Opinion
8-21-1959
Theorilda Marie BRIDGMAN, Pliaintiff and Appellant, v. SAFEWAY STORES, INC., Defendant and Respondent. * Civ. 18411.
George Olshausen, San Francisco, for appellant. Ackerman, Johnston, Johnston & Mathews, Willard S. Johnston, San Francisco, for respondent.
Theorilda Marie BRIDGMAN, Pliaintiff and Appellant,
v.
SAFEWAY STORES, INC., Defendant and Respondent. *
George Olshausen, San Francisco, for appellant.
Ackerman, Johnston, Johnston & Mathews, Willard S. Johnston, San Francisco, for respondent.
TOBRINER, Justice.
Appellant, a customer in a self-service store, seeks reversal of judgment after verdict for defendant in her suit for negligence against the store owner, upon the ground that the court instructed the jury that the store owner would not be liable for a dangerous condition caused by a customer unless it knew or should have known of such condition. Appellant contends the instruction should have charged that the store was conclusively presumed to have knowledge of such a dangerous condition. Although, as we shall point out, additional instructions might have been proper under certain factual situations, neigher such a factual situation nor a request for such instructions concurred here. Accordingly, we believe the questioned instructions sufficed for this given case.
Appellant urges a second ground for reversal in the giving of an instruction on inevitable accident. We do not find this error prejudicial.
The facts here, as in most cases, vary according to the predilection of the viewer. In summary, appellant testified as follows: At approximately 1:00 in the afternoon she entered respondent's self-service store and went over to the pumpkin bin. No other customers were around at this time. Appellant took a pumpkin from the bin, weighed it and returned it to the bin. The pumpkins, stacked on a 'fairly high' bin in a pyramid fashion, rose to her eye level; she noticed nothing loose or unstable about the display. As she was standing in front of the bin, appellant felt a sudden blow on the chest which knocked her down, and, when she arose, there were many pumpkins on the floor. As a result of this blow she was hospitalized.
In contrast to appellant's testimony, three employees in the store testified that appellant told them immediately after the accident that she had slipped and, in attempting to retain her balance, grabbed at the pumpkins which fell with her. According to the produce manager of the store, the bin upon which the pumpkins were stacked was only 29 inches high, and pumpkins were never stacked more than two high. However, one of respondent's employees admitted that the merchandise 'gets handled quite a bit' and that a series of inspections and rearrangements are required after the initial setup. A produce clerk testified that he came on duty at 12:15 on October 30, 1956, walked around the produce area, and found nothing amiss. By various questions, appellant's attorney intimated that other customers may have restacked the pumpkins too high.
As we have pointed out, appellant makes the point that the instructions erred in distinguishing between the duty of the self-service store for acts of customers and acts of employees and owners. As to the dangerous condition created by the negligent conduct of the owner or the employee, the instructions read, '[T]he law conclusively presumes that the owner had knowledge of said condition from the time of its creation.' But, according to the instructions, 'if * * * some person other than defendant or its employees so handled the pumpkins as to leave them in an unsteady and dangerous condition' the store is not liable unless the conditions were 'actually known' to its owner or employee or the conditions were 'permitted to remain for such a space of time * * * as would charge the defendant with notice of this condition and afford it an opportunity to correct it.' Appellant summarizes the court's position: 'In order to impose liability upon defendant for a dangerous condition created by some other customer, it must appear that defendant knew or should have known of the dangerous condition.'
Appellant argues the distinction between the customer-created dangerous condition and the sales force-created dangerous condition is unrealistic because in the self-service store the customer actually performs part of the function of the sales force. If management saves the cost of hiring employees by shifting to customers the work normally performed by employees, it cannot escape the liability resulting from customer work negligently performed. If management endows the customers with the role of the employee, the customer assumes the status of the employee and that relationship between customer and store emerges.
There is then '[s]o far as merchandise may be handled by a customer * * *,' according to appellant, 'a continuing duty to keep the merchandise safe for the next customer' and not an 'intermittent' duty which arises only upon the store's actual or constructive knowledge of the dangerous condition.
Whatever merit there may be to appellant's argument in a restricted situation, her sweeping application of it here would impose upon the store owner an absolute liability tantamount to that of an insurer. If the store owner is presumed to know of any dangerous condition caused by any customer, the store owner would be exposed to a liability for practically any injury in the store. It is hard to conceive of an injury to an invitee which would not be attributable to a condition caused either by a customer or an employee. If the store owner is 'presumed' to know any such dangerous condition, the burden becomes one of perfect and instantaneous inspection. Such a result proceeds far beyond the present decisions and indeed conflicts with appellant's own instructions.
Prosser summarizes the present rule in stating: 'The occupier is not an insurer of invitees * * *. There is no liability * * * for harm resulting from conditions * * * which the occupier * * * could not have discovered with reasonable care.' (Prosser on Torts [2d ed. 1955], § 18, p. 459.) The issue of the exercise of the duty of reasonable care of the store owner is expressed in Louie v. Hagstrom's Food Stores, 1947, 81 Cal.App.2d 601, 184 P.2d 708: 'It is generally a question of fact for the jury as to whether, under all the circumstances, the defective condition existed long enough so that a reasonable man exercising reasonable care would have discovered it.' 81 Cal.App.2d at page 607, 184 P.2d at page 712. In Hatfield v. Levy Brothers, 1951, 18 Cal.2d 798, 117 P.2d 841, the court in discussing the duty owed an invitee in a retail store stated: '[T]he owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises.' 18 Cal.2d at page 806, 117 P.2d at page 845.
