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Eck v. Market Basket

February 1, 1973

ECK, RESPONDENT,
v.
MARKET BASKET ET AL, APPELLANTS



Appeal from Circuit Court, Klamath County. Donald A. W. Piper, Judge.

J. Anthony Giacomini, Klamath Falls, argued the cause for appellant Harry R. Waggoner. With him on the brief was Stanley C. Jones, Jr., Klamath Falls.

Mel Kosta, Klamath Falls, argued the cause for appellants Market Basket, Norman J. Duffy dba Market Basket. With him on the brief were Kosta and Brant, P.C., Klamath Falls.

Robert S. Hamilton, Klamath Falls, argued the cause for respondent. With him on the briefs were Beddoe and Hamilton, Klamath Falls.

In Banc. Tongue, J.

Tongue

This is an action for personal injuries sustained by plaintiff when she fell upon leaving the exit door of a grocery store. The store was owned by defendant Waggoner and leased to defendant Duffy, dba "Market Basket." The jury returned a verdict for plaintiff. Both defendants appeal from the resulting judgment. We affirm.

1. The evidence was sufficient to support the verdict.

The first assignment of error by both defendants is that the trial court erred in denying their motions for involuntary nonsuits and directed verdicts upon the ground that there was a failure of proof that plaintiff either fell in the area she alleged to be defective or that the fall was caused by the defective area and that the evidence established that plaintiff was contributorily negligent as a matter of law.

The grocery store had separate entrance and exit doors, about six feet apart, each with handrails and rubber matting extending about four feet outside the store and ending on a concrete sidewalk along the front of the store. When the store was built indoor-outdoor carpeting was installed on the sidewalk. That carpeting became worn and hazardous and was removed by the owner of the store some three days before the accident. Upon its removal it was discovered that the concrete surface of the sidewalk underneath the carpeting had "flaked." After clearing away the loose bits of concrete, a "ridge" of some three-fourths of an inch was exposed and was located between the end of the rubber mat at the exit door and the curb edge of the sidewalk, about three feet away. This was the condition existing at the time of plaintiff's fall.

Upon removal of the carpeting a sign was placed between the two doors on the outside of the store with the following words in large letters: "Please Watch Your Step." Plaintiff and her son testified that this sign was not present at the time of her fall. All witnesses agreed, however, that there was no warning sign inside the store near the exit door to warn customers upon leaving the store.

Plaintiff testified that although she had previously visited the store, she had not done so within the previous three or four weeks. Plaintiff admitted that when she entered the store she observed the rough surface outside the entrance door, on the "right hand side going in * * * as if somebody had been working." There was no direct testimony that she observed this rough surface outside the exit door, either upon entering or leaving the store. She also testified that upon leaving the store and upon stepping off the rubber mat, her heel hit a "rough spot" or "rise" in the concrete, causing her to fall.

Plaintiff also testified, over objection, that the assistant manager of the store then came to her and said, "They told Waggoner not to leave that this way, somebody would get hurt." That employee had previously testified, when called as a witness by plaintiff, over objection by defendant Waggoner only, that probably he said "something to the effect that the sidewalk was a little rough there, and that it needed fixing." Defendant Duffy then offered in evidence a signed statement by the same witness, which, among other things, stated that "Bob Waggoner was supposed to repair this area." Although that portion of the statement was also objected to by defendant Waggoner, both defendants Duffy and Waggoner testified to the same effect.

Based upon this testimony, and despite some testimony to the contrary, we hold that there was sufficient evidence to support the finding by the jury that plaintiff fell in the area alleged in the complaint; that her fall was caused by the defective area and that she was not contributorily negligent as a matter of law. See Dawson v. Payless for Drugs, 248 Or 334, 337-39, 433 P2d 1019 (1967); Scott v. Mercer Steel/Edwards Realty, 263 Or 464, 503 P2d 1242 (1972); Stocking v. Sunset Square, Inc., 264 Or 151, 504 P2d 100 (1972). See also 2 Restatement 215-16, Torts 2d ยง 343.

Defendants contend that Dawson is "clearly distinguishable" upon the ground that "[t]he holding in Dawson applies only in those cases where the condition of premises is unreasonably dangerous and where the possessor of the premises has reason to expect that the invitee will nevertheless suffer physical harm despite his knowledge of the condition." We are unable to distinguish Dawson on that basis and believe that there was sufficient evidence from which the jury could properly find in this case that ...


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