Lingerfelt v. Winn-Dixie Texas, Inc.
645 P.2d 485
Okla.
1982
Check Treatment

*1 I portion majority dissent to that

opinion remanding support issue obli-

gation. I affirm the trial court in all would

respects. WILSON,

I am authorized to state that

J., joins expressed in the views herein.

Margaret Wesley LINGERFELT and

Lingerfelt, Appellants, TEXAS, INC.,

WINN-DIXIE

corporation, Appellee.

No. 53233.

Supreme Court of Oklahoma.

March

Rehearing April 27, Denied *2 ...

1. ... 2. ' It reasonably 3. foreseeable that dangerous condition was by created or might by arise from the used means a storekeeper exhibit commodities for and dangerous sale that such injuries was the cause of the plaintiff.” gave The instruction which the Court fol- lows:

“The plaintiff burden is on the in slip a fall case prove by preponderance and a Guthrie, Davis, appellants. Frank for of the evidence W. either that: ... 1. Foliart, Niemeyer, Mills & Oklahoma City, appellee. for ... The fall was caused proximately

DOOLIN, Justice: a condition created storekeeper or an and employee “slip-and-fall” This is a case a dif- with such condition existed for a sufficient the traditional ferent twist. Shall “notice” storekeeper for employee time or requirement storekeeper in waived have had actual knowl- constructive in the display situations edge thereof have it removed in goods? We answer in the (Em- ordinary the exercise of case.” affirmative. added). phasis Lingerfelt Margaret (Shopper) stopped at simple. The distinction is The Court’s (Store) defendant’s Guthrie store one Sun- required finding instruction a of “notice” of day pick up afternoon to a few Just items. strawberries; spilled plaintiff’s in- front display inside the door she noticed a not, struction did but in called strawberries, effect for heaped high in uncovered liability negligent display packaging. The cov- containers. strawberries were not cellophane wrap- ered with because Store’s Shopper alleges negligent Store was ping a dif- machine was broken. While in allowing strawberries to be sold un- store, part Shopper slipped ferent of the on wrapped high heaped they containers so some had strawberries which fallen on easily any point could fall on floor at an floor from unknown source. suf- She Store, creating thus hazard custom- injuries fered extensive and sued Store. ers. jury verdict each finding returned a argues it only Store should be held liable party Shop- “0%” and assessed if it had actual or constructive notice per’s damages $4,636.00. at floor, strawberries which had fallen on appeals, Shopper single on issue of Shopper to prove failed such notice. improper instruction.1 argues Shopper such notice should not be required due to the inherent hazard in the requested Shopper following instruc- of packaging cus- tion which was denied: tomers’ habits. plaintiff “The burden slip is on the in a prove by and fall case to a preponderance usually Oklahoma has relied on requirement of the evidence either that: in past “slip fall” cases appeal validity 1. Store does not on the form of of such verdict. verdict, and therefore we reach no conclusion stores,2 Shopper points we have nev- involving grocery juris- but to a trend some involving with case presented er been dictions which hold stores liable for the packaging of alleged dangerous display and spills of customers, their self-service regard- goods in this fashion. less of actual notice and failure to clean up. The cases call for a higher “slip standard A recent and fall” case Oklahoma facilities, requirement of up summed the traditional self-service supermar- whether *3 notice: leading kets or cafeterias. A case in this pivot liability sought to be line is Corporation,

