Summary
finding "no evidence at all" that oil or grease on a garage floor was caused by the proprietor or that there was actual or constructive notice where there was no evidence as to how long it had been on the floor or where it came from
Summary of this case from Sweeney v. Supervalu Inc.Opinion
[No. 177, September Term, 1963.]
Decided February 4, 1964.
NEGLIGENCE — Business Invitee, Duty Of Proprietor To — Customer At Self-Service Parking Garage Slipping On Spot Of Oil Or Grease — Judgment For Plaintiff Reversed Under Facts Of Instant Case. In this suit for personal injuries sustained by the plaintiff from slipping on a spot of oil or grease while attempting to enter her car which she had parked in the defendant's self-service parking garage, the Court reversed a judgment for the plaintiff and entered judgment for the defendant. The plaintiff was a business invitee to whom the defendant owed a duty to exercise ordinary care to keep the premises in a reasonably safe condition, but the burden was upon her to show that the defendant created the dangerous condition or had actual or constructive knowledge of its existence. There was no evidence that the condition was caused by the defendant or that there was actual notice of the condition and, since the oil or grease could have leaked from another car just a few moments before the plaintiff returned, there was a failure to make out a case of constructive notice. Although such leakage might be anticipated by a garage keeper, he is not an insurer and it would be unreasonable to hold that he must inspect continuously and sand down any and all leakage as soon as it occurs. pp. 445-446
T.G.B.
Decided February 4, 1964.
Appeal from the Superior Court of Baltimore City (SHURE, J.).
Suit for damages for personal injuries sustained in a fall in the defendant's self-service parking garage by Pauline Zappala and Morris Zappala, her husband, against Lexington Market Authority. From a judgment entered upon a jury verdict for the plaintiffs, the defendant appealed.
Judgment reversed with costs, and entered for the defendant.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, MARBURY and SYBERT, JJ.
Jeffrey B. Smith, with whom were Paul E. Burke, Jr., and Smith, Somerville Case on the brief, for the appellant.
Submitted on brief by Stafford H. Plimack for the appellees.
This appeal is from a judgment entered upon a jury verdict after the trial court denied a motion for judgment N.O.V. The plaintiff sustained injuries from slipping on a spot of oil or grease in a self-service parking garage. The plaintiff was a business invitee, to whom the proprietor owed a duty to exercise ordinary care to keep the premises in a reasonably safe condition. Nalee, Inc. v. Jacobs, 228 Md. 525, 529; Rawls v. Hochschild, Kohn Co., 207 Md. 113, 117; Moore v. American Stores Co., 169 Md. 541, 546. See also the cases in 62 A.L.R.2d 6. But the burden is upon the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence. Montgomery Ward v. Hairston, 196 Md. 595; Rawls v. Hochschild, Kohn Co., supra. In the cases last cited the issue was withdrawn from the jury.
The plaintiff in the instant case did not observe any oil or grease on the floor when she parked her car. When she returned less than two hours later, she slipped while attempting to enter her car from the passenger side. For all we know, the oil or grease may have leaked from a car occupying the space beside her car, only a few moments before she returned. She did not see the oil or grease before she slipped. She had a large paper bag in her arms. It may well be that a garage keeper should anticipate that oil or grease may occasionally leak from parked cars, but he is not an insurer and we think it would be unreasonable to hold that it is his duty to continuously inspect and sand down any and all leakage as soon as it occurs, even if we assume that periodic inspections are necessary.
There is no evidence at all that the condition was caused by the proprietor or its employees, or that there was actual notice of the condition. On the record, we think the plaintiff failed to make out a case of constructive notice.
Judgment reversed with costs, and entered for the defendant.