# Sears, Roebuck & Co. v. Johnson > Court of Appeals for the Tenth Circuit · July 2, 1937 · 91 F.2d 332 URL: https://www.frixlaw.com/law-library/cases/9640330 ## Case - **Full name:** Sears, Roebuck & Co. v. Johnson - **Court:** Court of Appeals for the Tenth Circuit - **Decided:** July 2, 1937 - **Citations:** 91 F.2d 332; 1937 U.S. App. LEXIS 4221 - **Precedential status:** Published - **Opinion:** Dissent by Bratton - **Judges:** Phillips, Bratton, Williams - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9640330 ## Opinion text BRATTON, Circuit Judge (dissenting). A merchant is not an insurer of the safety of customers in his store, but he is required to exercise ordinary care to provide a reasonably safe place for them. A customer cannot recover damages for injuries suffered by slipping on a leaf of spinach, a pea pod, a broken bottle of hand lotion, an oily place on the floor, a wet place on the floor, or other comparable clement of fact, without *340 showing that the owner knew of the condition, or that it had existed for a sufficient length of time that in the exercise of ordinary care it was discoverable and remediable. F. W. Woolworth Co. v. Williams, 59 App.D.C. 347 , 41 F.(2d) 970 ; Sears, Roebuck & Co. v. Peterson (C.C.A.) 76 F.(2d) 243 ; Graham v. F. W. Woolworth Co. (Tex.Civ.App.) 277 S.W. 223 ; Great Atlantic & Pacific Tea Co. v. Logan (Tex.Civ.App.) 33 S.W.(2d) 470 ; Varner v. Kroger Grocery & Baking Co. (Mo.App.) 75 S.W.(2d) 585 ; Bell v. Great Atlantic & Pacific Tea Co., 288 Pa. 160 , 135 A. 607 ; Bader v. Great Atlantic & Pacific Tea Co., 112 N.J.Law, 241 , 169 A. 687 ; Coyne v. Mutual Grocery Co., 116 N.J.Law, 36 , 181 A. 314 ; S. S. Kresge Co. v. Fader, 116 Ohio St. 718 , 158 N.E. 174 , 58 A.L.R. 132 ; Miller v. Gimbel Bros., Inc., 262 N.Y. 107 , 186 N.E. 410 . Defendant knew that on rainy days customers brought water into the store at the entrance. It kept a porter there nearly all of the time on such days to mop up the water. It had been raining throughout most of the morning preceding the accident in question. Due to that fact, it was dark inside the door 'and adjacent to the stairs. Water had accumulated there and the floor was slippery. Defendant was charged with knowledge of such conditions and they had existed for a sufficient length of time that the exercise of reasonable care required correction. The duty to remedy a condition of that kind is an active and continuing one to be fulfilled through the exercise of reasonable care. Sears, Roebuck & Co. v. Peterson, supra. For these reasons, this case is distinguishable from those in which plaintiff merely showed the existence of a dangerous condition, but failed, to prove either that defendant had actual knowledge of its existence or that it had existed long enough reasonably to require discovery and corrective measures. It is said by .the,majority that there was no evidence on the part of plaintiff that her shoes were not wet; that information respecting such matter was peculiarly within her knowledge; and that it is just as reasonable to infer that she slipped because of wet shoes as on account of a damp floor. A witness engaged in the transfer business testified that he was in the store that morning; that it was raining; that he observed the floor just inside the entrance; that it was wet and that he slipped on it right at the top of the stairway; that it was a little bit dark in there; that he went to the hasement to make -a purchase; that he talked with the husband of plaintiff in the vestibule ; that he intended to go home for lunch; and that on looking at his tvatch and seeing that it was 11:30 o’clock he stated he could not go unless it quit raining. Plaintiff testified that she and her husband were in the store about 9:30 or 10 o’clock; that they entered and departed through the east door; that they returned near the noon hour, but before noon; that there being no parking place, she went to the basement alone, made a purchase and went upstairs; that she saw her husband outside and started back to the basement to ascertain the whereabouts of the clerk who had expressed a willingness to bring her package upstairs; and that-when she had taken two or three steps and just as she reached the top of the stairs, she slipped and fell to the bottom of the stairs. That testimony and the inferences which may reasonably be drawn from it, constitute substantial support for the conclusion. that it was slightly dark just inside the entrance and near the top of the stairway; that the floor was wet at that place; that plaintiff was either standing in the wet place or in turning and starting back to the basement, she walked through it; and that as a result she slipped, fell, and was injured. In passing upon the motion for directed verdict, it was the duty of the court to view the evidence in the light most favorable to plaintiff. Since there was substantial evidence tending to establish actionable negligence, all countervailing evidence should have been disregarded. A. B. Small Co. v. Lamborn & Co., 267 U.S. 248 , 45 S.Ct. 300 , 69 L.Ed. 597 ; Chambers v. Skelly Oil Co. (C.C.A.) 87 F.(2d) 853 . The court was right in denying the motion and in submitting the case to the jury. The jury resolved the issues in favor of plaintiff, and the judgment should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9640330. Public record. Not legal advice.