Mahoney v. JC Penney Company

CARMODY, Justice (dissenting).

Sometimes, a dissent relates to only a portion of an opinion; on other occasions, it may express disagreement with the application of a rule of law or the facts. However, now and then, as in the present case, it seems essential to protest to all parts of a decision, both as to the facts and the law. I do so on this occasion, because, in my judgment, three of my brethren are, by their opinion, misapplying the facts, overruling valuable precedents in this state, and announcing a rule of law which is without authoritative support in any jurisdiction in the country.

First, I would controvert the construction placed by the majority on the testimony of the manager of the defendant, particularly that portion set out in the opinion. The majority say that this testimony establishes a recurring condition and that there was a mere once-a-day cleaning and inspection. Considering the quoted testimony in the light most favorable to the plaintiff, the most that can be said is that it establishes that gum was found on the stairs “on more than one occasion.” This is hardly a recurring condition, such as was found to exist in a few of the cases relied upon by the majority, which will be hereinafter discussed. However, even though quoting the testimony, the opinion completely ignores the statement of the manager that he inspected the store from time to time on Saturday. Only by disregarding this testimony can it be implied that the store was cleaned and inspected not more than once each day. Also, to construe the word “daily” to mean “only once each day” is neither in accordance with the testimony, nor is such a construction in accordance with the definition of the word “daily.” According to Webster’s New International Dictionary, Second Edition, “daily” means “every day” or “day by day.” I submit that the construction placed by the majority on the testimony is contrary to the record in the case. Absent such a construction as the foundation of the opinion, the entire theory upon which the decision is based would collapse.

In the second place, the majority cite and quote from several New Mexico slip- and-fall cases, at least two of which (De Baca v. Kahn, 1945, 49 N.M. 225 , 161 P. 2d 630 ; and Barrans v. Hogan, 1956, 62 N.M. 79 , 304 P.2d 880 ) are determinative ■of the questions involved, even if we were to adopt what I believe is the strained construction of the testimony taken by the majority- However, the majority refuse to iollow the clear rule set out in the De Baca .case, wherein it was said (quoting from Rom v. Huber, 1919, 93 N.J.L. 360 , 108 A. .361) :

“ 'The defendant is not an insurer of the safety of his patrons against accidents. It must appear that the condition which produced the fall had either been in fact brought to the previous notice of the defendant, or, failing in proof of such actual notice, the condition had existed for such a space of time as would have afforded the defendant sufficient opportunity to make proper inspection as to the safety of the place.’ ”

The Barrans case is even closer factually to the one which we are considering than the De Baca case, inasmuch as it involved a fall on a particle of food. We do not know from the opinion whether the food was dropped by a third party or by an employee of the cafeteria, but, in any event, this court reversed and denied recovery, because the evidence was wholly lacking .as to knowledge, or any inference of knowledge, of the dangerous condition on the part of the defendant at the time of the accident. Actually, the Barrans case answers the problem involved herein, with the following statement:

“ * * * To say that the defendant did have knowledge that particles of food might fall to the floor at any time, is not sufficient to- charge him with negligence as the cause of plaintiff’s misfortune.”

The majority also mention Kitts v. Shop Rite Foods, Inc., 1958, 64 N.M. 24 , 323 P.2d 282 ; Barakos v. Sponduris, 1958, 64 N.M. 125 , 325 P.2d 712 ; and Gonzales v. Shoprite Foods, Inc., 1961, 69 N.M. 95 , 364 P.2d 352 . However, all three of these cases concerned claimed negligent acts on the part of the defendant’s employees, and therefore involved constructive notice on the part of the employer; so they are not in point as to the instant case, as we are here concerned with the effect of the act of a third party and when responsibility devolves upon the storekeeper for such an act.

In any event, it seems that my brethren refuse to recognize or follow the precedents of this court, and therefore seek support from other jurisdictions. In so doing, they add an additional element to their hypothesis, namely, that of foreseeability, or anticipated action or non-action, as establishing negligence. Of course, to me, this is not warranted, nor supported by the evidence. I fail to see how the fact that there may have been gum on the stairs on other occasions has anything to do with the fact that the unfortunate plaintiff here fell upon a particular piece of gum on Saturday, the 9th day of May, 1959. There is no showing in the record that any previous accident occurred, nor is there anything except conjecture and speculation that the gum upon which the plaintiff slipped was on the steps for any amount of time, whether seconds, minutes or hours. There was therefore no evidence from which the jury could determine that the defendant breached its duty to discover and remedy the condition within the time and manner required of a reasonable person.