Appellant's contention not only proceeds beyond these cases but is not in accord with appellant's own instruction, which was given, reading: '[T]he responsibility of one having control of the premises is not absolute. It is not that of an insurer. * * *' In the face of this conflict appellant's contention fails even under the rule of Butigan v. Yellow Cab Co., 1958, 49 Cal.2d 652, 320 P.2d 500, holding that a party is in no position to complain of error since 'at her request, many other instructions were given which contain the same defect.' 49 Cal.2d at page 657, 320 P.2d at page 503. Appellant's attack upon the instruction premised upon its failure to describe an absolute liability for negligence of customers fails because appellant's own instruction, according to this theory, contains 'the same defect.'
We recognize, however, the possible merit in appellant's position in a limited situation. If the negligence of a customer in handling merchandise should inflict injury upon a succeeding customer, we do not hold that the storeowner could escape liability on the ground that it had neither actual nor constructive knowledge of such condition. If, for example, the record showed here that the pumpkins were stacked in so dangerous a manner by a customer preceding appellant's advance to the bin that her mere steps on the floor were sufficient to cause the pumpkins to fall upon her, it may have been proper that an instruction covering such a contingency be submitted.
While the following quotation from the appellate decision of the Supreme Court of New York in Robinson v. Atlantic & Pacific Tea Co., 1945, 184 Misc. 571, 54 N.Y.S.2d 42, affirmed 269 App.Div. 977, 59 N.Y.S.2d 290, emanates from a res ipsa loquitur case, it is applicable to the described scribed situation: 'by delegating to * * * customers authority to freely handle the merchandise * * * [services] theretofore rendered by the store clerks * * * the defendant thereby constituted them their agents or servants for that purpose and should be held as much responsible for their acts of carelessness and negligence * * * as in the case of an actual employee * * *.' 54 N.Y.S.2d at page 44. Consequently, in such a situation the liability of the store owner equates that which flows from negligence of an employee: the store owner is presumed to have knowledge of such a condition. The requisite proof, however, as in the situation of the employee, lies in the showing that the dangerous or defective condition is created by the 'negligent conduct' of the customer.
Neither does the record here support such negligent conduct of the customer nor was an instruction requested to cover it. The record is barren of any proof that a customer actually negligently restacked the pumpkins. Appellant herself took a pumpkin from the bin and replaced it. Probably because of this very fact appellant did not request any instruction pertaining to such a situation.
Basically, appellant's case, due to the absence of the described proof, crystallizes into a res ipsa loquitur situation. In reality, the substance of appellant's contention is that an inference of negligence should be drawn from the mere occurrence of the accident. Significantly, the cases upon which appellant relies involve res ipsa loquitur situations. Robinson v. Atlantic & Pacific Tea Co., supra, 54 N.Y.S.2d 42, affirmed 59 N.Y.S.2d 290, to which we previously alluded, pertained to a res ipsa loquitur case in which merchandise fell upon a customer while she was shopping in defendant's supermarket. Francois v. American Stores Co., 1957, 46 N.J.Super. 394, 134 A.2d 799, involved the applicability of the res doctrine to falling merchandise. Leone v. Safeway Stores, 1945, 133 N.J.L. 478, 44 A.2d 913, was a res ipsa loquitur case regarding falling merchandise in a supermarket.
Yet appellant withdrew a proposed res ipsa loquitur instruction. This contribution to alleged error in the instructions precludes complaint here. Butigan v. Yellow Cab Co., supra, 1958, 49 Cal.2d 652, 320 P.2d 500; Zuckerman v. Underwriters at Lloyd's, 42 Cal.2d 460, 267 P.2d 777; Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d 157, 195 P.2d 416. Moreover, this district court of appeal on September 23, 1958, denied appellant's motion to augment the record on appeal in order to insert this withdrawn instruction. Indeed, since appellant admitted that she herself had handled one of the pumpkins immediately prior to the accident, the res doctrine was inapplicable and the instruction as to it properly withdrawn.
We turn to appellant's second ground of error: the instruction as to unavoidable or inevitable accident. The instruction was erroneous. Butigan v. Yellow Cab Co., supra, 1958, 49 Cal.2d 652, 320 P.2d 500; Alarid v. Vanier, 1958, 50 Cal.2d 617, 327 P.2d 897. However, we do not believe that 'the probable effect of [the] instruction * * * [misled] the jury * * * so as to require a reversal * * *.' 50 Cal.2d at page 625, 327 P.2d at page 901. In the absence of a showing of any defective condition and in the face of testimony that appellant either fell herself self and pulled down the pumpkins or after handling a pumpkin restacked them improperly so that they fell upon her, we cannot conclude that the unavoidable accident instruction could have altered the final result. The nature and the overall weight of the facts differ here from those in our recent decision of Borg v. McDonnell, 172 Cal.App.2d 260, 342 P.2d 297. There 'all the circumstances, including the evidence and the other instructions given' (Alaird v. Vanier, 1958, 50 Cal.2d 617, 625, 327 P.2d 897, 901), led to the determination that the 'probable effect of [the] instruction' had been to mislead the jury. The whole showing of the record gives no such indication here.
The ultimate of appellant's case seems to condense into a res ipsa loquitur situation and her own withdrawal of that instruction indicates that the ultimate itself was insufficient for a recovery.
We affirm the judgment.
BRAY, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 2 Cal.Rptr. 146, 348 P.2d 696.