Mondawmin Corporation v. Kres

Barnes, J., delivered the opinion of the Court. In this personal injury case it is contended by the appellant, Mondawmin Corporation, defendant below (Mondawmin), that the Superior Court of Baltimore City (Cole, J.) erred in declining to grant the defendant's motion for a directed verdict at the conclusion of the testimony and, later, its motion for a judgment n.o.v. in its favor, because (1) there was no legally sufficient evidence that the defendant was guilty of primary negligence and (2) the evidence established that the appellee, Mrs. Isabel B. Kres, the plaintiff below, was guilty of contributory negligence as a matter of law. It is further contended that the trial court erred in its rulings on the evidence, thereby prejudicing the defendant. In considering the granting or refusing of a motion for a directed verdict and a judgment n.o.v. by the lower court, we must assume the truth of all of the evidence in favor of Mrs. Kres, the party against whom the motion was directed as well as all inferences of fact reasonably and fairly deducible therefrom.

Smack v. Whitt, 249 Md. 532, 240 A. 2d 612 (1968) and prior Maryland cases ³¹¹ therein cited. With this rule in mind, the facts are as follows: Mrs. Kres, the plaintiff, at the time of the accident on December 9,1966, was 65 years of age and in good health. She was retired on Social Security. Her retirement income was supplemented by part-time work at the Franklin Simon store on the upper level in the Mondawmin Mall in Baltimore City, operated by Mondawmin.

On the day of the accident she was going to the shoemaker in the Mall prior to reporting for work. She was wearing shoes with leather soles and rubber cuban heels. She arrived about 8:50 A.M., ten minutes before she had to report for work. There were two ways to get to the lower level —an escalator and a circular staircase.

The escalator was not in use so she went to the spiral steps in the Mall in order to get to the lower level, where the shoemaker’s shop was located. The staircase, which started at the upper level, was circular, wound around over a pool in which there were water fountains, and ultimately ended at the lower level of the Mall. The pool, over which the circular stairway was constructed, is a large one in which there were rocks, plants and a number of water fountains arranged in order to spray water upwards in a manner pleasing to the eye, thus making the shopping area more attractive esthetically. Mrs. Kres, wearing her bifocal glasses which she had worn for a number of years, was in no hurry and walked at her usual gait.

She started down the circular stairway on the left side, holding the railing with her left hand and carrying her handbag and “tote” bag in her right hand. She observed other people descending the steps ahead of her. As she started down the steps, she did not observe anything wet on the steps. She proceeded down the steps and when she got to the second or third step from the bottom, almost directly over the middle of the circular pool, her heels slipped out from under her on “something slippery or wet.” At the time Mrs. Kres slipped she was holding on to the banister rail but she was thrown with such force that she “had to let go of ³¹² the banister.” As she lay on the landing at the bottom of the steps she turned her head to see what she fell on and saw that the steps were wet.

Her coat and her stockings were also wet. The fountain was operating and she remembered hearing the sound of water running. The fountain was “going on high” but she could not remember whether or not it was spraying. She saw that part of the stairway, about 12 inches toward the railing, was wet.

The steps were terrazzo, marbleized black and white in color. As a result of her fall, Mrs. Kres suffered a fracture of the hip. She underwent an operation to insert a pin in the fractured hip and another operation later to remove the pin. Thereafter, there was a long period of treatment and convalescence in a hospital and nursing home.

Mrs. Kres is permanently crippled. Mrs. Kres, the plaintiff, called Joseph Zalkind as her witness. He is an employee of A. S. Beck Company which operated a store at the Mondawmin Shopping Center when the accident occurred. Because of a transfer in his employment prior to the trial, Mr. Zalkind had become a permanent resident of California.

Portions of his deposition, taken by written questions propounded by the plaintiff and cross-questions propounded by the defendant, Mondawmin, were admitted into evidence. In his deposition, Mr. Zalkind testified that on December 9, 1966, the date of the accident, he was working as manager of the A. S. Beck Company in the Mondawmin Shopping Center. He did not see Mrs. Kres fall, but saw her lying on the bottom landing after she fell. Prior to the happening of the accident, he had observed the condition of the steps and landing on several occasions and saw that the steps or landing were wet.

