Lopp v. First National Bank , 151 Or. 634 ( 1935 )

This is a personal injury action. The plaintiff seeks to recover damages for injuries sustained as a result of slipping and falling on the marble floor of the defendant's bank at the corner of Sixth and Morrison streets in the city of Portland. Plaintiff alleges in her complaint that defendant was negligent in the following particulars:

"(a) That defendant maintained said lobby in a dangerous and slippery condition by allowing quantities of water and a muddypasty substance to accumulate thereon, which resulted in said floor being in a hazardous, slick and slippery condition;

"(b) That defendant carelessly and negligently failed to warn persons, and in particular the plaintiff, in making use of said lobby, of the unusual, hazardous and slippery condition thereof;

"(c) That said defendant, at said time and place, carelessly and negligently failed to remove the water from said floor by mopping or by any other means, and as a result allowed the same to remain in a hazardous, slick and slippery condition;

"(d) That defendant carelessly and negligently failed and neglected to cover said floor with some form of matting to prevent the same from becoming slick and slippery during the rainy season of the year."

The defendant denied the charge of negligence and alleged, as an affirmative defense, that plaintiff was guilty of contributory negligence in that she walked over the floor in a rapid and careless manner without paying any attention to the condition of the floor. The affirmative matter was denied in the reply.

At the conclusion of the plaintiff's case in chief, the court allowed the motion of the defendant for a judgment of involuntary nonsuit. Plaintiff appeals.

The vital questions presented on this appeal are: (1) Is there any evidence tending to show negligence as alleged on the part of the defendant? (2) Can it be said, as a matter of law, that plaintiff was guilty of contributory negligence?

Plaintiff, a woman 37 years of age, went into the defendant's bank for the purpose of transacting business. She had been a customer of the bank for several years and was therefore familiar with conditions. On the day in question there had been a "downpour of rain" but immediately preceding her entry into the bank the storm had somewhat subsided. Nevertheless there was, as she says, still a "drizzling rain". The plaintiff thus describes the condition of the floor of the bank lobby and the manner in which she was injured:

"Q. And you entered at this swinging door? A. Yes.

"Q. And about how many steps did you take, would you say, before you had your accident? A. Well, a few steps; two or three; just a few steps.

"Q. And then what happened? A. There were people going to and fro, and there was one man in particular that I was passing, and I angled a little bit to the right, and just about that time I slipped on something slippery and my feet went completely from under me, and I fell with my weight on my right arm and my right hip, and I put my right arm back to keep myself from falling flat.

* * * * * "Q. Just tell the jury about what occurred. A. Well, before I got up I looked at my hand and I noticed that there was a pasty, muddy water all over my hands, and my stockings were wet and the dress, from the hem of my skirt to my hip was wet. * * * * * "Q. Now you speak about this pasty substance; what was the extent of that? A. As I looked about, I saw there was quite large quantities of it on the floor."

She further testified that Mr. Steenrod, manager of the bank, assisted her in getting up after her fall and that he said, "I am so sorry you took an awful fall. I told them to clean that up and they haven't done it."

It is elementary that in determining the question whether the above evidence established a prima facie case of negligence such evidence must be viewed in the light most favorable to the plaintiff. It is entitled to every reasonable intendment. If reasonable-minded persons might differ in their conclusions as to whether the evidence, if accepted as true, showed a breach of duty on the part of the defendant bank, the issue of negligence would be for the determination of the jury. If, however, the only reasonable deduction to be drawn from the evidence is that the bank had exercised reasonable dilligence in keeping the floor in a safe condition there would be no cause for submission to the jury. The bank was not an insurer. It did, however, owe plaintiff the duty to maintain the floor in a reasonably safe condition and she, in the absence of notice to the contrary, had the right to assume that it was in such condition.

