No. 12329 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

IDA DEMAREE, Plaintiff and Appellant,

SAFEWAY STORES, INC., A Maryland Corporation, Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Sandall, Moses and Cavan, Billings, Montana John J. Cavan argued, Billings, Montana For Respondent : Moulton, Bellingham, Longo and Mather, Billings,

Montana B. E. Longo argued, Billings, Montana

Submitted: February 28, 1973 Decided:

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# -1mMr. Justice Gene BeDaly delivered the Opinion of the Court.

This isa personal injury action tried to a jury in the district court of Yellowstone County. Judgment was entered on

a jury verdict infavor of defendant Safeway Stores, Incorporated, From the finaljudgment and from the court's denial of her motion for a new trfal, plaintiff brings this appeal. On May 5, 1966, art approximately 4:00p.m., plaintiff Ida Demaree entered defendant Safeway storepremises located at 2200 Grand Avenue, Billings, Montana, for the purpose of grocery shopping. Plaintiff alleges that while in the store she slipped and fell, injuringherself. Plairitiff introduced evidence that the injuries required hospitalization and caused pain and disabilityand shehad undergone an operation inconnectianwith those injuries in San Diego, California, in 1971. It was also shown that plaintiff had been involved in two subsequent automobile accidents in 1966 and 1969, It isundisputed that therewas water or moisture in some amount on the floor of the Safeway store inthe area plaintiff alleges she fell, although there were no eyewitnesses to the fall. The testimony is inctmflict concerning the origin of the moisture

on the floor, but there was no direct evidence on this point and the exact cause was unknown. Plaintiff testified: That as shewalked down the aisle in front of the meat counter, pushing a grocerybasket, she noticed in the aislea cart loaded with boxes that resembled frozen chicken boxes; that as she approached a boy moved the cart and she slipped and fell in the approximate vicinity of the cart's former position; that the back of her dress and her hand got wet when she fell; and, that she saw a puddle of water on the floorbut could not remember its size. Mr. LeRoy Swartz, a meat cutter employed by Safeway, was behind the meat counter approximately fifteen feet away but did not hear or see the fall. He testified: He firstnoticed plaintiffstanding and leaning on the meat counter holding her ankle or foot; that plaintiff informed him therewas some water on the floor and she had slipped and twisted her leg; that he came from behind the counter tohelp plaintiff and to clean up the water but when he reached the area atthe front of the counter shewas gone; that therewas another customer in the immediate

areawho made no indication that anythingunusual had happened; and, thathe then wiped up thewater. He described it asbeing clearwater, sizedbetween sixby fifteen inches and a foot by

a foot and a half, not spreading, and containing a dry tire track running through it,but with no other noticeable marks resembling

a skid. He also testified that occasionally spillages occurred

as a result of broken merchandise orwet produce left standing in shopping baskets by customers. After she slipped and fell, plaintiff testified she stood up feelinghazy and her leg hurt; that she heard someone behind the meat counter say 

### h here iswater on the floor, I better get the mop and wipe itup." Then, "some gentlemn came out from a little officeplace and helped me inand set me 

### in a chair." She identified thisperson asFrancis Coleman, the storemanager, who she said asked her towrite her name and address on a pad and then helped her toher car, which she drove home, She was later taken to the hospital emergency room by her husband. Store manager Francis Coleman testified: That he was in his officeworking and plaintiff came inby herself and toldhim shehad fallen and hurt herself; that he excused himself, went to check the floor in front of the meat counter and found that the water had been wiped up; that he had plaintiff fillout an accident report and asked if shewanted assistanceingetting toher

car. She declined assistance and went toher car unaided. Coleman further testified: That immediately after plaintiff's departure he talked to James Haney, the produce manager, and together they inspected allthecartonswhich had been wheeled through that area and found them alltobe dry and burnable; that any wet cartonswere left in the garbage collection area rather than taken across in front of the meat counter to the incinerator, located on the other side of the store; that all store employeeswere admonished to keep a watch for any foreignmatter onc the floors and, as manager, he walked around the store approximately forty or fifty times a day making inspections;that he had been in the meat counter vicinity fifteenminutes to one-half hour before plaintiff complained of falling and sawno water on the floor. He stated that no frozen chickenboxes were ever taken frombehind the meat counter and into the aisle. No accident reportwas produced at trial by defendant. Plaintiff presents eight issues for review on appeal, all of which are related to jury instructions. The first issue

concerns the trial court's giving defendant's offered instruction No. 2. The remaining seven issues concern the trial court's denial of plaintiff's offered instructionsNos. 6,

