*1
Bоbman
SeriNto
Food Stoees.
FOOD
v. BORMAN
STORES.
SERINTO
op
the Court.
Negligence
Storekeepers—Safe
Premises —Cus-
Condition
1.
—
tomers.
duty
provide reasonably
storekeeper
safe
has the
aisles
injury resulting
liable for
for customers and he is
an
negligence
the aetive
unsafe condition caused
himself
or,
caused,
employees
if otherwise
where it is known
and his
storekeeper
or
or is of such a character
has existed a
knowledge
length
sufficiеnt
he should have had
of time that
of it.
Negative
2. Evidence —
Evidence.
Negative evidence
that a circumstance
is evidence to the effeet
pereeived.
or fact was not
Negative
Testimony.
3. Same —
party
upon negative testimony
The burden
who relies
showing
pertaining
that of
the circumstances
to the non-
observance,
time,
the witness’ activities at the
the focus of
attention,
his
acuity
sensitivity
his
to the
in-
occurrence
volved,
geographical
location,
faculties,
the condition of his
physical
and all
and mental attributes.
Negligence Negative
Testimony
4.
—
Test.
Testimony,
against
action
storekeeper
per-
customer
injuries
by falling
sonal
sustained
on floor of store on broken
[7]
[8]
[5]
[9]
[1]
[6]
[2-4]
Am20
Am38
38 Am
38 Am
§§
30 Am Jur
§§
29 Am
Am
285, 291.
1092, 1093.
Jur, Negligence
Jur, Negligence
Jur
Jur, Negligence
Jur, Negligence
Beferences
Jur
2d,
2d,
Courts
2d,
Evidence
Evidence
§
§§
§§
§
§§
§§
136,
131,
Points
1092,
§
§45,
332-334, 356,
136.
258;
1093: 38
30 Am Jur
Headnotes
358.
Am
Jur, Negligence
2d,
Evidence
in the store she heard no sound held, accepting negative testimony, to meet the test for justify inferring and not reasonable minds *2 jar on broken the floor before she entered the store. Mayonnaise 5.Same — on Stoke Floor -Notice—Question Aisle — por Juey. against storekeeper Evidence adduced action customer for personal injuries by falling floor of store sustained aisle jar held, mayonnaise on ques- broken of raise a insufficient to for tion of notice notice of or constructive unsafe condition. Separate Opinion. Black, J. 6.Negligence Negative Testimony op Proop. — Test —Burden against Testimony, storekeeper per- in action customer for injuries by falling sonal sustained on store on broken floor of jar during mayonnaise, that the 4S or 50 minutes she was of resembling jar breaking in the store she heard no sound does accepting negative not the meet common-law test testi- for mony, justify does reasonable minds to infer store; broken was on the she entered the floor before however, proof the burden in such cases should be revised of place producing upon party so as to the onus evidence of possessed superior knowledge opportunity is
, who of for explanation circumstances, the causative and where a retro- of inexpedient apply active declaration is a court should the out- present worn rule to the case and announce that it will feel apply another rule to transactions consummated in the free future. Separate Opinion. Beennan, Peoop Prospective Overruling. 7.Negligence — —Bueden overruling Prospective placing eommon-law rule burden of supermarket slip pro.of customer in a of fall legislative judiсial usurpation power and there should of “inexpedient” apply be no case where it is the correct rule law to a case at hand. v. BokmaN Stores. SbbiNto Food
Dissenting Opinion. Kavanagh T. M. JJ. Adams, Jury Evidence—Storekeeper—Cus- Negligence foe 8. — Question — Mayonnaise. tomer-Dangerous Premises — Toy against storekeeper Testimony, personal action customer by falling injuries store on sustained broteen floor of during the 45 or 50 minutes she was in resembling jar breaking, no sound the store she heard had a the aisle where the the cashier view of spilled, aislé, observed no customers and that present question storekeeper’s negli- held, sufficient might differ,' gence upon reasonable minds and is thus which jury. question
Dissenting Opinion.
O’Hara, J. Negligence Dangerous Notice —Constructive Condition— Evidence. storekeeper dangerous as to existence Constructive *3 premises question jury in condition is a сustomer’s of for injury falling on broken action sustained as a result for mayonnaise in store aisle. Appeal Appeals, Lesin- 1, Division Court reversing ski, J., Quinn, JJ.,. and and C. Watts (Halford Wayne; I.), presiding. Streeter J., Sub (Calendar mitted December 1967. Docket 5, 45, No. 51,503.) May Nos. Decided 51,502, 1968. 6, Rehearing September denied 1968. App affirmed. by against
Declaration Catherine Borman Serinto Michigan corporation, injuries Food Stores, for slip by sustained in a and in a fall store ownеd by Anthony defendant. Derivative suit Serinto. judgment Cases consolidated for trial. Verdict and plaintiffs Appeals. for reversed Court Plain- appeal. Appeals tiffs Court of affirmed. 380 Mich plaintiffs.
