Opinion
No. 21621.
December 3, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, T. J. SEEHORN, J.
William H. Sanders and Caldwell, Downing, Noble Garrity, all of Kansas City, for appellant.
Walter W. Calvin, Kansas City, for respondent.
This is an action for personal injuries sustained by plaintiff when she fell on the floor of defendant's store. Trial resulted in a verdict and judgment for $1,266, from which the defendant appealed.
Plaintiff's petition alleged that she, as a prospective customer at defendant's store, entered the same and walked along an aisle to a ribbon counter, at which point she slipped and fell; that her injuries resulted from defendant's action — "* * * in negligently allowing and permitting a slick and slippery foreign matter, or foreign substance, to be and remain upon the floor of its said storeroom * * *"; and that "defendant negligently failed to remove the aforesaid substance or substances from that portion of the aforesaid floor, notwithstanding the fact that, in the exercise of the proper degree of care, said agent, servant and employee could, and should, have known thereof, for a sufficient length of time, prior to her falling thereon, * * * to have enabled him, in the exercise of the proper degree of care, to have removed the same from said floor, and, thus and thereby, have made and rendered the same reasonably safe for the defendant's customers, * * *." Defendant pleaded the general issue and contributory negligence.
It is undisputed that defendant operated a retail store at 3124 Troost Avenue in Kansas City, Missouri; that plaintiff entered the store about noon as a customer, and that she fell to the floor. She testified that the store is one large room with counters regularly spaced and the aisles in regular rows; that she entered a door at the east end of the store and proceeded westward along an aisle to the ribbon counter, and as she attempted to turn to face the ribbon counter she slipped and fell; that there were 36 fluorescent tubes illuminating the aisle where she was walking, and that it was "well illuminated"; that there were no loose boards, cracks, holes or defects in the floor; nor was there anything about the floor which would cause her to stumble. Concerning the cause of her fall, she testified:
"Q. And when you reached the ribbon counter what, if anything, happened there? A. My foot slipped, and I fell very hard. * * *
"Q. Which foot slipped? A. My right foot. * * * I fell kind of to one side. * * * I was down on my knees, and one foot was back under me. * * * I was on my right side, kind of on my right side, with my left foot under me. * * *
"Q. * * * — while you lay on the floor, did you observe anything about the condition of the floor so you can describe it to this jury? A. Yes, sir, I did.
"Q. Well, just tell what you saw on the floor. A. It was a greasy substance, oily substance on the floor, and it was on my hands.
"Q. Did you feel it with your hands? A. Yes, sir, I did.
"Q. Could you see it on the floor? A. Yes, sir, I did. * * *
"Q. * * * Will you just describe it the best you are able, as to the substance you saw on the floor? A. I couldn't tell whether it was grease or oil; a substance.
"Q. Well, you could feel it. Was it the same as you felt all around you? A. Yes, it was.
"Q. Did you recognize or remember the color it was? A. Kind of brown."
She further testified that it had been raining or misting, and when she entered the store "I noticed the floor was damp around there, but I couldn't tell whether it was oil or not. * * * I didn't know whether it was oil or not. It was a greasy substance.
"Q. You saw this substance? A. Yes.
"Q. And you described it as grease or oil? A. Yes, sir. * * * I didn't say it was oil. I said an oily substance."
Throughout plaintiff's testimony she described the substance which caused her to slip and fall as "an oily or greasy substance." There is no other description of its nature, character or composition. Plaintiff admitted that, when defendant's manager assisted her from the floor, she did not say anything to him about the condition of the floor or what caused her to fall. She was taken to a rest room in the store and shortly thereafter went to her home.
Plaintiff was the only witness to testify concerning the cause of her fall. Her young son was in another part of the store and did not arrive at the scene of the accident until she was being assisted from the floor. He gave no testimony pertaining to the condition of the floor. The only other witness tendered by the plaintiff was the doctor who testified relative to her injuries.
Under our view of this case, it is unnecessary to detail the evidence touching plaintiff's alleged contributory negligence, or her injuries.
Defendant offered no evidence but, at the close of plaintiff's case, submitted a motion for a directed verdict which was overruled. After judgment defendant filed, in the alternative, a motion for new trial and a motion for judgment in accordance with its prior motion for a directed verdict, which were overruled.
Defendant's first contention is that its motion for a directed verdict should have been sustained because there is no evidence that defendant knew or, by the exercise of reasonable care, could have discovered the foreign substance on the floor in time to have made the condition reasonably safe or to give adequate warning to plaintiff.
