Suci v. Mirsky , 61 Mich. App. 398 ( 1975 )

61 Mich. App. 398 (1975) 232 N.W.2d 415

SUCI
v.
MIRSKY

Docket No. 20195.

Michigan Court of Appeals.

Decided May 29, 1975.

Edwin W. Jakeway, P.C., for plaintiff.

Bernard N. Portnoy, P.C., for defendants.

Before: ALLEN, P.J., and T.M. BURNS and R.M. MAHER, JJ.

Leave to appeal denied, 395 Mich ___.

R.M. MAHER, J.

The jury awarded plaintiff, Martha Suci, $5,000 for injuries received when she slipped and fell on the stairway to Heitzner's House of Gifts. At the close of plaintiff's proofs, defendants moved for a directed verdict asserting that the evidence presented by plaintiff, even when viewed in the light most favorable to plaintiff, failed to establish that any foreign substance or defective condition was present at the time of the accident or that defendants had actual or constructive knowledge of such a condition. The trial court reserved its ruling and defendants renewed their motion at the close of defendants' proofs. After the jury returned a verdict in favor of plaintiff, defendants filed a motion for judgment notwithstanding the verdict and/or new trial. Defendants' motions were denied and they appeal.

The record in this case shows that plaintiff and a friend, Verlie Wood, went to Heitzner's House of Gifts at approximately 4:30 p.m., on November 6, 1970, to purchase a gift. Entrance to the gift store, located below street level, is reached by descending an interior carpeted stairway with a handrail on the right to a landing and then descending a second stairway, also carpeted with a handrail on the right, to the store proper. Located on the wall opposite the first flight of stairs at the landing was a shadow box, 2 feet wide and 3 feet long with a mirror back. While slowly descending the first flight of stairs with her right hand on the railing and looking at the shadow box, particularly at candles and knickknacks displayed thereon, plaintiff testified that her right foot slipped on the second step from the bottom and that she fell on the landing. Plaintiff did not know what she slipped on, only that it was something slippery. Plaintiff further testified that she noticed something greasy on her right shoe a day or two after the accident but did not show it to anybody and did not know whether her shoe picked the substance up prior to her arrival at the store. The testimony of Verlie Wood, who preceded plaintiff down the stairway, is devoid of testimony regarding any foreign substance on the carpeted stairs.

Irving Mirsky, the store manager, testified that his inspection of the stairway, used by anywhere from 150 to 250 people on the day in question, following plaintiff's fall, failed to reveal any type of greasy substance. Mary Yale, a bookkeeper, testified that there was no grease on the stairway or on the bottom of plaintiff's shoes immediately after her fall. Mary Yale further testified that when she asked plaintiff if she had tripped or slipped on anything, plaintiff replied, "No, I just fell."

The stairs were vacuumed every morning before the store opened and Mary Yale made it a point to pick up anything on the stairway when she arrived in the morning and when she would leave for or return from lunch. It was not established whether Mary Yale went out to lunch on the day in question and if so, at what time.

Plaintiff claims that defendants failed to inspect and examine the stairway to determine the presence of a foreign substance and that defendants' maintenance of the shadow box before all of their descending customers encouraged those customers to look at the display and caused plaintiff to fall. With respect to the shadow box in this case, Boyle v Preketes, 262 Mich. 629; 247 N.W. 763 (1933), considered an appeal from a directed verdict for defendants where plaintiff sought damages for injuries suffered when she failed to negotiate the steps leading to the lower level of a candy store-restaurant. The Court in that case stated:

"Touching plaintiff's claim that her attention was distracted by the display of defendants' wares, it may be said that there was nothing unusual as to the manner or character of the display. We find nothing in this record which would justify the claim, at least made inferentially in behalf of appellant, that the display of the merchandise here kept for sale because of its attractive nature can be held to lessen the degree of care which plaintiff was required to exercise for her own safety." 262 Mich. at 632-633.

With respect to the alleged greasy substance on the stairway, Carpenter v Herpolsheimer's Co, 278 Mich. 697, 698; 271 N.W. 575 (1937) provides the general rule:

"The proprietor is liable for injury resulting from an unsafe condition caused by the active negligence of himself and his employees, Wine v Newcomb, Endicott & Co, 203 Mich. 445 [1918]; and he is liable when the unsafe condition, otherwise caused, is known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have knowledge of it. Yarington v Huck, 218 Mich. 100 [1922]."

Knowledge of the unsafe condition is inferred where occasioned by the proprietor or an employee. See Vice v Great Atlantic & Pacific Tea Co, Inc, 53 Mich. App. 140; 218 NW2d 766 (1974). Here, however, there was no evidence of how the alleged substance got on the stairway or that defendants had knowledge of its presence. Thus, the question becomes whether the condition existed for a sufficient length of time so that the storekeeper should have had knowledge of it. See Holliday v National Dairy Products Corp, 50 Mich. App. 366; 213 NW2d 289 (1973), rev'd, 391 Mich. 816 for reasons set forth in the dissenting opinion of Judge Bronson, reported at 50 Mich. App. 366, 370; 213 NW2d 289 (1973).

The majority opinion in Holliday, supra, at 368-369, points out the problem we are facing in the present case with respect to constructive notice of an unknown substance but fails to provide the answer.

"The plaintiff's theory of the case was that he had slipped upon an unknown object, and that that object had been in the parking lot long enough to become snow covered. There was no testimony that an agent or employee of the defendant was responsible for the presence of the hypothetical object on the parking lot. Plaintiff's theory was that since the object was present long enough to become snow covered, it was present long enough for defendant's failure to discover and remove it to constitute negligence.

"In most cases of a similar nature which have reached appellate courts in this state, there has been no question regarding what caused the plaintiff's fall. The question has generally been one of the duration of the offending condition. See e.g. Winfrey v S S Kresge Co, 6 Mich. App. 504; 149 NW2d 470 (1967); Serinto v Borman Food Stores, 3 Mich. App. 183; 142 NW2d 32 (1966), aff'd, 380 Mich. 637; 158 NW2d 485 (1968); Galloway v Sears, Roebuck and Co, 27 Mich. App. 348; 183 NW2d 354 (1970); Filipowicz v S S Kresge Co, 281 Mich. 90; 274 N.W. 721 (1937); Goldsmith v Cody, 351 Mich. 380; 88 NW2d 268 (1958); Evans v S S Kresge Co (On Rehearing), 290 Mich. 698, 703; 291 N.W. 191 (1939)." 50 Mich. App. at 368-369.

The majority went on to characterize the evidence as only showing "that there might have been something under the snow" and held that these circumstances failed to raise a jury question. The Supreme Court, however, adopted Judge Bronson's dissent in Holliday which found the evidence of the existence of some foreign object under the snow to be sufficient to affirm the trial court's denial of defendants' motion for directed verdict and judgment notwithstanding the verdict.

Nevertheless, plaintiff's theory of notice in Holliday renders it inapplicable to the case at bar. Plaintiff in Holliday used the amount of snow which had fallen on the parking lot to establish the length of time the alleged object remained in a certain place. In the present case, there is no evidence that the alleged slippery substance was on the stairway long enough so that defendants, in the exercise of reasonable care, should have known it was there.

Viewing plaintiff's testimony in the light most favorable to her, there is still no evidence of how the alleged substance got on the stairway or that defendants had knowledge of its presence. Moreover, there is no evidence that the substance was on the step for a sufficient length of time so that defendants should have had knowledge of it. In short, plaintiff did not prove actionable negligence and the trial court erred by failing to grant either defendants' motion for directed verdict or judgment notwithstanding the verdict.

The judgment is reversed with costs to appellant.