“The Ciminski Finn 13 is timely here on the Owner no imposed 815, 850, Wash.App. 537 P.2d 85 A.L.R.3d An invitor cannot be held danger. tice (1975), 991 wherein a cafeteria customer it be shown that responsible unless he/she slipped spilled liquid on a walking while charged gain be notice or could with had through the line. Ciminski turned on the knowledge of the condition in time ing fact that the cafeteria had no written policy give sufficient to effect its removal or to maintenance; on employees were often re- warning Rogers its presence.” Hen minded to look out for food on the floor and nessee, 602 P.2d (Okl.1979). 1033 to up immediately told clean it upon dis- However, Rogers also we said: “Ab- covery. No one employee responsible was sent that invitor created the condi- evidence policing area. Ciminski court he/she to of or tion or that failed warn concluded: exist, peril remove a known to a demurrer “Requiring the a owner of self-service put ‘slip litigation must an end to a and fall’ operation to exercise reasonable care in negligence.” on 602 P.2d at based See 1035. protecting his business invitees from the Rogers a condition was foreseeable risks of his doing method of by spilling caused water from wash sinks in business does not make such owner an beauty a school. We said the invitor did insurer of those premises. on his If he spilled not create the condition precautions has reasonably taken all nec- water, it, and had no notice of and there- essary protect to injury, his invitees from fore was not liable. merely he is not liable because someone is Stores, Feeback, Safeway Inc. v. supra injured property.” on his 1, Shopper slipped footnote on some The court concluded that Mrs. Ciminski’s carrots on the floor the store near the genuine evidence “created as issue vegetable Shopper presented counter. no precau- whether Finn had taken reasonable evidence of of the store its safety.” tions for her The court did not said, we employees and “Unless it is estab dispense with the requirement; notice slipped lished that on customer store floor expanded it: “An owner of a self-service of store owner’s em through negligence operation prob- has actual notice ployees, of these or because condition of which notice, (shoppers may owner had actual or constructive lems handle 3 recovery.” there be can no employees.) be careful as store In choos- ing a self-service of providing method Rahill, 1, supra In Fuller footnote items, charged he is with the Shopper slipped pro- on some fruit near the the foreseeable risks inherent in such a liability duce rack in the store. We denied operation mode of .... An owner is re- grounds Shopper failed to quired precautions take reasonable employees placed the store either the of- against deceptive such on his fending fruit on the floor or conditions caused it through fall negligence. premises prevent patrons.” there their Stores, Keef, 2.Safeway Inc. v. 390 at P.2d 521. (Okl. Feeback, 1966). Safeway Stores, (Okl.1964). Rahill, Fuller v. 496 85 A.L.R.3d 1000. (Okl. 1972). Spicer, P.2d 785 Kassick v. higher strawberries, up does not create stan- That the heaped

“This rule in an operations. for self-service It basket, dard of care prior uncovered created a condition owner or property occu- axiomatic disputed, the accident cannot be but was pier required to use reasonable to- liability it such a “condition” can be invitees. What is reason- ward his business predicated proper thereon? The rule is set depends upon the and the cir- able nature Pepsi-Cola forth in Bottling Company of surrounding the business con- cumstances Brady, (Okl. Tulsa v. Von 386 P.2d ducted. One of the circumstances to be 1963), wherein Court said: operation.” considered is predicated “Liability prior cannot on a Shopper, by citing the rationale of Cimin- merely and remote cause which furnishes ski, have us Store supra, strictly would hold occasion for an injury spilled produce, liable for caused injuries resulting intervening from an unrelated regardless produce of how and whom cause, though and efficient even inju- spilled regardless *4 ry would but not have resulted for such spillage up, to clean it opportunity and/or occasion; condition or but a condition simply adopted the because Store self-ser- injury might from which have been antic- display. vice mode we cannot do. of This ipated or which rendered the avoidance of display, We do not self-service in and view injury impossible will be the itself, inherently dangerous of to war- so notwithstanding intervening an liability rant of a imposition strict doctrine. agency.” (Emphasis supplied). today’s marketing the store own- climate choice; er has no other he cannot revert The above rule not new to Oklahoma. our selling grandpar- back to method Spicers, It was approval cited with To do invite days. competi- ents’ so would 576,188 Rudd, 199 Okl. problems. tive Spicers 1911 cited a case for the following, can, however, He maintain as safe “The rule seems to be negli- that where the shopping possible, environment as self- gent act consequences causes such as in the shopping service and habits taken into ordinary things, course of were likely to fact, duty account. he such a owes his arise, might, and which therefore reason- otherwise, shopper. do To arise, ably expected which or it was manner, unsafe an or contemplated by parties might arise, liability grounds invites he had at least follows; liability Stephens otherwise not.” dangerous constructive condi Co., 340, City Ry. Oklahoma 28 Okl. 114 a shopper tion. When has shown that cir (1911). P. 611 create cumstances were such as to the rea probability dangerous sonable condi transcript The discloses that at least uncovered, (e.g. heaped strawberries), tion three of defendant’s were employees aware occur, the would invitee need also that “safety” was one for covering reason proprietor the business had notice of words, other strawberry baskets.5 In specific (spilled strawberries) hazard “anticipated” defendant injury might result order proprietor to show the breached his if the strawberries were uncovered. of due to the invitee. Bozza v. Inc., Vornado, Torts, Second, 200 Restatement of N.J. A.2d 777 § (1964). speaks (d): also the issue at subsection Brown, Raymond Testimony co-manager Q. safety Were there reasons also? Well, say yes defendant: A. I would have to to that. Q. Why you say yes? would “Q. wrap- what And was the reason for this Well, keeps A. the strawberries from be- ping of the strawberries? ing dropped thing on the floor for one or Well, people always picking A. are in the keeps people wrapped.” getting they’re ’em if into they unwrapped, they strawberries when are Transcript page See Trial tendency do have a to fill own their contain- they pick through ers like like them them. intervening If Probability key action. A element of the