The difficulty with the approach made by the majority is that the cases cited do not support their position, absent a showing by the plaintiff that the cause of the fall existed for such a length of time that the defendant should have taken corrective steps. There are statements in some of the cases cited which, taken by themselves, would seem to support today’s opinion, but other language in these same cases, not quoted by the majority, makes it apparent that the time factor is all-important and that the burden is on the plaintiff to show that the condition which caused the fall existed for such a length of time that the proprietor, in the exercise of ordinary or reasonable care, should have known of it and corrected it. Even the cases from California, upon which my brethren seem to place their greatest reliance, require that the plaintiff must produce more than a mere showing of negligent or sloppy housekeeping, in order to recover from the storekeeper for the acts of third persons.

It is, of course, recognized that the cases involving defects in the physical plant, such as improper lighting, worn steps, lack of handrails, and the like, are in entirely different categories than those involving customers’ dropping trash. See, 61 A.L.R.2d HO, § 7(a), at 124. In the physical-plant-defect cases, constructive notice is imputed, from the mere existence of the defect, and the owner’s negligence is continuing in allowing the defect to exist. Contrariwise, however, with the throwing of trash, or gum as in this case, a general knowledge of the propensities of customers to throw trash on the floor does not make the owner negligent — the negligence is the leaving of the trash on the floor for an unreasonable time, after it is known or should have been known. The burden is always on the plaintiff, in trash situations, of showing the time element, either as to the existence of the particular item, or, at least, a failure to make reasonable inspections. Unless the plaintiff can show this, there is no standard from which the jury can determine what was reasonable or unreasonable, other than by speculation and guesswork.

As stated above, even the California cases recognize this requirement. Thus, in Bridgman v. Safeway Stores, Inc., 1960, 53 Cal.2d 443 , 2 Cal.Rptr. 146 , 348 P.2d 696 cited by the majority, the California Supreme Court said:

“It obviously follows that the owner of a store must make reasonable inspections of such portions of his premises as are open to his customers, and, in this connection, it has been held that evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it. (Here follow three court of appeals cases in which the supreme court points out the time during which there was no inspection.) * * * As declared in these cases, it is ordinarily a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered by an owner who exercised reasonable care.” (Emphasis added.)

The above statement immediately follows a statement quoted in the majority opinion and must be considered as a part of the California rule.

In the instant case, there is no evidence as to when the last inspection was made (statements in the briefs to the contrary are not supported in the record), nor was any effort made by the plaintiff to prove knowledge, or constructive knowledge, on the part of the defendant, of the existence of gum or other dangerous condition, so that there might have been an opportunity to correct it.

Although understandably not cited by the majority, a very recent case from the District Court of Appeals of California, Perez v. Ow, 1962, 19 Cal.Rptr. 372 , makes this very pertinent statement:

“Plaintiff had the burden of producing evidence of the existence of the condition complained of for at least a sufficient time to support a finding that defendants had constructive notice thereof. This she failed to do.”

In this last-mentioned case, the court cites several other California slip-and-fall cases, in order to distinguish them from the case therein decided, in each of which the time question was discussed, and it is pointed out how, in some instances, the time requirement had been satisfied, and, in others, not.

It is not my purpose to attempt to discuss each of the cases cited by the majority, because to do so would unduly lengthen this dissent. However, with reference to the quotations from Sattler v. Great Atlantic & Pacific Tea Company (D.C.W.D.La. 1955), 18 F.R.D. 271 , and Whalen v. Phoenix Indemnity Co. (5 C.C.A.1955), 222 F.2d 121 , both cited in the opinion, it is true that the Whalen case, as stated, was decided on the basis of res ipsa loquitur, whereas in the Sattler case the district judge determined that the doctrine did not apply. Nevertheless, in the Sattler case, a directed verdict was granted for the defendant, and the court’s comment as quoted by the majority was not necessary for the decision. Many of the other cases cited by the majority relate to structural defects, and, as stated above, in such cases a different rule applies than in those involving the dropping of refuse by third parties.

