Link v. Hutzler Bros.

Gilbert, J., delivered the opinion of the Court. Catherine L. Link, appellant, was severely injured when she fell in the Towson, Maryland, department store of the appellee, Hutzler Bros. Company. As a direct result of the fall the appellant sustained a fractured hip bone which was surgically pinned, and the bone was later removed.

Mrs. Link filed suit against Hutzler’s in the Superior Court of Baltimore City. There a jury was unable to agree, and the trial court subsequently entered a judgment n.o.v. in favor of the Hutzler Bros. Company. See Md. Rule 563.

Aggrieved by the action of the trial judge, Mrs. Link has appealed to this Court. The record reveals that Mrs. Link testified that on the morning of April 11, 1970 she had gone to Towson with her daughter, son-in-law and two grandchildren in order to shop at the appellee’s store. Mrs. Link observed the “shiny” condition of the vinyl floor covering. She said that she stepped onto an area that appeared to be more shiny than the rest of the floor, when her left foot suddenly slipped out from under her.

As she was spun around, so as to face the direction from which she had been traveling, she exclaimed to her daughter that she, Mrs. Link, was falling. Mrs. Link landed on her buttocks with a jolt, and the pain resulting ⁵⁸⁸ from the fall was so excruciating that she “passed out.” The appellant further testified that her coat flew out so that no part of it was under her when she landed on the floor. Her heel had plowed a furrow through a “swishy” substance like “lard” or “wax”, that had “crusted” on the surface of the area in which she fell. The appellant’s daughter, Mrs. Dorothy Warner, testified that she had observed the waxy substance and, further, that she noted, after the appellant had been removed to the hospital, that the same matter was on the shoe of her mother.

The daughter stated, “I knew it was wax.” The store nurse, while acknowledging that Mrs. Link had said she had slipped on wax, deposed that there was no wax on the floor. Similarly, the porter whose job it was to care for and maintain the third floor, where the accident happened, disclaimed the presence of wax on the floor. The porter said that the floors were “stripped” just after Christmas, 1969, and that two coats of wax were then applied. After that, a polymer floor finishing product known as “Buffable Supertred” was employed when needed.

The product is sprayed on the floor, after being diluted with water, by the same type of sprayer “used for windows.” When the mist dries, through evaporation, the floor is then dry-mopped to a sheen. The porter told the jury that he had not placed the “Buffable Supertred” upon the floor for at least three weeks preceding the fall, and he denied the use of wax at any time after its application in December, 1969. An expert witness produced on behalf of the appellee testified that he was employed by the S.C. Johnson and Son Company, the manufacturer of the “Buffable Supertred”, and that the product was developed by that company within the division that he supervised. The expert stated that “Supertred” consists of only 14% solids and the balance is water, that it evaporates much like lacquer, that it does not crust, and that there is “no skinning.” 1 The expert further ⁵⁸⁹ said that in order for “Supertred” to dry to a thickness of V* inch, an original puddle of a depth of FA inches would be required, thus clearly indicating that IV2 inches of the product would evaporate. “Supertred” was characterized, by the expert, as “a liquid plastic emulsion” with wax-like properties and an excellent rating with respect to slipping resistance.

The taking of testimony terminated on a Friday. The case was to go to the jury the following Monday. Prior to the submission to the jury of the factual dispute, however, the appellant’s counsel issued a subpoena duces tecum in which he sought to compel the appellee to produce records of all accidents for the year 1970 in Hutzler’s Towson store. The trial judge noted that the testimony concerning accident reports had been given by the nurse on the preceding Thursday.

The expert’s testimony concerning the slip resistence of “Supertred” was on Friday afternoon, but that the request for the subpoena duces tecum did not come until Monday morning. Our perusal of the record fails to reveal the actual subpoena duces tecum, and we are, therefore, without knowledge of its actual content. The trial judge, further, observed that the appellant did not avail herself of discovery, and that the information sought to be examined as a result of the subpoena duces tecum might have been obtainable through interrogatories or depositions. The record of the trial does not disclose a proffer by appellant as to wdiat the sought accident records might contain.

Lacking a proper proffer, the trial judge was placed in a position of having to determine whether to continue the case while appellant, who, as we have stated, did not avail herself of discovery proceedings, conducted a last minute exploration into the unknown. Not having the proposed subpoena duces tecum, to review, and being without a proffer that the accident records would show similar falls under like circumstances, we are unalde to say that the accident report records would or would not have been admissible evidence. Fowler v. Benton, 229 Md. 571 , 185 A. 2d 344 (1962); Leitch v. Anne Arundel County, 248 Md. 611 , 237 A. 2d 748 (1968). In any event we see no abuse of discretion by the trial judge in ⁵⁹⁰ declining, under the circumstances, to continue the trial while appellant availed herself of such belated discovery.

