."
Of course, this testimony would not tend to place Garlando in the position of an employee of the defendant, since the relationship of master and servant is dependent not only upon the right to direct the conduct of the servant, but also upon the right to dictate the mode and manner of doing the work.
Nor de we thing "agency by estoppel" is pertinent to this case. That doctrine, as it might be invocable by a plaintiff in a tort action, rests upon the theory that one has been led to rely upon the appearance of agency to his detriment. Rubbo v. Hughes Provision Co., 138 Ohio St. 178, 34 N.E.2d 202. It is usually applied in those cases where credit has been extended, action has been induced, delay has been obtained, or some other change in position has occurred, in reliance upon the appearance of authority. 1 Mechem on Agency (2 Ed.), 512, Section 724: Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., (C. C. A. 10), 49 F.2d 146, 149.
In the present case there is no evidence of any reliance by the plaintiff upon Garlando as an ostensible employee or representative of the defendant through any inducement of the defendant, and therefore "agency by estoppel" has no place in the controversy. So far as the record discloses, plaintiff did not even know of the existence of Garlando.
As we view the matter, then, plaintiff failed to make out a case of actionable negligence against the defendant, and for that reason the trial court properly rendered judgment for the defendant, notwithstanding the verdict returned for the plaintiff.
A great number of cases in which customers have received injuries by slipping or stumbling in mercantile establishments, and have later brought suit against the storekeepers without success, might be cited; but it would serve no useful purpose to encumber this opinion by doing so. A few representative authorities containing facts somewhat resembling those in the present controversy and in which recovery was denied are as follows: Bornstein v. R. H. White Co., 259 Mass. 34, 155 N.E. 661; Rom v. Huber, 93 N.J. Law, 360, 108 A. 361, aff., 94 N.J. Law, 258, 109 A. 504; Miller v. Gimbel Bros., Inc., 262 N.Y. 107, 186 N.E. 410; Lee v. Meier Frank Co., 166 Ore., 600, 114 P.2d 136; Starberg v. Olbekson (Ore.), 129 P.2d 62; Lundgren v. Gimbel Bros. Inc., 191 Wis. 521, 210 N.W. 678.
It is our conclusion that the judgment of the Court of Appeals must be reversed and the judgment of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., HART, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.