No. 12329 

IN THE 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 : APR 2 - 1m 
Mr. Justice Gene Be Daly delivered the Opinion of the Court. 

This is a personal injury action tried to a jury in the 

district court of Yellowstone County. Judgment was entered on 

a jury verdict in favor of defendant Safeway Stores, Incorporated, 

From the final judgment and from the court's denial of her motion 

for a new trfal, plaintiff brings this appeal. 

On May 5, 1966, art approximately 4:00 p.m., plaintiff 

Ida Demaree entered defendant Safeway store premises located at 

2200 Grand Avenue, Billings, Montana, for the purpose of grocery 

shopping. Plaintiff alleges that while in the store she slipped 

and fell, injuring herself. Plairitiff introduced evidence that 

the injuries required hospitalization and caused pain and disability and she had undergone an operation in connectian with 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 is undisputed that there was water or moisture in some 

amount on the floor of the Safeway store in the area plaintiff 

alleges she fell, although there were no eyewitnesses to the fall. 

The testimony is in ctmflict 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 she walked down the aisle 

in front of the meat counter, pushing a grocery basket, she noticed 

in the aisle a 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 floor but 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 first noticed plaintiff 
standing and leaning on the meat counter holding her ankle or 

foot; that plaintiff informed him there was some water on the 

floor and she had slipped and twisted her leg; that he came 

from behind the counter to help plaintiff and to clean up the 

water but when he reached the area at the front of the counter 

she was gone; that there was another customer in the immediate 

area who made no indication that anything unusual had happened; 

and, that he then wiped up the water. He described it as being 

clear water, sized between six by 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 or wet produce left standing 

in shopping baskets by customers. 

After she slipped and fell, plaintiff testified she stood 

up feeling hazy and her leg hurt; that she heard someone behind the 

meat counter say h here is water on the floor, I better get the 

mop and wipe it up." Then, "some gentlemn came out from a little 

office place and helped me in and set me in a chair." She identified 

this person as Francis Coleman, the store manager, who she said 

asked her to write her name and address on a pad and then helped 

her to her 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 office working and plaintiff came in by herself and told him 

she had 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 fill out an accident report and asked if she wanted assistance in getting to her 

car. She declined assistance and went to her car unaided. Coleman 

further testified: That immediately after plaintiff's departure 

he talked to James Haney, the produce manager, and together they 

inspected all the cartons which had been wheeled through that area 

and found them all to be dry and burnable; that any wet cartons 
were 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 employees were admonished 

to keep a watch for any foreign matter 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 fifteen minutes to one-half hour before plaintiff complained 

of falling and saw no water on the floor. He stated that no frozen 

chicken boxes were ever taken from behind the meat counter and into 

the aisle. No accident report was 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 instructions Nos. 6, 7, 8, 9, 10, 11 and 14. 

~efendant's offered instruction No. 2, given as court's 

Instruction No. 6 and taken from Montana Jury Instruction Guide, 

Instruction No. 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 premises where the invitee under the 

circumstances and conditions of his invitation should 

reasonably be 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 condition reasonably safe for 

use by the invitee in every reasonable pursuit of any 

purpose included within 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 conditions would 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 reasonable warning of such danger. 
"But the responsibility of the owner of the 

premises is not absolute; it is not that of 

an insurer. The owner is not charged with 

knowledge of defects which reasonable inspection would not disclose; and the owner is entitled 

to assume that the invitee will see and observe that 

which would be obvious through reasonably expected 

use of an ordinary person's senses. There is no 

duty to give the invitee notice of an obvious danger. 

11 However, in the absence of appearances that caution 

him, or would caution a reasonably prudent person 

under like circumstances, the invitee has a right 

to assume, and to act upon the assumption that the 

premises he is invited to enter are reasonably safe 

for the purpose for which the invitation is extended." 

