No. 12329
I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN
1973
IDA DEMAREE,
P l a i n t i f f and Appellant,
S F W Y STORES, I N C . ,
AE A
A Maryland Corporation,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable C. B. Sande, Judge p r e s i d i n g .
Counsel of Record :
For Appellant :
S a n d a l l , Moses and Cavan, B i l l i n g s , Montana
John J. Cavan argued, B i l l i n g s , Montana
For Respondent :
Moulton, Bellingham, Longo and Mather, B i l l i n g s ,
Montana
B. E. Longo argued, B i l l i n g s , Montana
Submitted : February 28, 1973
Decided :APR 2-1
m
M r . J u s t i c e Gene B e Daly delivered t h e Opinion of the Court.
This i s a personal i n j u r y a c t i o n t r i e d t o a jury i n the
d i s t r i c t court of Yellowstone County. Judgment was entered on
a jury v e r d i c t i n favor of defendant Safeway Stores, Incorporated,
From t h e f i n a l judgment and from the c o u r t ' s denial of h e r motion
f o r a new t r f a l , p l a i n t i f f brings t h i s appeal.
On May 5 , 1966, a r t approximately 4 : 0 0 p.m., plaintiff
Ida Demaree entered defendant Safeway s t o r e premises located a t
2200 Grand Avenue, B i l l i n g s , Montana, f o r the purpose of grocery
shopping. P l a i n t i f f a l l e g e s t h a t while i n the s t o r e she slipped
and f e l l , i n j u r i n g h e r s e l f . P l a i r i t i f f introduced evidence t h a t
t h e i n j u r i e s required h o s p i t a l i z a t i o n and caused pain and d i s a b i l -
i t y and she had undergone an operation i n connectian with those
i n j u r i e s i n San Diego, C a l i f o r n i a , i n 1971. It w a s a l s o shown
t h a t p l a i n t i f f had been involved i n two subsequent automobile
accidents i n 1966 and 1969,
It i s undisputed t h a t t h e r e was water o r moisture i n some
amount on t h e f l o o r of the Safeway s t o r e i n t h e area p l a i n t i f f
a l l e g e s she f e l l , although there were no eyewitnesses t o the f a l l .
The testimony i s i n ctmflict concerning t h e o r i g i n of t h e moisture
on t h e f l o o r , but t h e r e was no d i r e c t evidence on t h i s point and
t h e exact cause was unknown.
Plaintiff testified: That a s she walked down the a i s l e
i n f r o n t of the meat counter, pushing a grocery basket, she noticed
i n the a i s l e a c a r t loaded with boxes t h a t resembled frozen chicken
boxes; t h a t a s she approached a boy moved the c a r t and she slipped
and f e l l i n the approximate v i c i n i t y of t h e c a r t ' s former p o s i t i o n ;
t h a t t h e back of her d r e s s and her hand got wet when she f e l l ; and,
t h a t she saw a puddle of water on the f l o o r but could n o t remember
i t s size.
M r . LeRoy Swartz, a meat c u t t e r employed by Safeway, was
behind t h e meat counter approximately f i f t e e n f e e t away but did
not hear o r see the f a l l . H testified:
e H e f i r s t noticed p l a i n t i f f
standing and leaning on t h e meat counter holding h e r ankle o r
f o o t ; t h a t p l a i n t i f f informed him t h e r e was some water on the
f l o o r and she had slipped and twisted her leg; t h a t he came
from behind the counter t o help p l a i n t i f f and t o clean up t h e
water but when he reached the area a t t h e f r o n t of t h e counter
she was gone; t h a t t h e r e was another customer i n the immediate
area who made no i n d i c a t i o n t h a t anything unusual had happened;
and, t h a t he then wiped up the water. H e described i t a s being
c l e a r water, sized between s i x by f i f t e e n inches and a foot by
a f o o t and a h a l f , not spreading, and containing a dry t i r e t r a c k
running through i t , but with no other noticeable marks resembling
a skid. He a l s o t e s t i f i e d t h a t occasionally s p i l l a g e s occurred
a s a r e s u l t of broken merchandise o r w e t produce l e f t standing
i n shopping baskets by customers.
After she slipped and f e l l , p l a i n t i f f t e s t i f i e d she stood
up f e e l i n g hazy and h e r l e g h u r t ; t h a t she heard someone behind t h e
meat counter say h here i s water on the f l o o r , I b e t t e r g e t t h e
mop and wipe i t up." Then, "some g e n t l e m n came out from a l i t t l e
o f f i c e place and helped m i n and set m i n a chair." She i d e n t i f i e d
e e
t h i s person a s Francis Coleman, the s t o r e manager, who she s a i d
asked her t o write her name and address on a pad and then helped
h e r t o h e r c a r , which she drove home, She was l a t e r taken t o the
h o s p i t a l emergency room by her husband.