d. evidence is that three different store employees or conduct has created admitted the actor’s that “safety” was one reason (although not a situation which harm- continued one) the primary covering the strawber- capable left to itself but is less if cellophane. ries with Testimony also re- made being others vealed there was an alternative to using the action of a human subsequent some broken wrapping cellophane machine: could or or being subsequent animal placed have been over the strawberries with force, ac- operation of a natural a rubber band according to Raymond depends upon tor’s wheth- Brown, co-manager. However area su- as man er he a reasonable should pervisor, Leroy McNally, instructed pro- operation action recognize such manager duce to display the strawberries probable. The actor as reasonable unwrapped heaped up. required to man is know habits In past “slip and fall” cases involving beings of human propensities self-service markets we have steadfastly re operation animals and the normal fused to make the store an insurer of its locality natural forces in which customers, required proof but have an intentionally he has created such a act of negligence part, on its such as lack of which situation or in he knows diligence watching due for and/or clean realize that his is like- should conduct ing up spillages, led which to the condition (See create ly to such a situation. which caused the accident. Our decision today 290.) Insofar as such does not alter that rule. Once the § *5 plaintiff introduces evidence proves which a would lead the actor as reasonable aby preponderance the of evidence the that recognize particular to a man action care, defendant failed to exercise the due being a of a human or animal or may defendant attempt negate then to said particular operation a natural evidence by proving he did in fact exercise normal, customary the force or due care. Spicer, See Kassick v. 490 P.2d required anticipate actor is to (Okl.1971). Thus, 251 not could be said negli- provide against it. The actor is the that rule makes store an insurer. gent he intentionally if creates a situ- Vornado, Bozza v. supra. ation, or if his conduct involves a risk simply We hold that when an invítor situation, creating a which he foreseeable, creates such a unreasonable likely danger- should realize as to be risk, by whether the direct act of an em ous to others in the event of such ployee or his by own indirect or carelessness customary operation. or normal act is negligence, consequences he liable for the (See 303.) § Shopper prove thereof and need not Meaning e. of “normal.” The actor aas the specific condition thus created. required reasonable man is to antici- AND REMANDED FOR REVERSED pate provide against the normal NEW TRIAL. operation of natural forces. And

here the word “normal” is used to LAVENDER, OPALA, JJ., SIMMS and only describe not those forces which BRETT, Special Judges, CORNISH operate periodically or with a certain concur. degree of frequency. J., IRWIN, BARNES, J., C. V. C. J., We v. HODGES, followed this rationale Pratt dissent. Womack, (Okl.1961), 359 P.2d 223 wherein ap- The Honorable TOM CORNISH was by canned stacked store employees pointed special judge vacancy the the fill shopper’s

fell on a foot. found We suffi- WILLIAMS, created J. death prima cient evidence for a facie case based appointed The Honorable TOM BRETT stacking the negligent of the cans in an J., place HARGRAVE, special judge irregular disqualification. manner. who filed his 490

