Danisan v. Cardinal Grocery Stores, Inc. , 155 Cal. App. 2d 833 ( 1957 )

PEEK, J.

This record presents an appeal from judgments based on orders of nonsuit for damages for injuries sustained by plaintiff when she slipped and fell while shopping in the Plumas Food Market in Marysville. The motion for nonsuit was denied as to the defendant Manuel Rose, and thereafter the action was dismissed without prejudice as to him.

The building in which the accident occurred was leased to the three defendants—Cardinal Grocery Stores, Inc., a corporation, referred to herein as “Cardinal”; Mario Del Pero, Hugo Del Pero and Gus Mondon, doing business as Del Pero-Mondon Meats, hereinafter referred to as “Del Pero-Mondon”; and Manuel Rose. The defendants sold groceries, meats, and produce respectively. Each defendant had a lease which covered a particular area of the building and provided among other things that the lessee should have “. . . the right of ingress and egress in, to, upon, through and over all parts and portions of said property as may be necessary to carry on and operate . . . [the particular department] for which this lease is given and made, and other conveniences as may be furnished and supplied in and upon said premises for the general use of all tenants hereof and/or patrons of the business conducted thereupon.”

The defendant Del Pero-Mondon occupied the northerly portion of the building. A meat display counter extended from the front to the fear of the building. Behind the counter was a meat-cutting room, as well as refrigerated storage rooms for that department. The center portion of the building was devoted to the grocery area. Storage space for this department was at the westerly side of the building and at the southeast corner thereof. The produce area was located in the southwesterly corner of the building. Immediately to the east of the produce area was a 5-foot partition ; however nothing on the north side of the produce area prevented free passage between it and the grocery area. The two customer entrances were at the west or front of the building, one opening into the grocery area and the other into the produce area.

When called as an adverse witness under section 2055 of the Code of Civil Procedure, the manager of the defendant Cardinal testified that there was parking space in front of the building which was used by the customers of all three defendants; that the only entrance for customers was through the two doorways as previously noted; that there was no line, partition or other visible indication of division of the three departments; that there was free movement from one to the other; that customers paid each department for articles purchased but that the employees at the checkout stands would carry out any article purchased from any of the three; that there was a neon sign on the building reading “Plumas Pood Market”; that for the purpose of economy the three defendants usually advertised under the common heading of “Plumas Pood Market” with separate boxes in the ads for each defendant, and each paid for its own space; that the cost of heating and cooling the building, as well as the maintenance of the sign, was prorated among the three lessees; that each lessee followed an imaginary line in maintaining and keeping clean the area in which its business was conducted, although the area in front of the meat department was always swept by employees of Cardinal and never by employees of Del Pero-Mondon; and that it was to their mutual benefit to have the three departments in the same building in that the more people attracted to the premises, the greater the volume of business for each department. The defendants, Hugo Del Pero and Manuel Rose, who were likewise called under section 2055, in general testified to the same effect as Mr. Arnoldy, the Cardinal manager. Rose additionally testified that his wife and son helped him in the store; that on the day of the accident he had swept the produce area at approximately 4 p. m.; that his wife had previously left the store; that he then took over the checkout stand; and that his son was restocking shelves and helping carry out groceries and produce for the customers. He further testified that the parking lot and sidewalks were policed solely by the employees of Cardinal who also were the only persons who opened and closed the premises.

The plaintiff testified that it was her intention upon entering the store to shop in all three departments. Actually she first bought meat, then went to the Cardinal area where she made certain purchases of groceries and finally went to the produce section. While making her purchases there at approximately 4:30 p. m., she slipped on some substance, presumably an onion skin, and suffered the injuries for which she sought damages. The point where she fell was in the main aisle of the produce area and nearly opposite one of the two customer entrances to the building.