Store manager Francis Coleman t e s t i f i e d : That he was i n
h i s o f f i c e working and p l a i n t i f f came i n by h e r s e l f and t o l d him
she had f a l l e n and h u r t h e r s e l f ; t h a t he excused himself, went t o
check t h e f l o o r i n f r o n t of the meat counter and found t h a t the
water had been wiped up; t h a t he had p l a i n t i f f f i l l out an a c c i -
dent r e p o r t and asked i f she wanted a s s i s t a n c e i n g e t t i n g t o her
car. She declined a s s i s t a n c e and went t o her c a r unaided. Coleman
further testified: That immediately a f t e r p l a i n t i f f ' s departure
he talked t o James Haney, the produce manager, and together they
inspected a l l the cartons which had been wheeled through t h a t area
and found them a l l t o be dry and burnable; t h a t any wet cartons
were left in the garbage collection area rather than taken across
in front of the meat counter to the incinerator, located on the
other side of the store; that all store employees were admonished
to keep a watch for any foreign matter onc the floors and, as
manager, he walked around the store approximately forty or fifty
times a day making inspections; that he had been in the meat counter
vicinity fifteen minutes to one-half hour before plaintiff complained
of falling and saw no water on the floor. He stated that no frozen
chicken boxes were ever taken from behind the meat counter and into
the aisle. No accident report was produced at trial by defendant.
Plaintiff presents eight issues for review on appeal,
all of which are related to jury instructions. The first issue
concerns the trial court's giving defendant's offered instruction
No. 2. The remaining seven issues concern the trial court's denial
of plaintiff's offered instructions Nos. 6, 7, 8, 9, 10, 11 and 1 .
4
~efendant's offered instruction No. 2, given as court's
Instruction No. 6 and taken from Montana Jury Instruction Guide,
Instruction No. 120.04, reads:
"One who enters or goes upon the premises of
another as a business visitor, at the express or
implied invitation of the owner, and in connection
with the business of the owner, is called in law
an invitee,
he invitation to enter extends not only to all
parts of the premises which the invitee or business
visitor is expressly invited to use, but also to
all parts of the premises where the invitee under the
circumstances and conditions of his invitation should
reasonably be expected to go.
"The owner of a place of business who has extended
an invitation, express or implied, owes to all in-
vitees who come upon the premises the legal duty to
exercise ordinary care under the circumstances to
keep the premises in a condition reasonably safe for
use by the invitee in every reasonable pursuit of any
purpose included within the invitation.
"If there is danger attending the invitee's use of
the premises and such danger arises from conditions
not readily apparent to the senses of the ordinary
person, and if the owner has actual knowledge of
such conditions, or if such conditions would have
been known to an owner in the exercise of ordinary
care under the circumstances, the law then impoSes
upon the owner the duty to give the invitee reason-
able warning of such danger.
"But the responsibility of the owner of the
premises is not absolute; it is not that of
an insurer. The owner is not charged with
knowledge of defects which reasonable inspec-
tion would not disclose; and the owner is entitled
to assume that the invitee will see and observe that
which would be obvious through reasonably expected
use of an ordinary person's senses. There is no
duty to give the invitee notice of an obvious danger.
11
However, in the absence of appearances that caution
him, or would caution a reasonably prudent person
under like circumstances, the invitee has a right
to assume, and to act upon the assumption that the
premises he is invited to enter are reasonably safe
for the purpose for which the invitation is extended."
We find court's Instruction No. 6 to be a correct statement
of the law as it relates to the duty owed by defendant to its in-
vitees. Callahan v. Buttrey, 186 F,Supp. 715; Kerns v. F W Wool-
..
worth Co,, 138 Mont, 249, 356 P,2d 127; Regedahl v. Safeway Stores,
Inc., 149 Mont. 229, 425 P 2d 335.
.
Additionally, when Instruction No. 6 is read with plain-
tiff's offered instruction No. 12, which was given as court's
Instruction No. 7, the law is more than fairly stated on behalf
of plaintiff. Court's Instruction No. 7 reads:
"When a place of business such as a supermarket
here involved, is open for business, one who enters
it for the purpose of shopping does so at the im-
plied, if not the express, invitation of the operator
of the establishment, and is called the 'invitee',
Upon the operator of such business establishment,
the law places the duty of exercising ordinary care
so as not unnecessarily to expose the invitee to
danger or accident, and, to that end, to keep in a
reasonably safe condition the general business premises
made available for the invitee s use, and which the
latter is expressly or impliedly invited to use. You
are further instructed that the Plaintiff, while in the
stare here involved, was an invitee of the Defendant,
as above defined, and if you find from the preponder-
ance of the evidence that while in said store the
Plaintiff exercised reasonable care for her own safety,
and if you further find from a preponderance of the
evidence that the Defendant failed to exercise reason-
sustained by Plaintiff, then you must find yaur verdict
in favor of the Plaintiff and against the Defendant."
(Emphasis supplied).
The emphasized reference to the meat counter is a gratuity to
which plaintiff was not entitled. It attempts to create a special
standard in that area while commenting on the evidence.