BARNES, Lingerfelt Vice Chief Justice. in this was required case prove by preponderance a of the evidence agree dissent. respectfully I I with that Winn-Dixie failed to exercise due care is majority opinion that notice not required in its method of displaying “slip-and-fall” shown in a to be strawberries. I think she failed to do so. when the store “created action the condi- The store owner is not an insurer Hennessee, Rogers tion.” v. P.2d safety customers, of his but owes them a (Okl.1979). Generally, under Oklahoma law duty exercise reasonable to maintain plaintiff has available two viable theo- premises a reasonably safe condition prove ries that defendant breached any and warn of dangers. Rogers hidden First, duty plaintiff may his of care. Hennessee, supra; Stores, v. Safeway Inc. dangerous Criner, condition resulted 380 P.2d 712 An invi- normal, tee ordinary a act of the store owner or assumes all or obvious upon risks Stores, premis- attendant the use of the Safeway employees. his See Inc. v. es, and the or occupant owner liable Feeback, (Okl.1964); 390 P.2d 519 Fuller v. to an invitee resulting from a Rahill, (Okl.1972). Second, 496 P.2d 785 danger which was obvious or have should dangerous where not attrib- been observed the exercise of ordinary utable to the store owner care. Kahn, DeBaca v. 49 N.M. employees plaintiff may or its show (1945). Stores, P.2d 630 Safeway either that the store owner had actual Sanders, (1962). What consti- of the condition such condi- due tutes care of a store owner must such period tion existed for of time that determined the circumstances and condi- he in the exercise due care should have surrounding tions the transaction under discovered condition. Safe- consideration. DeBaca Kahn, supra; Stores, Keef, (Okl. way Inc. Mahoney v. J. Penney C. Company, 71 N.M. However, 1966). under both theories 244, 377 (1963). The court in the plaintiff only prove must not the de- DeBaca case stated: keep his of care fendant breached ground “... the true of liability is the premises reasonably safe condition proprietor’s superior knowledge of the *6 was negligent, and therefore but he must perilous instrumentality danger and the prove also that the negligence defendant’s persons therefrom going upon to the the proximate injury. was cause of the is property. perilous It when the instru- mentality is known to the owner or occu- case, therefore, present In the Lingerfelt pant and not known person injured to the required to prove was not notice under her recovery is permitted ...” theory duty that of Winn-Dixie breached its nothing I can see inherently obviously negligent care and was in its of method display in a of strawberries in displaying the strawberries. order to unwrapped containers were plain which was, however, required recover she prove to sight and to similar all other of displays duty that its care Winn-Dixie breached vegetables fruits and in the area. Fruits negligent displaying and was the straw- vegetables oranges, bananas, and such as negligence berries and that this was the potatoes, etc. apples, normally displayed are proximate of her injuries. cause unwrapped in an We condition. cited with majority’s I dissent to the conclusion that approval Safeway Stores, Sanders, Inc. v. Lingerfelt proved that under the evidence supra, the Massachusetts case of Adriance Winn-Dixie breached its care Henry Corporation, Duncan 291 Mass. negligent was therefore in displaying 202, 196 N.E. where that court stated: unwrapped containers, strawberries in I “Some propri- latitude must be allowed majority’s also dissent to conclusion etor of to display goods store in manner Lingerfelt that proved under the evidence consistent with nature of in a busi- that such of display packaging ness, negligence where is claimed in ac- the proximate was injuries. cause of her injuries.” tion customers’ that Winn-Dixie is no reason bilities that come to There mind. Did it fall out a display that such anticipated have of its container should because a shopping cart unwrapped in an tipped strawberries over? Did fall because someone danger source to invited put would be a something in on top the basket of it and to find in the persons expect who would tipped the container over? aDid customer naturally which would at store conditions dislodge berry while obtaining berry in which the business was tend manner Did pick up eat? a customer berry visibly carried on. There was openly and eat the display from and then discard it on danger nothing here. There was no hidden the floor away? several aisles Were cus dangerous in the inherently obviously playing tomers catch with the strawberries? display. Displays of fruits and strawberries examples Many envisioned, more be can strawberry vegetables including however, to say suffice it that there no visible obvious an invi entirely was evidence that the negligent display so called Therefore, opinion my tee. it is that under of strawberries Lingerfelt’s caused injury. ease, this the facts and circumstances in The proximate of any injury cause must Lingerfelt that prove failed to Winn-Dixie the efficient cause which sets motion duty of in displaying breached its leading chain of inju circumstances to the strawberries, and therefore she failed to ry, if negligence complained of part prove negligence on the of Winn-Dixie. merely furnishes a condition which the evidentiary proof such the case Absent possible subsequent and a act gone to jury. should not have See caused the injury, existence such Hennessee, Rogers supra; Safeway proximate condition is not the cause of the Stores, (Okl. McCoy, Thur injury. Dunkley, (Okl. 1962). 1970). only, my opinion, Lingerfelt Not did As was said in Hogan, Barrans v. 62 N.M. prove fail to that Winn-Dixie’s method of (1956): displaying strawberries was “... to say that the defendant did have negligent, but she also failed to that particles might that of food alleged negligence proximate was the fall to floor at anytime, is not suffi- injuries. cause her order discuss to charge negligence cient them with as proximate case, cause issue in this I plaintiff’s cause of misfortune.” that displaying must assume the method of added.) (Emphasis the strawberries was “the ap Lingerfelt produce must more than a plication presupposes showing mere in order negligence.” Hardware Mutual Insurance recover Winn-Dixie for the acts Lukkin, (C.A.Okl. Company v. 372 F.2d 8 persons. majority third What the seems 1967). assuming arguendo Therefore that imply Lingerfelts if the can show *7 negligent displaying Winn-Dixie was in and possible presence of negligence part on the strawberries, packaging the was there any packaging display- Winn-Dixie in its negligence proxi evidence that was strawberries, ing of then proceed she need Lingerfelt’s of her injuries? mate cause no further and the burden will shift injuries directly must have resulted Winn-Dixie to that fact exer- proximately negligence from Winn-Dixie’s negligent. cised due care and was packaging in the displaying effect, majority says, negligence that strawberries before Winn-Dixie will any showing alone is Kinchen, sufficient without be liable therefrom. Woodward v. proximate In (Okl.1968). my opinion cause. this is not this case there absolutely no evidence law because of this “void” in the whatsoever as to evidence as to the strawberry got how on the floor. We issue know case should not have to a strawberry do that was been submitted jury theory several aisles on this away floor the strawber act display. possi There are ry grounds innumerable the store owner in

