Opinion
No. 70-629 (Supreme Court No. 24148)
Decided February 9, 1971. Rehearing denied March 2, 1971. Certiorari granted April 26, 1971.
Slip and fall case. From granting of defendant's motion for directed verdict, plaintiff appealed.
Affirmed
1. NEGLIGENCE — Slip and Fall — Pizza on Floor — Constructive Notice — Period of Time — Defendant — Reasonable Care — Should Have Discovered. Where plaintiff alleged that she slipped and fell on piece of pizza on floor in front of pizza counter, in order for defendant to have constructive notice of the pizza on the floor, there must be some evidence that it was there for some period of time under such circumstances that defendant in the exercise of reasonable care, could or should have discovered the dangerous condition.
2. Slip and Fall — Actual or Constructive Knowledge — By Defendant — Danger Spot — Proven — Liability Attaches. In slip and fall case, nothing is better settled in the law of negligence than that actual or constructive knowledge on the part of defendant of the defect or danger spot which caused the fall must be proven before liability attaches.
Error to the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Samuel Berman, Walter O. Cass, for plaintiff in error.
Wood, Ris Hames, Thomas T. Crumpacker, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is a slip and fall case. The plaintiff, Edna Jasko, sued the defendant, F. W. Woolworth Co., to recover damages for personal injuries resulting from a fall in defendant's downtown Denver store.
After the plaintiff presented her case, the trial court granted the defendant's motion for directed verdict and dismissed the case, thereby taking the case from the jury. In so doing, the trial court found that there was no evidence of any negligence on the part of the defendant and that there was no evidence showing that the defendant had actual or constructive notice of the alleged dangerous condition. We agree with the ruling of the court.
The record shows that plaintiff entered defendant's store between 11:00 a.m. and 12:00 noon on January 6, 1967, and that she slipped and fell as she was walking down the aisle past the pizza counter. After the fall, plaintiff found something on the heel of her shoe which she "imagined" was pizza because it was "red and yellow". Plaintiff did not observe any debris on the floor before or after the fall. She further testified that there were no customers in the immediate area at the time. Immediately after the fall, two of the sales personnel came from behind the counter to assist the plaintiff.
The only other testimony on the issue of liability was from defendant's assistant store manager, Mr. Manion, who was called by the plaintiff, as an adverse witness, for cross-examination. From his testimony we learn that pizza was sold and served on paper napkins over the counter to customers who could eat the pizza while standing in the aisle, as they moved about the store, or after they left the store. Other foods were dispensed from adjoining counters to carry out or for consumption in the store.
Mr. Manion testified that the floors were scrubbed each morning before the store was opened and that the porter and his cleaning crew were on duty constantly during the day keeping the floors clean. In addition, Mr. Manion and other supervisory personnel were constantly moving about the store, particularly during the period from 11:00 a.m. to 2:00 p.m., for security reasons and to police the aisles for any debris that might be on the floor. Mr. Manion did not witness plaintiff's accident. The defendant's porter, who had direct responsibility for cleaning the floor, was subpoenaed by the plaintiff and was present in the court room but was not called to testify.
Plaintiff, by inference, if not directly, concedes that a prima facie case was not proven under existing Colorado law. She urges the adoption of a new rule for Colorado; i.e., that even where no actual or constructive notice is shown, that nevertheless, the nature and operation of the business of dispensing pizza is sufficient to charge the defendant with constructive notice of hazardous conditions associated with such business. This is not the law in Colorado.
There was no testimony that there was any pizza on the floor either before or after the accident. Assuming, arguendo, that there was pizza on the floor, there was no evidence that any of defendant's employees caused it to be there. If a customer had dropped any pizza, or anything else, there was no evidence that defendant had actual knowledge of that fact nor was there any evidence to support a finding of constructive notice.
[1] To have constructive notice, there must be some evidence that the pizza was on the floor for some period of time under such circumstances that defendant, in the exercise of reasonable care, could or should have discovered the dangerous condition. There are numerous cases in Colorado which are consistent in so holding. Adkins v. Denver Dry Goods Co., 167 Colo. 545, 448 P.2d 957; Miller v. Crown Mart, Inc., 162 Colo. 281, 425 P.2d 690; Boyd v. Hubbell, 155 Colo. 110, 392 P.2d 664; F. W. Woolworth Co. v. Peet, 132 Colo. 11, 284 P.2d 659; Denver Dry Goods Co. v. Pender, 128 Colo. 281, 262 P.2d 257.
[2] In Denver Dry Goods Co. v. Pender, supra, the customer slipped and fell on a damp spot on the floor. The Supreme Court's holding, in reversing a jury verdict for Pender, is particularly applicable to the case at hand:
"* * * and the record is wholly void of any proof that the damp spot on the floor was placed there by defendant, or that it was there a sufficient length of time for defendant, in the exercise of ordinary care, to have known about it, or warn plaintiff of its presence if it had been noticeably hazardous. No one saw it prior to the accident; no one knows how it happened to be there; * * *. Nothing is better settled in the law of negligence than that actual or constructive knowledge on the part of defendant of the defect or danger spot must be proven before liability attaches."
The judgment of the trial court is affirmed.
JUDGE COYTE and JUDGE DWYER concur.