The seven instructions offered by plaintiff and refused
by the court in all instances are to a degree repetitive and
attempt to establish a higher degree of care and a presumption of
active negligence and/ar strict liability, or a duty similar to the
doctrine of res ipsa laquitur on the operators of supermarkets,
as opposed to the duty of care for all other commercial establish-
ments and their licensees as set forth above.
Plaintiff's proposed instruction No, 6 concerned a failure
of defendant to make reasonable inspection of the floor, particularly
in front of the meat counter, as constituting negligence,
In light of the cross-examination conducted at trial by
plaintiff's counsel concerning defendant's not using "broom or
sweeping charts" and failure to establish the use of such charts
as an ordinary standard of care among retail storekeepers and in
light of the evidence in this case, plaintiff's offered instruction
No, 6 was not a correct statement of the law and amounts to a
comment on the evidence, and as such cannot be permitted. Bjorndal
v, Lane, 157 Mont, 543, 487 P.2d 527.
Plaintiff's proposed instruction No. 7 stated that the
nature of the public use of defendant's property created a duty
of immediate action. plaintiff's proposed instruction No. 8
stated that knowledge by the defendant of the existence of a
hazardous condition could be proven circumstantially. Plaintiff's
proposed instructions No, 9 and No. 10 were practically identical
statements that the law imposes liability without regard to notice
or time to correct when a hazardous condition results from conduct
by defendant's agents or employees. These proposed instructians
Nos. 7,8,9 and 10 have essentially the same defects,as applied to
the factual determinations required to be made by the jury in the
instant case. They contain assumptions of factual determinations
which were reasonably in dispute under the evidence presented at
trial.
Any instruction which assumes as fact a matter legiti-
mately in controversy, as shown by the evidence, is erroneous.
Berne v. Stevens, 67 Mont, 254, 215 P. 803.
Finally, the proposed instructions were misleading as
to the standard of care imposed by law upon storekeepers toward
business invitees and as to the elements of negligence and proxi-
mate cause which must be.established in order to find liability.
In Rossberg v. Montgomery Ward & Co., 110 Mont. 154, 169, 99 P.
2d 979, this Court stated:
"From the clear evidence heretofore outlined and
well-settled law, it is clear that the plaintiff,
in order to prove negligence on the part of the
defendants, must show that the defendants placed the
oil or foreign substance on the floor, or had know-
ledge of its being there, or that it was on the floor
such a length of time that defendants should have
known of its presence. * * *
"* * * Likewise the plaintiff failed to show that
the matter, whether it was oil or gasoline, was
placed there by the defendants, or that they had any
notice whatever of its presence prior to the time she
stepped on it, or that it had been on the floor for
such a length of time that defendants should have
known of its presence, This lack of proof is fatal
to her case, The defendants offered positive testi-
mony that an inspection of the floor is made as a
matter of course during themrning of each day, and
that a constant lookout is kept throughout the day
by all clerks in order that the floor may be kept free
of foreign substance. This positive testimony stands
uncontradicted.
"In the case of Montague v. Hanson, 38 Mont. 376, 99
Pac. 1063. 1067. this court stated: he owner is not
an insure; of the safety of his customers. He is
bound only to use reasonable care to keep his premises
in such a condition that those invited there by him
may not be unnecessarily exposed to danger. ' It is
clear from the evidence that plaintiff failed to show
that defendants did not exercise all required precau-
tion. 1 I
See also: Cassady v. City of Billings, 135 Mont. 390, 340 P.2d
509; Matson v. Northern Hotel Inc., 152 Mont. 103, 446 P.2d 913;
plaintiff's proposed instruction No. 11 states that the
two subsequent intervening accidents should not be considered in
awarding damages, and secondly, that if the plaintiff suffered
injuries in a fall on defendant's premises, she is entitled, re-
gardless of subsequent intervening injuries, to recover damages
not to exceed $100,000. The reference to intervening or subsequent
injuries contained in this instruction was confusing and invades
the province of the jury as to an issue of fact legitimately in
contention. The second premise in the instruction appears to
be an imposition of absolute liability. The reference to $100,000
limitation of damages by reason of pleadings was covered in an-
other instruction given by the court.
Plaintiff's proposed instruction No. 14, similar to the
court's Instruction No. 8, states that the use of weak evidence
or lack of denial can give rise to an inference against a party.
We have examined the entire record and the fifteen
instructions actually given at trial and we find no prejudicial
error, The jury was well and fairly instructed. Some of plain-
tiff's offered instructions were misleading or erroneous state-
ments of the law in this case. Others were merely repetitive of
instructions given by the trial court. The trial court, in jury
instructions, is required to give the relevant law favoring both
sides. It is not required to give repetitive jury instructions,
Where two analogous instructions are offered the court may, in
the exercise of its sound discretion, give the instruction which
makes the fairest and best statement of the law to the average
juryman.
The judgment of the district court is affirmed.
Chief Justice
/ ~skociateJustices. I
G u s tice Frank I. Haswell deeming himself disqualified
did not take part in this Opinion,