for recovery. Where the admitted facts a causal connection between

failed show alleged

the act of therefrom, of proxi- existence

have resulted question of law for cause is a

mate trial court

court and it is for defendant. judgment Cheatham

enter VanDalsen, (Okl.1960); Andy Company, Jansen

Schlender The trial court cor-

P.2d that this was

rectly surmised a case where strawberry

notice to the store owner only ques- on the was the

being floor viable jury.

tion to submitted to the conclusion, majority’s ruling in my

opinion imposition effect amounts

liability on a “no fault basis” and store vegeta-

owners who their fruits and customary

bles in their usual and manner result, course,

will become insurers. The wrap will

will be stores be forced to containers,

cellophane or other their fresh

produce my which in mind is not warranted average

or desired store customer. IRWIN,

I am authorized to state that C.

J., HODGES, J., join the views here-

in expressed. HUGHES, Zeitler,

Carole Sandra and Dr. Plaintiffs, Cotton, (Appellants),

Curt BANK, A.,

The FIDELITY N. Executor Ervin, individual,

and John an Charles

Denny, Denny, Lewis A. Mrs. Earl Web

ber, Daniel, Mrs. James P. Mrs. William

Duncan, Martin, and Mrs. Wilbur A. De

fendants, (Appellees).

No. 53505.

Supreme Court of Oklahoma.

April 6, 1982.