Lee v. Safeway Stores, Inc.

184 A.2d 212 (1962)

Marie C. LEE and Chester Lee, Appellants,
v.
SAFEWAY STORES, INC., a corporation, Appellee.

No. 3004.

Municipal Court of Appeals for the District of Columbia.

Argued July 9, 1962. Decided September 18, 1962.

Josiah Lyman, Washington, D. C., for appellants.

Francis C. O'Brien, Washington, D. C., with whom William T. Clague, Washington, D. C., was on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

QUINN, Associate Judge.

Appellant Marie Lee brought this action to recover damages resulting from injuries she sustained while a customer in appellee's store. Her husband sought to recover for loss of consortium, services, and companionship. This appeal is from an order of the trial court setting aside a verdict for appellants and granting appellee's motion for judgment non obstante veredicto. We must determine whether the evidence presented by appellants was sufficient to warrant an inference of negligence and the submission of the case to the jury in the absence of proof of a specific act of negligence on the part of appellee.

In one of appellee's smaller self-service food stores customers were furnished wire shopping baskets which they could carry while making their selections. The baskets were stacked one inside the other near the front of the store by store employees and the customers themselves. On the day in question Mrs. Lee entered the store and went to the shelves adjacent to the area where the baskets were stacked. As she bent over to take two cans from the bottom shelf three or four baskets fell from a stack, injuring her. She testified that she did not know what caused the baskets to fall. However, on cross-examination, she said that on a previous occasion she had described the accident as having resulted when someone tried to get a basket while she was bending over.

In the absence of a showing of specific negligence appellants sought to rely upon the doctrine of res ipsa loquitur by urging that the baskets were always within the control of appellee. The trial court refused to so hold, and we must agree that the evidence fails to support appellants' contention. At most Mrs. Lee was able to show that she was injured when struck by several wire shopping baskets which appellee provided for customer use. Unlike Lehman v. Great Atlantic & Pacific Tea Company, D.C.Mun.App., 136 A.2d 397 (1957), the baskets were articles which customers ordinarily handled, and it is at least equally probable that another customer's negligence caused the injury. We are aware of the dangers which lie in too literal an interpretation of the requirement of "exclusive control," but there must be some insistence upon a rational basis for finding that it was more probable than not that appellee's conduct caused the injury.

Affirmed.