There is no question but that it is the duty of a storekeeper to maintain the store’s facilities so that they are reasonably safe for invitees. With this statement I have no quarrel, nor with the statement by the majority that a storekeeper is not an insurer and that res ipsa loquitur does not apply. The opinion cites cases in support of that. Strangely enough, however, two of the cases so cited relate to slipping and falling on a wad of gum, and in both of these cases it was held that the plaintiff had failed in her proof as to the length of time that the condition had existed, so as to constitute constructive notice thereof. These two cases are Montgomery Ward & Co. v. Hansen, 1940, 282 Ky. 188 , 138 S.W. 2d 357 ; and Saari v. S. S. Kresge Company, 1960, 257 Minn. 290 , 101 N.W.2d 427 .

The opinion cites an additional California Appeals case to support the statement that “Negligence may be established by circumstantial evidence, which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.” This is the case of McKenney v. Quality Foods, Inc., 1957, 156 Cal.App.2d 349 , 319 P.2d 448 . This case is not authority for the position taken by the majority, inasmuch as the evidence in that case showed that no inspection had been made for a period of more than two hours. Here, again, the California court reaffirmed the holdings of the courts in that jurisdiction, that the time element must be shown. Although it may be somewhat repetitious, there is no such evidence as to the time in the instant case, and I have serious doubt as to any showing of actionable negligence at any time, let alone on the day in question.

To me, the outstanding fallacy of the opinion is that portion which states, in part, as follows:

“ * * * the rule most conducive to justice is that rule which holds that, absent a showing of due care, plaintiff ne.ed not prove that defendant had actual or constructive knowledge of the specific item forming part of that pattern of conduct, recurring incident, etc.”

Several cases are cited in support of this statement, which must be briefly analyzed, to show that they actually do not support the statement made (the actual citations of these cases are omitted, because they appear in the majority opinion) :

Dillon v. Wallace (Cal.1957) : The lack of inspection for more than two hours was of great importance.

Markman v. Fred P. Bell Stores Co. (Pa.1926): The dangerous condition was apparently caused by acts of the employees, not third persons.

Rankin v. S. S. Kresge Co. (W.Va. 1945) : The defendant failed to have the janitor clean up after the presence of from 400 to 450 school children, who had bought hot dogs and ice cream. As a result, until the janitor returned from lunch, the store was in a rather hectic condition. (This case is probably the only one cited by the majority which in any sense supports the statement made by them, and I feel that it is obviously distinguishable.)

In Zizi v. Gabriele D’Annunzio Lodge No. 22, etc. (N.J.1951), the question of time for constructive notice was all-important.

Randolph v. Great Atlantic & Pacific Tea Co. (Pa. 1932) was again a situation created by the employer through acts of an employee.

Barakos v. Sponduris (N.M.1958) has already been discussed and has no bearing.

In Hubbard v. Montgomery Ward & Co. (Minn.1946), the court reversed for failure to give a requested instruction, but, in the opinion, stated “that defendant’s negligence in this case must be predicated upon notice of the dangerous substances allowed to accumulate on its floor. It is true that, absent any evidence from which such notice could be found, plaintiff would have no case.”

My reason in discussing these cases is to make it obvious that they do not support the statement made by the majority, and in not one of them is it said that plaintiff’s burden of proof is reduced, as claimed in the opinion. As I stated, this, to me, is the most glaring vice of the opinion, that the court is today eliminating as a part of the plaintiff’s burden of proof the requirement that the plaintiff must show actual or constructive knowledge on the part of the defendant. Although the opinion voices what might be termed lip-service to the continuation of the rule that res ipsa loquitur does not apply, the sum total effect of the opinion is to apply the doctrine. The effect of the opinion is that, if the plaintiff can show the possible presence of negligence on the part of the defendant, that then the plaintiff need-proceed no further and the burden will shift to the defendant to prove that it could have had no knowledge, constructive or otherwise, of the condition causing the injury. The majority say, in effect, that, in slip-and-fall cases, negligence only is sufficient without any showing of proximate cause. To me, this is not and cannot be the law. The majority, by this decision, reached a result contrary to the law of New Mexico, which has been followed since De Baca v. Kahn in 1945. The consequence of today’s opinion is to whittle away at a rule long established in this jurisdiction. This of itself might not be so important, if a change of law were necessary or required. However, the mere fact that the unfortunate plaintiff in this ■case may have suffered severe injuries does not warrant making what I consider bad law.