To establish a prima facie case of negligence it was incumbent upon the plaintiff to introduce evidence tending to show: (1) That the bank, through failure to exercise reasonable care, had allowed the floor to become in a dangerous condition as alleged in the complaint; (2) that the bank knew, or ought to have known, of the existence of such dangerous condition; (3) that the bank had knowledge of such condition a sufficient length of time prior to the injury to afford a reasonable opportunity to remedy the same. The failure to show any one of these three essential elements would be fatal to the plaintiff's case.

There are no structural defects in the floor involved. It is not charged that the bank lobby was improperly lighted. Neither are we concerned with cases wherein the slippery condition of the floor was caused by improper oiling or dressing (McNeil v. Brown Co., 22 F.2d 675; Robinson v. Woolworth Co., 80 Mont. 431 (261 P. 253). Likewise cases where water on the floor came from a defective toilet (Scott v. Kline's, Inc., (Mo.App.),284 S.W. 831) or drinking fountain (Dudley v. Abraham, 122 A.D. 480 (107 N.Y.S. 97)) are not in point. The instant action is based on the failure of the bank to remove the "watery pasty substance" tracked in, without doubt, by customers who had recently been in a rainstorm. It is common knowledge that a marble floor might become slippery and dangerous through muddy water from the shoes of those coming into the bank to transact business. A dripping umbrella might also add to the danger of the situation. What must a bank do under such circumstances? The answer is that it must exercise reasonable care to keep the floor in a safe condition. It would be absurd to expect the employees of the bank to follow every customer with a mop to see to it that every drop of water or foreign substance is immediately wiped up. To hold the bank to such a high degree of care would impose upon it the liability of an insurer. On the other hand, it would hardly be reasonable to say that the bank had performed its full duty to invitees if it knowingly permitted a dangerous condition to continue without exercising reasonable diligence to remedy the same.

It will be remembered that the burden of establishing breach of duty by the bank rests on the plaintiff. Merely to show that there was muddy water on the floor at the time the plaintiff fell is not sufficient. Negligence cannot be inferred from the mere happening of the accident. Plaintiff must go further and introduce evidence tending to show that the alleged dangerous condition of the floor had existed for such a length of time that, had defendant exercised reasonable care, the "watery pasty substance" would have been removed.

As we view the evidence it is not believed that plaintiff has shown negligence. There is no evidence as to the length of time the floor was permitted to remain in a slippery condition, although knowledge of such condition prior to injury may be inferred from the statement of the manager of the bank that "I told them to clean that up and they haven't done it". It may be that at the time this statement was made the janitor was in the act of getting a broom or mop. Who knows? While reasonable inferences may be drawn from facts proved, the rule does not permit indulgence in mere speculation or conjecture. The most that the evidence shows is the existence of a transient condition caused not by the act of the defendant but by the wet shoes or umbrellas of the patrons of the bank.

Courts generally have made a distinction between cases where some foreign substance like a banana peel was dropped on the floor by an invitee, thereby causing injury, and those wherein the slippery condition of the floor was the natural result of its use during stormy weather: Kresge Co. v. Fader, 116 Ohio St. 718 (158 N.E. 174, 58 A.L.R. 132); Williams v. Kansas CityTerminal Ry. Co., 288 Mo. 11 (231 S.W. 954); Bodine v. GoerkeCo., 102 N.J. Law 642 (133 A. 295). Counsel for plaintiff well appreciated the different line of cases for, after the trial court had declared its intention of granting the motion for nonsuit, the complaint, over the objection of the defendant, was amended by interlineation, by inserting the words, "and a muddy pasty substance", as italicized in the above specifications of negligence.

We see nothing in Lyons v. Lich, 145 Or. 606 (28 P.2d 872), at variance with the conclusions herein reached. That case, as all cases, must be read in the light of the fact situation before the court for consideration. We may also add that the specifications of negligence in the Lich case are materially different from those involved herein.

Having found that the plaintiff has failed to show any negligence of the defendant bank, the trial court was right in granting the motion for nonsuit.

It is unnecessary to consider the question of contributory negligence.

The judgment of nonsuit, in my opinion, should be affirmed.

RAND, J., concurs in this dissenting opinion.