As noted in Prosser on Torts (2d ed.) section 78, page 458, what the author refers to as the “area of invitation” will of course vary with the circumstances of the case. He further notes that the invitation extends to the entrance of the property and to a safe exit after the purpose which has brought the invitee is concluded, and it extends to all parts of the premises to which the purpose may reasonably be expected to take him. And in Restatement of Torts, section 343, page 940, it is said that in determining “. . . the area included in a business invitation, the nature of the business to be transacted is of great importance.” In line with the general rule as stated, our courts have held: “The invitation of a proprietor extends not only to all parts of the premises which the patron expressly is invited to use, but also to such parts as he or she is impliedly invited to enter, and the invitation also extends to those portions of the premises where the invitee, under the circumstances and conditions of his invitation, would naturally be likely to go.” (Gastine v. Ewing, 65 Cal.App.2d 131, 141 [150 P.2d 266].) The court therein further held that the determination of the question of “. . . whether the invitation, express or implied, included that part of the premises where the injury occurred is generally not one of law. On the contrary, it is usually a question of fact for the determination of the court or jury.” (P. 141.)

The defendants argue, however, that even if it could be found that they invited the plaintiff to use the produce market as well as their own particular departments, nevertheless at the time of the accident she had concluded her purchases of meats and groceries, had no intention of returning to those departments, and that she was then acting solely for the benefit of herself and Rose. Furthermore, since they had no right to enter upon the area occupied by another and to clean the same, they owed no duty to plaintiff while she was shopping in the produce area. We cannot agree with such arguments. Although plaintiff testified that she had completed her purchases of meat and groceries and that the produce she was buying would have completed the purpose for which she entered the building, yet it could not be said as a matter of law that she had, for those reasons, ceased to be the invitee of the butcher shop and the grocery department since it is obvious that it was such a broad invitation that had been extended to her to come into the building that the jury could hold the purposes of the invitation and of her acceptance through entrance upon the premises had not been exhausted merely because in her mind at the moment she fell she did not intend to make further purchases.

From the record it would appear that here, as in the case of Woodard v. Bank of America, 130 Cal.App.2d 849 [279 P.2d 1018], it would be difficult to attribute to the joint operation of the defendants any purpose other than that by their concerted action they intended to and did invite the public generally to patronize the Plumas Food Market as such; that the invitation was not limited to the area occupied by any one defendant to the exclusion of the others, but to the contrary was an invitation by all defendants and extended to all portions of the premises where plaintiff would likely shop. Such conduct was entirely consistent with the lease of each defendant which gave to him the right to use all the open space in the market in common with the other defendants. In fact such use was essential to the defendants’ common, over-all plan of operation and hence it could be found that defendants knowingly and deliberately furthered the browsing habits of the ordinary shopper.

The second argument of defendants is equally untenable. In the ease of Biondini v. Amship Corp., 81 Cal. App.2d 751 [185 P.2d 94], similar contentions were made. There the plaintiff, a business invitee, brought an action against several defendants for personal injuries. The trial court granted defendants’ motion for a nonsuit and plaintiff appealed. In reversing the orders of nonsuit the reviewing court held that the lack of ownership or legal right to maintain or repair property, while important, is not conclusive; that one might expressly or impliedly adopt the property of another and invite others to use it, and if they do, the invitor owes to such invitee a duty to exercise reasonable care to see that the property is safe. The court then concluded that whether or not they had done so was a question for the jury. The rule therein expressed is equally applicable to the facts in the present case.

And lastly it is true that to impose liability for injuries suffered by an invitee due to the condition of the premises, the invitor “. . . 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. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it. . . .” (Hatfield v. Levy Brothers, 18 Cal.2d 798, 806 [117 P.2d 841]; see also Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 128 [276 P.2d 118].) But as the court there also held, “. . . the question of whether the condition which caused the injury had existed so long as to be discoverable by the store owner within a reasonable time is for the jury.” (P.807.) Again, in Louie v. Hagstrom’s Food Stores, Inc., 81 Cal.App.2d 601, 607 [184 P.2d 708], the court held: “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 . . . [and] a person operating a grocery and vegetable store in the exercise of ordinary care must exercise a more vigilant outlook than the operator of some other types of business where the danger of things falling to the floor is not so obvious.” (Hale v. Safeway Stores, Inc., supra.)

It necessarily follows that when the evidence in the instant case is viewed in light of the well-established rule relative to nonsuits (Blumberg v. M. & T. Incorporated, 34 Cal.2d 226 [209 P.2d 1]), and the rules heretofore set forth, there was ample evidence to warrant submission of the cause to the jury.

The judgments are reversed.

Sehottky, J., concurred.