Jerry D’Avanso, P. Joselyn, for Gary, & de- Bohall Gole, Martin, Be fendant. A awarded Kelly, injury damages received when an
Serinto stepped fell on a broken she on the floor of Stores, Food defendant Borman expenses, damages for medical her husband’s suit court The trial consortium. services, loss of verdict for directed motion refused defendant’s proofs plaintiffs’ also, refused and, the close notwithstanding judgment verdict. motion for Appeals issue stat- forth the set The Court 188): App ing (3 Mich appeals is whether in these “The sole issue raised prima plaintiffs proved facie case of not the knowledge an- as a matter of law. Stated notice or enough question way, evi- there other dence is: Was question or cоnstructive of notice raise part the mat- of the defendant so that notice on jury for deter- to a ter should have been submitted mination.” question presented Did is:
The sole to this Court answering Appeals the above the Court of err negative, holding question there was in the question enough for the court to submit the evidence jury? to the
Carpenter v. Herpolsheimer’s (1937), Mich Co. concisely (syllabus 1), distinctly forth sets duty storekeeper, follows: as a *4 duty storеkeeper provide the of a reason- “It is ably liable safe aisles for and he is customers injury resulting from an unsafe condition either negligence caused the active himself and employees if or, otherwise where known to caused, v. BormáN 641 Food Stores. SeriNto the Court. storekeeper a or has character the or length that he should a time existed sufficient knowledge (Emphasis ours.) it.” have had testimony prove only defendant’s offered plaintiff negligence testimony of Catherine was the testimony is set forth this Serinto, and resume of following App facts 3 in Mich 188. The opinion: are for this sufficient Plaintiff Serinto entered Catherine morning, Friday March about 10:50 on Good store prepared shopping list she had 27, take with of food only Easter, care and needs not meat proceeded following after had week; for the she but back shopping 3 select- aisles, and forth in of thе high ing see so she could not articles shelves the she turned to enter another, from one aisle aisle where pickles, were dis- cetera, et mayonnaise slipped played, and fell on broken jar foot and one on the floor a foot or a jar not the or the shelf; half from the mayonnaise she did see slipped fell; the on floor before she floors in the “clean and clear” and the store were spilled floor from the that was the ** * jar “was a creamish white, broken the sound floor”; she familiar with same glass breaking glass would that a the sound if she had been floor; it fell on hard make the prior to the accident store 45 to 50 minutes about anything during re- time this she did hear sembling jar breaking. of a the sound
Appellants testimony during contend that, 50 minutes 45 or Serinto resembling store, had sound heard no justify jar breaking, minds would reasonable inferring broken on the be- that the floor the store, fore she entered and “defendant should of its existence after to minutes, have known negligence.” failure and that this constituted *5 '642 380 Mich 637. Opinion of the Court.
Appellee attention there calls to the fact that jar testimony was no as to what extent fall, broken was that the Mrs. and contends there before Serinto’s testimony plaintiffs’ no to sustain contention
jar clearly fell from a shelf with andible shopping smash; that the could have rolled aoff cart; could fallen have from a shelf few inches dropped from the floor; could have from the hand partially yet of a customer who arrested its have fall, enough glass sufficiently fallen far to crack the scatter the arid concludes with the state- :ment “To find constructive notice from this record, we have first to infer fer that it fell, second, in- finally, a noise, made infer that the noise such that Mrs. Serinto some undefined concentrating distance, as she states she shoрping shopping her own and her list, would have * * * permit heard it. from these in the To infer
things, simply permit speculation place proof.” rely “negative
Plaintiffs on evidence,” defined as “evidence to the effect that a circumstance or fact perceived,”* requirement was not to sustain the proved they constructive notice. Granting due favorable view testimony any that she did not hear sound, requisite of which absence was and is tо her theory recovery, the fact remains that what regard related in nega- constitutes valueless applied tion within the rule which this Court Dalton v. Grand (1957), Trunk Western Railroad Co. Dalton, In here, no witness heard plaintiffs (the timely what the said did not occur blowing oncoming of train), yet whistle unanimously plaintiffs ruled Court that the had make .failed to out a neg- submissible case of causal Callaghan’s Michigan * 4 Heading (2d & ed), 36.193, Practice § Pood Stokes. BoemaN SeriNto the Court. given ligence. the same as that The reason 486): (pp assign which we now standing nonhearing, or alone, mere fact of “The probative dinarily as to the valne whatever has no Many the event. occurrence, of ns did not nonoccnrrence, falling Pearl Har hear the bombs *6 upon upon him who relies bor. Thus the burden negative testimony must show the the is marked: he pertaining nonobservance, to the circumstances at focus his at the thе time,- witness’ activities acuity sensitivity the occurrence his or tention, involved, geographical the condition of location, his physical all and mental faculties, short, those hearing upon his alertness attentive attributes principle expressed the this ness at time. We Minneapolis, St. & Sault Ste. Marie Lambert Paul per Co., we 107, 113, held, in which R. J.: Fellows, “ analysis that in those of the cases shows ‘This upon by held the it was that where relied they listening, that witnesses testified were their the coming upon upon the train, its attention they paying to it, their minds and were heed testimony jury. then their makes a case for the This theory they listening, giving that if were probabilities the train are attention, heed they signals they would if have heard had been ” given.’ quotation by an dis- This was followed extended cussion the authorities which have dealt with negative testimony and the circumstances under testimony which such will not out a or will make question negligence jury causation. testimony
Plaintiff did negative testimony meet this test and we do not testimony agree appellants’ that her with contention during she was in the 45 or 50 minutes the jar that, resembling sound that of a store, heard no justify in infer- breaking, minds would reasonable 380 Mich the Couet. ring floor that the broken before she entered the store. Appeals concluding
The Court of did not err in justify that there mitting not sufficient evidence sub- question to the of the existence broken jar on the floor of defendant’s store. appellee.