Although there are literally hundreds of decisions throughout the United States dealing with slip-and-fall cases, many of which are concerned with debris on stairways, I do not feel it is proper to unduly •extend this dissent by attempting to cite all •of them. Nevertheless, I do desire to call attention to the following decisions, all of which are closely in point and support my position, and most of which have facts which are nearly identical with those in the instant case; with the comment, however, that in some instances the item allegedly slipped upon was something different than a piece of gum. These cases, together with the substance creating the condition in -parentheses, are as follows:

Montgomery Ward & Co. v. Hansen, supra (gum);

Saari v. S. S. Kresge Company, supra (gum);

Brown v. S. H. Kress Co., 1941, 66 Ga.App. 242 , 17 S.E.2d 758 (banana peel);

Relahan v. F. W. Woolworth Co., 1937, 145 Kan. 884 , 67 P.2d 538 (paper and debris);

Cartoof v. F. W. Woolworth Co., 1928, 262 Mass. 367 , 160 N.E. 109 (sticky substance);

Whitehead v. Erle P. Halliburton, Inc., 1942, 190 Okl. 120 , 121 P.2d 581 (waste paper);

Stowe v. S. H. Kress & Co. ( 5 C.C.A. 1947 ), 164 F.2d 593 (banana peel);

Sellew v. Tuttle’s Millinery, Inc., 1946, 319 Mass. 368 , 66 N.E.2d 26 (debris).

See, also, Annotation 61 A.L.R.2d 174 .

The above cases and the two immediately following, in my judgment, state the law as it is and has been for many years, and should be followed in the present instance.

The majority cited F. W. Woolworth Co. v. Goldston (Tex.Civ.App.1941), 155 S.W. 2d 830 , and attempted to distinguish the same. Nevertheless, I am respectfully of the opinion that the case cannot be distinguished and is very close factually to the instant case. The Texas court stated:

“ * * * Mrs. Goldston was not injured because of the failure of appellant to sweep, clean or inspect its floor. Her injury resulted from the slipping of her foot when she stepped upon the banana peel and the presence of the banana peel, not the failure to sweep, clean or inspect the floor, was the proximate cause of her injury. ‡

This statement fits the present case like a glove, and, to me, is legally unanswerable.

The majority has failed to mention Parks v. Montgomery Ward & Co. ( 10 C.C.A. 1952 ), 198 F.2d 772 , which, in an opinion by Judge Bratton, stated:

“There was no showing at to how long the condition had existed, whether defendant had actual knowledge of its existence, or whether the floor had been mopped from time to time during the morning. * * * In short, plaintiff failed to establish actionable negligence on the part of defendant.”

By failing to follow the principles enunciated by practically all of the reported cases, today’s opinion, in effect, applies the res ipsa loquitur doctrine and will certainly tend to make a store proprietor an insurer. Although the majority say that a storekeeper need not “follow each customer about his store, dustpan in hand,” the effect of today’s decision is that, in order to protect himself from having the case submitted to a jury, he will, from a practical standpoint, have to show that he has preceded each customer with broom, scraper and dustpan in hand, so that there will be nothing in the path of the customer which might cause a fall; and, even then, under today’s decision, the trial courts may be reluctant to take the case from a jury.

In conclusion, I also differ with the majority, regardless of their disposition of the main points on appeal, in remanding the case with direction to reinstate the verdict and enter judgment for the plaintiffs. This court is substituting its judgment for that of the trial judge who heard the case and who, for whatever cause, determined that the verdict should be set aside. The court holds that there is sufficient evidence to support the jury’s verdict. I, of course, disagree. But, even so, I doubt the propriety of the court’s making the order which it does, in the face of the trial judge’s action.

For all of the above reasons, I respectfully dissent.