On one or two occasions prior to December 9, 1966, he had spoken to Charles J. Pennypacker, the manager of the Mondawmin Shopping Center and an employee of Mondawmin, and had suggested to him that the ornamental spray should be lowered “to eliminate the steps getting wet.” Ronald James Shaver, an employee of the Franklin ³¹³ Simon Company, testified for the plaintiff. He had greeted Mrs. Kres outside the building prior to her fall and had observed that she was carrying a pocketbook and a bowling shoe-type bag. Shortly after this, he was called from his place of employment to where Mrs. Kres was lying at the bottom of the circular staircase. Three; or four persons had gathered around her, one of whom was a security guard employed by the Mondawmin Shopping Center.

He observed that the steps were wet and that there were fountain nozzles on either side of the landing step. On prior occasions he had observed “the splashing of the water as it splashed up on to. . .the pavement of the landing.” He had “stood there and seen the steps get wet * * * From the splashing of the water in the pool.” The splashing was caused by a “nozzle effect that gives a spray.” On prior occasions, he had seen water come out of a pipe, hit the pool and splash on the steps. He stated that there were various heights to the fountains located in the pool. He had seen the steps and landing wet.

James R. Edmonds, III, a registered architect also testified for the plaintiff. He testified that he had examined the whole flight of circular stairs as well as the ramp leading from the balcony to the main floor level. He stated that the curved stairway from the balcony to the floor met all architectural standards in design and construction, and that the nature of the steps themselves was appropriate for indoor use. He stated, however, that the position of the spray nozzles of the fountains in the pool “could certainly have caused a wetting of the area in question.” He also stated that the effect of water on the surface of the steps would make them slippery.

He said in regard to the character of footwear, that going barefoot would be the least slippery, “leather would be the next less slippery” and “rubber would be the most slippery * * *.” He testified that in his opinion “it is unwise and unsafe to allow water to remain in any quantity on these steps except for the purpose of cleaning them, after which it is immediately removed.” Harry Bart, president of Mondawmin, was called by the ³¹⁴ plaintiff and testified that the stairway was erected in 1955 and that the fountains were put in during 1963. He stated that no changes had been made up to the time of trial. He also stated that Mondawmin had no prior notice from any source that any person had fallen or was injured at the site in question. However, Meyer Ohen, a legal assistant of the Workmen’s Compensation Commission, under subpoena brought in records of the Commission indicating that on June 22, 1964, Ethel Levin, an employee of the Franklin Simon Company, was injured while walking on the circular staircase in the Mondawmin Mall.

The records disclosed that in describing how the accident occurred, Mrs. Levin stated “I was walking down steps when I slipped on the wet step and hurt my back and leg.” Wesley Tarr, a professional surveyor’ produced as a witness for Mondawmin, testified that the depth of the water in the pool was 10 inches and that the top of the pipes was 20% inches from the bottom of the pool. Hence, the walkway or landing was 3% inches above the water in the pool and 7 inches below the top of the pipes. He also stated that when he inspected the stairway on one occasion, all but one of the fountains were in operation and that the inoperative one was the fountain near the circular stair. 1. In our opinion, the trial court ruled correctly that there was sufficient evidence in the case of Mondawmin’s primary negligence to go to the jury; and the lower court properly refused to grant Mondawmin’s motion for a directed verdict and motion for judgment n.o.v. Judge McWilliams, for the Court, in Metropolitan Auto Sales Corp. v. Koneski, 252 Md. 145, 155 , 249 A. 2d 141, 147 (1969) aptly stated: “Appellant [Metropolitan] contends the trial court erred in denying its motion for a directed verdict.

In our consideration of this contention we must assume the truth of all evidence tend ³¹⁵ ing to sustain the Koneskis, against whom the motion was directed, as well as all inferences of fact reasonably and fairly deducible therefrom. Smack v. Whitt, 249 Md. 532, 536 , 240 A. 2d 612 (1968); Wood v. Johnson, 242 Md. 446 , 219 A. 2d 231 (1966). If there is any relevant and competent evidence from which a rational mind could infer a fact in issue, then a directed verdict should not be granted. Plitt v. Greenberg, 242 Md. 359 , 219 A. 2d 237 (1966).” Mrs. Kres’ status as a business visitor or invitee to the premises in question is not challenged.