We find court's Instruction No. 6 to be a correct statement 

of the law as it relates to the duty owed by defendant to its invitees. Callahan v. Buttrey, 186 F,Supp. 715; Kerns v. F.W. Woolworth Co,, 138 Mont, 249, 356 P,2d 127; Regedahl v. Safeway Stores, 

Inc., 149 Mont. 229, 425 P. 2d 335. 

Additionally, when Instruction No. 6 is read with plaintiff's offered instruction No. 12, which was given as court's 

Instruction No. 7, the law is more than fairly stated on behalf 

of plaintiff. Court's Instruction No. 7 reads: 

"When a place of business such as a supermarket 

here involved, is open for business, one who enters 

it for the purpose of shopping does so at the implied, if not the express, invitation of the operator 

of the establishment, and is called the 'invitee', 

Upon the operator of such business establishment, 

the law places the duty of exercising ordinary care 

so as not 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 reasonable care for her own safety, 

and if you further find from a preponderance of the 

evidence that the Defendant failed to exercise reasonsustained by Plaintiff, then you must find yaur verdict 

in favor of the Plaintiff and against the Defendant." 

(Emphasis supplied) . The emphasized reference to the meat counter is a gratuity to 

which plaintiff was not entitled. It attempts to create a special 

standard in that area while 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 forth above. 

Plaintiff's proposed instruction No, 6 concerned 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 trial by 

plaintiff's counsel concerning defendant's not using "broom or 

sweeping charts" and failure to establish the use of such charts 

as an ordinary standard of care among retail storekeepers and in 

light of the evidence in this case, plaintiff's offered instruction 

No, 6 was not a correct statement of the law and amounts to a 

comment on the evidence, and as such cannot be permitted. Bjorndal 

v, Lane, 157 Mont, 543, 487 P.2d 527. 

Plaintiff's proposed instruction No. 7 stated that the 

nature of the public use of defendant's property created a duty 

of immediate action. plaintiff's proposed instruction No. 8 

stated that knowledge by the defendant of the existence of a 

hazardous condition could be proven circumstantially. Plaintiff's 

proposed instructions No, 9 and No. 10 were practically identical 

statements that the law imposes liability without regard to notice 

or time to correct when a hazardous condition results from conduct 

by defendant's agents or employees. These proposed instructians 

Nos. 7,8,9 and 10 have essentially the same defects,as applied to 

the factual determinations required to be made by the jury in the 

instant case. They contain assumptions of factual determinations 

which were reasonably in dispute under the evidence presented at 

trial. 

Any instruction which assumes as fact a matter legitimately in controversy, as shown by the evidence, is erroneous. 

Berne v. Stevens, 67 Mont, 254, 215 P. 803. 
Finally, the proposed instructions were misleading as 

to the standard of care imposed by law upon storekeepers toward 

business invitees and as to the elements of negligence and proximate cause which must be.established in order to find liability. 

In Rossberg v. Montgomery Ward & Co., 110 Mont. 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 should have 

known of its presence. * * * 

"* * * Likewise the plaintiff failed to show that 

the matter, whether it was 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 should have 

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 floor may 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 is not 

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. 1 I 

See also: Cassady v. City of Billings, 135 Mont. 390, 340 P.2d 

509; Matson v. Northern Hotel Inc., 152 Mont. 103, 446 P.2d 913; 

plaintiff's proposed instruction No. 11 states that the 

two subsequent intervening accidents should not 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 instruction was confusing and invades 

the province of the jury as to an issue of fact legitimately in 
contention. The second premise in the instruction appears to 

be an imposition of absolute liability. The reference to $100,000 

limitation of damages by reason of pleadings was covered in another instruction given by the court. 

Plaintiff's proposed instruction No. 14, similar to the 

court's Instruction No. 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 and we find no prejudicial 

error, The jury was well and fairly instructed. Some of plaintiff's offered instructions were misleading or erroneous statements of the law in this case. Others were merely repetitive of 

instructions given by 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 instruction which 

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 deeming himself disqualified 

did not take part in this Opinion,