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McVaigh v. Sandberg

September 10, 1973

MCVAIGH, APPELLANT,
v.
SANDBERG ET AL, RESPONDENTS AND CROSS-APPELLANTS



Appeal from Circuit Court, Lane County. Douglas R. Spencer, Judge.

Stephen A. Hutchinson, Eugene, argued the cause for appellant. With him on the briefs were Hutchinson, Harrell & Cox, Eugene.

Paul D. Clayton, Eugene, argued the cause for respondents and cross-appellants. With him on the brief were Luvaas, Cobb, Richards & Fraser, Eugene.

In Banc. Holman, J. McAllister, J., dissenting.

Holman

Plaintiff brought an action for personal injuries resulting from a fall in defendants' pharmacy. Pursuant to a jury trial, a verdict was entered for plaintiff, but the trial judge set it aside and entered a judgment n.o.v. for defendants on the ground there was no evidence of defendants' negligence. Plaintiff appeals. The principal issue is whether there was evidence sufficient to submit to the jury of any condition of the premises which created an unreasonable risk of harm to plaintiff.

Plaintiff was a woman 65 years of age. She entered defendants' pharmacy on a rainy Tuesday morning and, after wiping her feet on a mat inside the doorway, proceeded to walk down one of the passageways

between displays of goods. When she was halfway down the aisle she fell.

The accident was alleged by plaintiff to have happened as follows:

"* * * That inside the store in an aisle near the pharmacy counter, in an area where customers normally walked, the defendants allowed water or other slippery material to accumulate upon the floor. As plaintiff stepped into the area, she was caused to fall by reason of the slippery condition of the floor and the water or other slippery substance that remained upon the floor, * * *."

She claimed defendants were negligent in the following particulars:

"1) In allowing water or other slippery material to accumulate on the floor * * *.

"2) In failing to remove the water or other slippery material from the floor * * *.

"3) In failing to warn customers * * * of the dangerous slippery condition of the floor * * *.

"4) In failing to properly inspect the floors * * *."

Plaintiff's testimony about her fall was as follows:

"Q. On the 1st of December, 1970, did you have occasion to go into Maynard's Pharmacy?

"A. Yes. I went in there quite often. They have a very nice selection of cards, but when I went in there and got halfway down the aisle, there were two racks with colored glasses on them, and I went to go around them and that's when my feet went out from under me and that's the last I remember.

"* * *.

"Q. Well, now you said your feet went out from under you, is that right?

"A. Yes.


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