Mondawmin was under a duty, as owner of the premises, to exercise reasonable care to maintain the premises in such a condition that Mrs. Kres, as a business invitee, “would not be subjected to any risk or danger arising from the physical state of its property, except such as was naturally and ordinarily incident to the nature of its business.” Moore v. American Stores Co., 169 Md. 541, 546 , 182 A. 436, 438 (1936). See also O’Neill & Co. v. Crummitt, 172 Md. 53, 60 , 190 A. 763, 766 (1937). In discussing the duties of the occupant of premises to which a business visitor is invited, we stated in Honolulu Limited v. Cain, 244 Md. 590, 595-96 , 224 A. 2d 433, 435-36 (1966) : “The duty of an occupant of land toward his business ‘invitee’ rested, in its inception, upon an implied representation of safety, ‘a holding out of the premises as suitable for the purpose for which the visitor came * * *’, Prosser, Business Visitors and Invitees, Selected Topics of the Law of Torts 243, 261 (1953). The word ‘invitee’ itself, conveys the idea that the place is held out to the visitor as prepared for his reception.

The occupant does not, of course, become an insurer of the safety of those who accept his invitation. But when the public is led to believe that premises have been offered for its ³¹⁶ entry, the law is clear that the occupant assumes a duty of reasonable care to see that the place is safe for the purpose. The duty extends to those who are injured when they enter in response to the invitation. “It is plain to us that there was sufficient evidence to permit a jury to find that the defendant had breached its duty of reasonable care in the instant case. Indeed, there are at least two separate grounds upon which to base this finding. “The Restatement of the Law of Torts, Second, sec. 343, sets forth the standards governing the relationship of landowner and business invitee with respect to a hazardous condition.

The landowner is subject to liability for harm caused by a natural or artificial condition on his land if (a) he knows or by the exercise of reasonable care could discover the condition, (b) he should expect that invitees will not discover the danger, or will fail to protect themselves against it, (c) he invites entry upon the land without (1) making the condition safe, or (2) giving a warning. These principles have been approved many times by this Court. Yaniger v. Calvert Bldg. & Const. Co., 183 Md. 285, 289 , 37 A. 2d 263, 265 (1944) ; Evans v. Hot Shoppes, Inc., 223 Md. 235, 239 , 164 A. 2d 273, 276 (1960) ; Morrison v. Suburban Trust Co., 213 Md. 64 , 130 A. 2d 915 (1957) ; Glaze v. Benson, 205 Md. 26 , 106 A. 2d 124 (1954). “Although in certain circumstances, the design or construction of the premises themselves may present an unreasonable danger to a business invitee, Rose v. Melody Lane of Wilshire, 39 Cal. 2d 481 , 247 P. 2d 335 (1952) ; Magnolia Petroleum Co. v. Barnes, 198 Okla. 406 , 179 P. 2d 132 (1946); DeWeese v. J. C. Penney Co., 5 Utah 2d 116, 297 P. 2d 898 , 65 A.L.R.2d 399 (1956), we do not find it necessary to pass upon ³¹⁷ the issue of whether the defendant could be held negligent in allowing the flow of water from one end of the lot to the other.” We first address ourselves to a consideration of whether or not there was evidence in the case and reasonable inferences from that evidence upon which a jury could find that Mondawmin knew, or could have, by reasonable care, discovered the condition which caused the injury to Mrs. Kres.

In our opinion, there was such sufficient evidence. Mr. Bart, President of Mondawmin, testified that since the fountain was built in 1963, there had been no changes made to it up to the time of trial in 1970, so that the condition of the fountain at the time of trial was the same as it was when erected in 1963. Mr. Edmonds, the architect, after examining the nozzles in the fountain near the stairs, stated that, in his opinion, “the position of the spray nozzles of the fountains in the pool under the runway could certainly have caused a wetting of the area in question.” He also testified that the effect of water on the surface of the steps would make them slippery and further, that they would be most slippery to a rubber heel. He stated that he thought it to be “unwise and unsafe to allow water to remain in any quantity on these steps except for the purpose of