Affirmed. Costs J., C. Black, Souths, and BebNNAN, Dethmees, JJ., Kelly, J. concurred with (concurring). (3 Black, Like Division Mich Kelly App 183), applied correctly Justice our has plaintiffs’ theory recovery case law to and has theory wanting. accordingly found that I with vote Kelly to affirm. Justice though, precedential There more be said conjunction future fact. That tice of considered awith conceded fact is defendant had immediate no- *7 plaintiff Catherine fall and of the opportunity condition which it, caused hence full timely investigation proof of and submission of stem- ming investigation. following por- from'that The pretrial summary point tion of will suffice to up my allusion:
“Defendant’s version: operated “On or about March 27, 1959, defendant grocery city store at 3647 Dix in of Lincoln plaintiff Park. Defendant was informed about an accident or fall at abоut 11:15 a.m., on March manager inspected 1959. Defendant’s the area plaintiff, where the Catherine Serinto, claimed she jar had fallen and mayonnaise noted broken of dressing aisleway or salad on the floor in an of de- mayonnaise fendant’s store. The dressing- or salad appeared fresh and smooth and was in located an product area where the itself was not shelved. Poop v. BoemaN SeriNto Stores. Opinion by Blaok, J. knоwl- that it had no claims “Defendant jar mayon- presence of edge of the broken of the prior dressing the ap- floor on the or salad naise plaintiff’s alleged had accident, shortly dropped parently a customer before been alleged located in plaintiff’s the debris was fall as product and the not shelved where the an area appeared that defendant product smooth, fresh and its maintenance of care in the reasonable exercised negligent, and that premises the fendant claims failure to mayonnaise make proceeded through was, therefore, and negligent. De- plaintiff, Serinto, negligent in her jar presence broken of the see the dressing, her failure in or salad area as she proper floor or of the observations carelessly aisleway, stepping negligently the broken into dressing an area which or salad lighted protected customers.” application common-law law to of our case involving do such causes bar, as at causes rights have attracted commercial invitors of invitees purchase unfair when most has become sale, slickly injury smooth surface is the the scene distinguished supermarket un from the a modern grocery evenly stores floors of old-fashioned boarded burden-bearing shops. fea I think the and butcher prospective revised, law should be ture of suggested shortly ly in 1931 Cardozo as Justice and confirmed to nominated the Su he was before (address January preme 1932; Vol. Court report Bar Association, 262, of New York State 295-297):* * copied by into our record of Williams passage was the writer This City 231, 282, (1961), or later Detroit 283. Sooner necessity application of the and stark will force eventful realism both decisis, recently appeared generally stare much as has doctrine (1964), 381 jurisprudence. LinMetter v. Wallcer See criminal *8 States, ; 601) L v. United (85 14 Tehan 618 S Ct Ed 2d US 436), (86 406 15 L Ed 2d (1966), rel. 382 US S Ct ex Shott (86 16 Jersey Johnson Ct and S (1966), New 719 US
p Ed 882). 380 Mich by Black, others where retroactive “For such cases and my- any inexpedient, I find is reason declaration that courts more to the belief self should more driven and competent practice proposed follow the be to suggestive
by Wigmore ‘The in his little book Mr. espoused by others; Law’ Problems of аnd since they is apply that should the outworn rule to couple judgment then their with hand, apply' they feel another declaration rule to will free in consummated the future.” transactions arising (as pursue to causes I would The lead year, openly, hereafter) the su- last taken Jersey, preme Wollerman v. Grand of New court (221 (1966), 426, 429 A2d Inc. 47 NJ Stores, Union 513, 514, 515): (1) caused could have been hazard “Here the the beans were in which manner carelessness displayed; (2)
