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09/24/68 Seganish Et Al., v. District of Columbia


September 24, 1968




Fahy, Senior Circuit Judge, and McGowan and Robinson, Circuit Judges.




This is another in the continuing procession through this court of cases originating in falls occasioned by slippery substances on the floors of grocery stores. *fn1 Our appellants, Mr. and Mrs. Seganish, entered appellee's supermarket, separated to facilitate their shopping, and while Mr. Seganish focused his attention on the meat counter, Mrs. Seganish made her way to the vegetable display. As she walked along the aisle beside the green vegetable counter, she suddenly slipped, fell to the floor and sustained injuries.

Appellants then sued for damages on the theory that appellee negligently failed to maintain the aisle in a safe condition. At the conclusion of the presentation of appellants' case in chief, the trial judge directed a verdict for appellee. This appeal thus enjoins our determination as to whether appellants' proofs were sufficient to warrant submission of the case to the jury, and to the evidence we now turn, considering it in the light most favorable to appellants. *fn2

Three witnesses *fn3 viewed a crushed string bean terminating a short skid mark *fn4 at the spot where Mrs. Seganish slipped and fell, and both appellants saw considerable vegetable debris on the floor nearby. "There was kale on the floor," said Mrs. Seganish, and "at least ten to fifteen other pieces of bean by the counter and a piece of lettuce and others." *fn5 Appellants also saw that the floor was wet at the point of the fall. Mr. Seganish testified elaborately about a puddle of water *fn6 "right in there where she fell." *fn7

The manager of the store, called by appellants as a witness, explained that each morning an employee sprinkled water on the vegetables there in order to maintain their freshness. This involved the use of a sprinkling can, and the process sometimes resulted in spillage. The manager admitted that "on any number of occasions" there was water on the floor by the counter *fn8 -- "very little," he avowed *fn9 -- and that it was eliminated by mopping "if it is necessary." This witness could not recall whether any inspection was made of the area on the date of the accident prior to Mrs. Seganish's fall.

Just how the vegetable matter and the water observed by appellants got on the floor, and whether appellee had knowledge of them, were not made the subjects of direct proof. *fn10 That, however, represented no departure from the line of "slip and fall" cases we have reviewed, for the claimants therein quite uniformly -- obviously from sheer necessity -- have relied upon circumstantial demonstrations. As in our past cases, which have reached divergent results because no two were ever just alike on their facts, the questions which are decisive here boil down not so much to matters of law as to inquiries into the capabilities of particular items of evidence. And the basic principles governing both the substantive and the evidentiary aspects of this appeal are but orthodox applications of well settled legal propositions.

A grocer is not an insurer of the condition of his store. *fn11 His duty is to exercise reasonable care to keep his place of business safe for the customer using it. *fn12 He is responsible, of course, for injuries resulting from risks created personally or by his employees. *fn13 Moreover, his obligation of due care extends to reasonable supervision and inspection of the premises to identify and protect against potential perils, however otherwise arising. *fn14 For this reason, liability may also spring from a negligent failure to safeguard against dangers born of the activities of his customers. *fn15 But negligence can be found in relation to a customer-created hazard only if it is known, or because of its duration it should have been discovered, in time to afford a fair opportunity to remove it. *fn16

To win the verdict, it was incumbent upon appellants to carry the burden of proving the essentials of actionable negligence. *fn17 To gain the jury's consideration, appellants' evidence had to be of such caliber that reasonable people might conclude that appellee had fallen short on its responsibilities. *fn18 It was for the jury, of course, to sift the evidence, weigh the proofs on both sides, and resolve the issues of fact. The jury's function also extended to drawing any and all inferences logically deducible from the evidence presented, and appellants, as parties against whom the verdict was directed, are entitled on this appeal to the benefit of such inferences. *fn19

Juries, on the other hand, cannot be permitted to speculate, *fn20 and in particular cases the line between legitimate deduction and conjecture may become thin indeed. *fn21 We hold, however, that appellants' evidence met the test, and was sufficient to require the trial court to submit to the jury, under proper instructions, the question whether negligence on appellee's part had been shown.

There was, according to appellants, quite a bit of vegetable matter near the vegetable counter, and we think that the element of accumulation bore witness to possible carelessness. We do not have here the mere presence on the floor of a single piece of vegetable debris for an undetermined period which might indicate neither that the grocer caused it to be there nor that he knew or should have known that it was there. *fn22 Here the presence of a considerable quantity of vegetable matter easily permits the inference that the condition was created, if not by the proprietor or his employees, by a number of customers, and that it was so long in the making that reasonable oversight of the premises would have detected it and prompted its riddance prior to Mrs. Seganish's fall. *fn23

Additionally, appellants' insistence upon the presence of the puddle of water in the same area, *fn24 when combined with the manager's testimony that the vegetables were sprinkled daily, *fn25 established the basis for a plausible inference that appellee's employee had spilled it there or that, in any event, owing to the size of the puddle, appellee should have discovered it in time to mop it away before Mrs. Seganish arrived on the scene. The manager's testimony that water was frequently seen on the floor in the vicinity of the vegetable counter logically suggested that appellee should have anticipated its recurrence there at the time of the injury. And the fact that the sole method of combating these periodic puddles was by mopping after their presence became known raised an issue as to whether this measure satisfied the standard of reasonable care under the circumstances. *fn26

We do not imply, by this recital and analysis of the evidence, that there was testimonial harmony, or that on the issue of appellee's negligence the jury could not have found either way. But since the trial court directed the verdict against appellants, we must give them the benefit of the most that the evidence could establish *fn27 and disregard inconsistencies which would not as a matter of law have precluded a verdict in their favor. All that we decide on this appeal is that the evidence, so viewed, entitled appellants to the jury's decision as to the facts under the court's instructions as to the law. This means, of course, that the judgment appealed from must be reversed, and the case remanded for a new trial.

So we conclude our review, but on a note of regret that the case must now be retried. We can see from the record that the trial judge studied appellee's motion for the directed verdict, gave careful attention to appellants' points in opposition, and ruled as he read our Brodsky decision *fn28 to require. But, as we have admonished, "if there is room for a difference of opinion, the wise course is for the trial judge to allow the case to go to the jury." *fn29 The judge is then free, should he later determine that the verdict must fall, to enter judgment notwithstanding the verdict, and our action on appeal could not necessitate another trial.

Perhaps there is more reason to observe this precaution where direction of a verdict is sought at the close of all of the evidence. Nonetheless, we have suggested that it should be taken where, as here, the effort is made when the claimant first rests. *fn30 Appellants' counsel requested the trial court to follow that procedure, but this the court did not see fit to do. As this case well illustrates, matters would have been all to the better if it had.

Reversed and remanded for a new trial.


Reversed and remanded for a new trial.

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