### 7, 8, 9, 10, 11 and 

### 14. ~efendant'soffered instructionNo. 2, given as court's InstructionNo. 6 and taken from Montana Jury InstructionGuide, InstructionNo. 120.04, reads: "One who enters or goes upon the premises of another as a business visitor, at the express or implied invitation of the owner, and in connection with the business of the owner, is called in law an invitee, 

### he invitation to enter extends not only to all parts of the premises which the invitee or business visitor is expressly invited to use,but also to all parts of the premiseswhere the invitee under the circumstances and conditions of his invitation should reasonablybe expected to go. "The owner of a place of business who has extended an invitation, express or implied, owes to all invitees who come upon the premises the legal duty to exercise ordinary care under the circumstances to keep the premises in a conditionreasonably safe for use by the invitee in every reasonablepursuit of any purpose includedwithin the invitation. 

### "If there is danger attending the invitee's use of the premises and such danger arises from conditions not readily apparent to the senses of the ordinary person, and if the owner has actual knowledge of such conditions,or if such conditionswould have been known to an owner in the exercise of ordinary care under the circumstances, the law then impoSes upon the owner the duty to give the invitee reasonablewarning of such danger."But the responsibility of the owner of the premises isnot absolute; it is not that of an insurer. The owner isnot chargedwith knowledge of defectswhich reasonable inspectionwould not disclose;and the owner is entitled to assume that the inviteewill see and observe that which would be obvious through reasonably expected use of an ordinaryperson's senses. There isno duty to give the inviteenotice of an obvious danger.

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However, in the absence of appearances that caution him, or would cautiona reasonablyprudent person under like circumstances,the inviteehas a right to assume, and to act upon the assumption that the premises he is invited to enter are reasonably safe for the purpose forwhich the invitation is extended." We find court's InstructionNo. 

### 6 to be a correct statement of the law as it relates to the duty owed by defendant to its invitees. Callahanv. Buttrey, 186 F,Supp. 715;Kerns v. F.W. Woolworth Co,, 138Mont, 249, 356 P,2d 127;Regedahlv. Safeway Stores, Inc., 149Mont. 229, 425 

### P.2d 335. Additionally,when InstructionNo. 6 is read with plaintiff's offered instructionNo. 12,whichwas given as court's InstructionNo. 7, the law ismore than fairly stated onbehalf ofplaintiff. Court's InstructionNo. 7 reads: "When 

### a place of business such as a supermarket here involved, is open forbusiness, onewho enters it for the purpose of shopping does so at the implied, ifnot the express, invitation of the operator of the establishment, and is called the 'invitee', Upon the operator of suchbusiness establishment, the law places the duty of exercising ordinary care so asnot unnecessarily to expose the invitee to danger or accident, and, to that end, to keep in a reasonably safe condition the general business premises made available for the invitee s use, and which the latter is expressly or impliedly invited to use. You are further instructed that the Plaintiff,while in the stare here involved,was an invitee of the Defendant, as above defined, and if you find from the preponderance of the evidence that while in said store the Plaintiff exercised reasonablecare forher 

### own safety, and ifyou further find from

### a preponderance of the evidence that the Defendant failed to exercise reasonsustainedby Plaintiff, thenyoumust find yaurverdict in favor of the Plaintiff and against the Defendant." (Emphasis supplied)

# . The emphasizedreference to the meat counter is a gratuity to which plaintiff was not entitled. It attempts to create a special standard in that areawhile commenting on the evidence.The seven instructions offered by plaintiff and refused by the court in all instances are to a degree repetitive and attempt to establish a higher degree of care and a presumption of active negligence and/ar strict liability, or a duty similar to the doctrine of res ipsa laquitur on the operators of supermarkets,

as opposed to the duty of care for all other commercial establishments and their licensees as set forthabove. Plaintiff's proposed instructionNo, 6concerned a failure of defendant to make reasonable inspection of the floor,particularly in front of the meat counter, as constituting negligence, In light of the cross-examination conducted at trialby plaintiff's counsel concerningdefendant's not using "broom or sweeping charts" and failure to establish the use of such charts

as an ordinary standard of care among retail storekeepersand in light of the evidence in this case,plaintiff's offered instruction No, 