Appellant argues that the trial court should not have granted the appellee’s motion for a judgment non obstante veredicto. The trial judge, in a “Memorandum”, made clear that, notwithstanding “that the evidence and reasonable inferences to be taken from that evidence must be reviewed in the light most favorable to the [appellant]”, the evidence in the case “could not lead a fair minded and reasonable jury to conclude that the [appellee] was negligent.” We, however, have a different view. A customer of a department store is classified by the law as an invitee. Dickey v. Hochschild, Kohn & Co., 157 Md. 448 , 146 A. 282 (1929).

See also F. Harper & F. James, The Law of Torts § 27.12 (1956). A landowner or occupier owes to invitees a duty of reasonable care to see that the place is safe, but, he is not an insurer of the invitees’ safety. Honolulu Ltd. v. Cain, 244 Md. 590 , 224 A. 2d 433 (1966). The Court of Appeals has adopted the view of the Restatement (Second) of Torts § 343 2 (1965) which provides: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” Accord, Mondawmin Corporation v. Kres, 258 Md. 307 , 266 ⁵⁹¹ A. 2d 8 (1970); Honolulu Ltd. v. Cain, supra; Evans v. Hot Shoppes, Inc., 223 Md. 235 , 164 A. 2d 273 (1960); Glaze v. Benson, 205 Md. 26 , 106 A. 2d 124 (1954); Yaniger v. Calvert Building & Con.

Co., 183 Md. 285 , 37 A. 2d 263 (1944). An analysis of the slip-and-fall cases in Maryland reveals a preference for the flexibility of a case-by-case approach rather than the rigidity of a general rule. 3 In Isaac Benesch & Sons v. Ferkler, 153 Md. 680 , 139 A. 557 (1927), evidence that the plaintiff slipped and fell in the defendant’s store because defendant failed to allow sufficient time for the recently oiled floor to dry, was sufficient to sustain the jury’s finding of negligence. In Moore v. American Stores Co., 169 Md. 541 , 182 A. 436 (1936), the Court of Appeals, in a case where an invitee slipped on defendant’s “greasy” floor, held the defendant liable. The Court of Appeals in O’Neill & Company v. Crummitt, 172 Md. 53 , 190 A. 763 (1937) considered a case wherein Hazel Irene Crummitt had fallen on the O’Neill’s department store floor.

Mrs. Crummitt testified that she was a customer of O’Neill’s, and that she was injured when she stepped from an elevator. She said that the elevator had not been stopped at floor level. When she stepped down onto the linoleum covered floor, she slipped upon a “dirty, greasy substance” and fell, landing in the substance. O’Neill adduced the testimony of “several employees.” Each had ⁵⁹² viewed the linoleum and each testified that “no such substance was upon it, and that it was in its usual condition. . . .” The Court held that the weight and credibility of the conflicting testimony was for the jury.

The Court held, however, in Montgomery Ward & Co. v. Hairston, 196 Md. 595 , 78 A. 2d 190 (1951), in an action by a customer of Ward’s to recover for injuries sustained when plaintiff slipped and fell over foreign substances situate on steps of the store, that where the evidence failed to show defendant’s employees caused the substance to be placed there, or that the presence of such substance was known to defendant or its employees, or that such substance was allowed to remain on the steps for an appreciable length of time, the defendant could not be liable. A plaintiff was not allowed to recover from a department store which she entered almost immediately after it opened for business on a rainy day. The plaintiff sustained injuries from falling down several steps. The basis of her suit was that she saw, after she had fallen, water on the steps.

Rawls v. Hochschild, Kohn & Co., 207 Md. 113 , 113 A. 2d 405 , 62 A.L.R.2d 124 (1955). In Casey v. Roman Catholic Arch., 217 Md. 595 , 143 A. 2d 627 (1958), the plaintiff slipped and fell on the slippery, newly waxed floor of the defendant church. The Court of Appeals, citing Isaac Benesch & Sons v. Ferkler, supra, declared that the trial court correctly submitted the case to the jury, since it could not be said “that there was no evidence of negligence.” Later in Moulden v. Greenbelt, 239 Md. 229 , 210 A. 2d 724