In the brief plaintiff states her theory of the applicable law as follows: "* * * it was the defendant's continuing duty to exercise reasonable care to maintain the floor of its store room in a reasonably safe condition for the usual and ordinary use by its invitees and customers, * * *; and, a breach or violation of that duty, which became, and was, the direct or proximate cause of the plaintiff's injury, would constitute actionable negligence on its part." This is not a correct statement of the law applicable to the issue and the facts in this case. Plaintiff's petition pleaded, and her instructions submitted, the question whether this substance had been on the floor a sufficient length of time for the defendant, in the exercise of ordinary care, to have known of its existence and thereafter negligently failed to have it removed. The argument in her brief is not consistent with the pleaded and submitted issue.
Plaintiff entered defendant's store as an invitee, and the law governing liability under such circumstances is succinctly stated in Sec. 343, Restatement of Torts, p. 938, in the following language:
"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
"(a) Knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
"(b) Has no reason to believe that they will discover the condition or realize the risk involved therein, and
"(c) Invites or permits them to enter or remain upon the land without exercising reasonable care
"(i) To make the condition reasonably safe, or
"(ii) To give a warning adequate to enable them to avoid the harm * * *." (Italics ours.)
This statement of the law has many times been approved by the courts of this state. See Devine v. Kroger Grocery Baking Co., 349 Mo. 621, 162 S.W.2d 813; Hudson v. Kansas City Baseball Club, Inc., 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858; Vogt v. Wurmb, 318 Mo. 471, 475, 300 S.W. 278; Small v. Ralston-Purina Co., Mo.App., 202 S.W.2d 533, 538; Smith v. Sears, Roebuck Co., Mo.App., 117 S.W.2d 658, 661; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390.
In the last cited case, the court said, 165 S.W.2d at page 393; "The basis of liability of the possessor of land to his business invitee for injuries resulting from a condition existing on the premises is the possessor's superior knowledge. * * * He is liable `if, but only if, he knows the condition' which involves an unreasonable risk of harm to his invitee." The knowledge of the unsafe condition may be actual or constructive but there must be proof of one or the other. There are many cases in which the evidence disclosed that the unsafe condition had existed for such a length of time that the court could say the defendant was charged with constructive knowledge of such condition, or at least it was a jury question. But in the instant case there is no evidence of defendant's actual knowledge of the condition or of the length of time the substance was on the floor or how it got there. It is matter of speculation and conjecture. One guess would be as good as another. State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 593, 116 S.W.2d 99, 101. There being no evidence that defendant or its agent put the substance on the floor, the burden was on plaintiff to show that it was there a sufficient length of time after defendant knew, or by the exercise of ordinary care, could have known of its presence in time to have removed it or given warning of the danger. Absent such evidence, plaintiff's case fails. Keen v. City of St. Louis, Mo.App., 189 S.W.2d 139, 142.
Plaintiff cites many cases to support her contention that a submissible case was made. We have examined those citations and most of them do not involve the question of an invitee being upon defendant's property, but rather involve the question of liability arising out of a contractual relationship between the parties or the failure of an agent to perform a duty imposed upon him. As an example of this type of liability, plaintiff cites Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, and Graff v. Lemp Brewing Co., 130 Mo.App. 618, 109 S.W. 1044. The basis of the Lambert suit was common law negligence for insufficient lighting of a stairway and failure to repair a loose step. The quotation of one sentence from the Graff case will immediately distinguish it, and similar cited cases, from the issue before us. At page 623, of 130 Mo.App., at page 1045 of 109 S.W., the court stated: "The facts before us show that defendant, (landlord) with knowledge of the existence of the defective floor, agreed as a part of the contract for the renting of the premises to make suitable repairs, and that, when the injury occurred (to the tenant), a sufficient time had elapsed for the performance of this covenant." There was no question of knowledge or lack of knowledge of the existing condition involved in either case. Such cases are not controlling here.
Plaintiff also cites Smith v. Sears, Roebuck Co., Mo.App., 84 S.W.2d 414, and Hogan v. S. S. Kresge Co., Mo.App., 93 S.W.2d 118. The evidence in the Smith case was that the muddy water, on which plaintiff slipped and fell, had been there all day, and that the manager of the store had ordered an employee to keep the entryway clean. In the Hogan case the evidence was that the ice cream, on which plaintiff slipped and fell, had been on the floor a sufficient length of time to charge the defendant with constructive knowledge of its existence. There are many similar cases, but an examination of them will disclose that the plaintiff offered some evidence of the existence of the unsafe condition for a sufficient length of time that the court could say it was an issue of fact for the jury whether defendant had knowledge of such condition; or the evidence disclosed that the defendant had caused the object or substance to be there. Those cases are not controlling because, as we have said, there is not a scintilla of evidence tending to prove that defendant knew the substance was on the floor or how long it had been there or how it got there. Failure of proof of this vital issue defeats plaintiff's claim.
The judgment should be reversed. It is so ordered.
All concur.