### 6was not a correct statement of the law and amounts to a comment on the evidence,and as such cannot be permitted. Bjorndal
v, Lane, 157Mont, 543, 487 P.2d 527. Plaintiff's proposed instructionNo. 7 stated that the nature of the public use of defendant's property created a duty of immediate action. plaintiff's proposed instructionNo. 8 stated that knowledgeby the defendant of the existence of a hazardous condition could be proven circumstantially. Plaintiff's proposed instructions No, 9 and No. 10were practically identical statements that the law imposes liabilitywithout regard to notice

or time to correctwhen a hazardous condition results from conduct by defendant's agents or employees. These proposed instructians Nos. 7,8,9 and 10have essentially the same defects,as applied to the factual determinationsrequired to be made by the jury in the instant case. They containassumptions of factual determinations which were reasonably in dispute under the evidence presented at trial. Any instructionwhich assumes as fact a matter legitimately in controversy, as shownby the evidence, is erroneous. Berne v. Stevens, 67Mont, 254, 215 

### P. 803.Finally, the proposed instructionswere misleading as to the standard of care imposed by lawupon storekeepers toward business invitees and as to the elements of negligence and proximate causewhich must be.establishedin order to find liability. InRossberg v. Montgomery Ward & Co., 110Mont. 154, 169, 99 P. 2d 979, this Court stated: "From the clear evidence heretofore outlined and well-settled law, it is clear that the plaintiff, in order to prove negligence on the part of the defendants,must show that the defendants placed the oil or foreign substance on the floor, or had knowledge of its being there, or that it was on the floor such a length of time that defendants shouldhave known of its presence. 

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# * Likewise the plaintiff failed to show that the matter, whether itwas oil or gasoline,was placed there by the defendants, or that they had any notice whatever of its presence prior to the time she stepped on it, or that it had been on the floor for such a length of time that defendants shouldhave known of its presence, This lack of proof is fatal to her case, The defendants offered positive testimony that an inspection of the floor is made as a matter of course during themrning of each day, and that a constant lookout is kept throughout the day by all clerks in order that the floormay be kept free of foreign substance. This positive testimony stands uncontradicted. "In the case of Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063. 1067. this court stated: 

### he owner isnot an insure; of the safety of his customers. He is bound only to use reasonable care to keep his premises in such a condition that those invited there by him may not be unnecessarily exposed to danger.

## ' It is clear from the evidence that plaintiff failed to show that defendants did not exercise all required precaution. 1I See also: Cassady v. City of Billings, 135 Mont. 390, 340 P.2d 509;Matson v. Northern Hotel Inc., 152Mont. 103, 446 P.2d 913;

plaintiff's proposed instructionNo. 

### 11 states that the two subsequent intervening accidents shouldnot be considered in awarding damages, and secondly, that if the plaintiff suffered injuries in a fall on defendant's premises, she is entitled,regardless of subsequent intervening injuries, to recover damages not to exceed $100,000. The reference to intervening or subsequent injuries contained in this instructionwas confusing and invades the province of the jury as to an issue of fact legitimately incontention. The secondpremise in the instruction appears to be an imposition of absolute liability. The reference to $100,000 limitation of damages by reason of pleadingswas covered in another instructiongivenby the court. Plaintiff's proposed instructionNo. 14, similar to the court's InstructionNo. 8,states that the use of weak evidence

or lack of denial can give rise to an inference against a party. We have examined the entire record and the fifteen instructions actually given at trial andwe find no prejudicial error, The jurywas well and fairly instructed. Some of plaintiff's offered instructions were misleading or erroneous statements of the law in this case. Otherswere merely repetitive of instructions givenby the trial court. The trial court, in jury instructions,is required to give the relevant law favoring both sides. It is not required to give repetitive jury instructions, Where two analogous instructions are offered the court may, in the exercise of its sound discretion,give the instructionwhich makes the fairest and best statement of the law to the average juryman

# . The judgment of the district court is affirmed.

Chief Justice



# / ~skociate Justices. I

Gust ice Frank I. Haswell deeminghimself disqualified did not take part in this Opinion,