piled ployee of an em- carelessness (3) handling thereafter; or care- the beans (2), patron. (1) As to defendant lessness of its chargeable aware of it was whether is .or knowledge neglect. employee’s rele- is Defendant’s patron’s only, (3), there, as to but even vant since anticipated this self-service carelessness is be operation, without notice liable, even defendant is (4) presence if defendаnt the floor, of the bean’s commensurate failed' use reasonable measures debris with the risk discover involved might it it to remove before leave customer patron. injures another pre- hardly position is in a to know “The customer prob- cisely ability neglect. the fair which was the Overall duty its de- did than is defendant less respect At least one or another. manded, in permit probability an inference is sufficient to all that in the of evidencе that defendant did absence light prudent reasonably in the man would do just, injury operation the risk therefore, It entailed. place producing evidence tó ‘the onus of possessed party superior know!- who is *9 SeRINto v. BormaN Food Stores. CT^ Opinion by Black, J. explanation opportunity edge causa the Realty, Kahalili v. circumstances.’ tive Rosecliff (141 307); Bornstein Inc., 301, 606 A2d 595, NJ Bottling Metropolitan (1958) 26 263, 269 Co., NJ v. 408).” (139 A2d My vote to affirm is endorsement evidenced оpinion. Kelly’s of Justice signed (concurring). I Jus- BreNNAN,J. have may opinion. re- Kelly’s tice concurrence he This garded as dissent the concurrence of Justice Black. myself, regard prospective I the doctrine
For judicial usurpation of to he blatant overrulement legislative power. I of no where can think case “inexpedient” apply to the correct rule of law' it is case to the at hand. shifting proof idea of in
The
the burdеn
just
supermarket slip-and-fall
another nail
case is
jurisprudence.
It
in the coffin of commondaw tort
day
liability-
when
without fault
advance the
would
becomes
reality.
going
legislate
If courts are
to
compensation,
shoppers’
ought
mandatory
least
we
hearings
public
courtesy
hold
common
to
have the
to
reading.
passed
third
the measure
before
Judge
(dissenting).
Chief
J.
LesiNSki
Adams,
opinion
dissenting
v. Borman Food
Serinto
in his
analyzed
App
tоtal fact
has
Stores, 3 Mich
principle
controlling
this
situation
sufficiency
set
regarding
as
of evidence
law Luplow (1963),
Sparks
forth
opinion.
agree
I
with
.
benefit of Catherine
not have the
does
This Court
appearance
means
witness stand
on the
testimony.
judge
acci-
When
her
which
age.
years of,
Mrs. Sertino
occurred
dent
Might reasonable minds differ as to whether de- fendant Company Borman guilty Food Stores SeRINto v. BoRmaN Food Stores.
Dissenting Opinion by Adams, JV negligence seeing removing mayon- in tlie prior plaintiff’s naise from floor in view fall, testimony of Mrs. of she heard no sound breaking glass during the 45 or 50 minutes she in store, the cashier had a view of the spilled, aisle where the and that Mrs. Serinto observed in no customers the aisle? Might not reasonable infer minds that the failure part on the cashier to see the admittedly may which was there and have been long enough there to have been in the found exer- ordinary part cise care, or the failure on the of negli- boys patrol stock the aisles, constituted gence? negative only part in evidence this case is satisfy the total facts. Those facts—sufficient to judge light
the trial to were the in the most favorable —viewed plaintiffs, plaintiffs are as favorable to these Sparks,
facts fact more so, because (unlike falling the silent-—no when noise —banana Sparks), jars mayonnaise, product for sale (in Sparks not), the banana was were known to be emplоyees there and would make a *11 falling when noise a hard floor. It foresee- glass might merchandise, able containers, become broken. judgment Appeals of the Court of should be judgment
reversed and the the circuit court af- firmed. J.,
T. M.
concurred with Adams, J.
KavaNagh,
(dissenting).
I am
J.
constrained O’Hara,
agree
regard myself
with Mr.
I
as
Justice Adams.
authority
Sparks
Luplow
bound
his cited
(1963),
authority
372Mich
the additional
Lipsitz
(1
(1966),
v. Schechter
4th question of and that notiсe, no actual premises alleged condition of defective The same could have notice. limited to constructive been done here. had actual here contended that defendant
It notice. Lip- language disregard I cannot
However, p 689: sits, at have that the defendants would
“A could find the screen of a defective condition of had notice supervision.” reasonable if there had been proof. In the defendant offered no bar supervision any was no evidence of kind There pos- how was record. I do not see it Hence, super- a matter of whether determine, law, sible to was reasonable. vision
Consequently, I concur with Adams’ result. Justice