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Mraz v. Jewel Tea Co.

FEBRUARY 26, 1970.




Appeal from the Circuit Court of Cook County; the Hon. HARRY H. PORTER, Judge, presiding. Affirmed.


This is a personal injury action where plaintiff, a customer in defendant's food store, slipped and fell on a lettuce leaf after leaving a checkout counter. Defendant appeals from a $25,000 jury verdict and judgment in favor of plaintiff.

On appeal "it is defendant's theory that its store was properly maintained in a manner not inherently dangerous; that the floor surfaces were swept and cleaned at regular intervals daily pursuant to management instruction; that the area provided for invitees to enter and depart from the store was well lighted and regularly cleaned and swept; that the vegetable matter, described as being the cause of the accident, in the area where the accident occurred could not be said to have come there as the exclusive result of actions or negligence attributable only to the defendant or its employees; that the defendant violated no legal duty owed to the plaintiff and was guilty of no negligent act charged in the complaint."

Plaintiff, a seventy-two-year-old woman at the time of trial, testified that on March 28, 1966, at about 1:00 p.m., she entered defendant's store at 1922 West 103rd Street in Chicago to make a purchase. She was familiar with the store, having been a customer there for some time, and the store was light and bright. She purchased three steaks and was carrying them and her purse when she passed through the checkout counter at the front end of the store. She was wearing an ordinary pair of casual shoes with low heels. After she had been checked out by a Mrs. Briggs, she took three or four steps from the checkout counter when she slipped and her foot went out from under her, and she fell in a sitting position. As she was there on the floor she noticed a crushed green vegetable leaf behind her and a dark skid mark on the floor. The leaf was a little bigger than a silver dollar, and she saw a small piece of vegetation on her shoe.

On cross-examination plaintiff testified that she did not see any green thing on the floor before she fell. As she left the checkout counter and was walking toward the door she was looking straight ahead, probably at eye level. She did not look at the floor because she was sure if she had seen anything green she could have walked around it, and she did not purchase any lettuce. The floor was in good condition, and she saw no other debris on the floor after she fell, only the lettuce leaf.

Raymond Pepping, called by plaintiff under section 60 of the Civil Practice Act, testified that he was manager of the store on the date in question, but was not in the store at the time of the occurrence. The employees in the store were under his management and direction. He described in detail the check-out routine. The first time that a customer actually comes in contact with the parcel or groceries is when the Jewel employees and personnel have finished ringing up the bill and have finished bagging it into the various bags. The point where the wrapping or parceling is done is at the point at which the customer is given the bag to take home or given his grocery cart to wheel out to his car. The store had a definite schedule for cleaning, sweeping and mopping. Employees are schooled and told to pick up anything from the floor immediately. In his years of experience he had not seen debris and articles or dirt and other matters lying in the area at the end of the cashier's checkout counter.

Pepping further testified as to the routine and handling of lettuce and other produce. The vegetable counters were located at the east wall, furthest toward the back of the store. Lettuce is brought in by produce boxes, 24 heads to the box. They are then put under refrigeration until such time they are needed and they are processed or trimmed. They are packed in the back room and then brought onto the sales floor for display. Each head of lettuce is individually wrapped in cellophane. The lettuce boxes are salvage and are never used to parcel groceries.

Sharon Vrbousky, called as a witness on behalf of plaintiff, testified that she was a checker at the store on March 28, 1966. Her duties consisted of checking out customers, checking the floors, sweeping the floors and checking customers' carts to be sure there was nothing left in the carts. There was a routine in the store of bringing empty boxes up to the front for use by the cashiers in packaging, and the type of boxes that were brought up included "lettuce boxes, anything from produce." Her instructions were that if she saw a piece of lettuce or anything on the floor, she was to pick it up. On March 28, 1966, she had occasion to sweep the checkout counters in the area in which the occurrence took place. She said, "I don't remember what hour of the morning it was that I swept the area in question. From reading my statement of April 5, 1966, it says I started to sweep the floor about 11:45. That was an approximate time. After I swept the floors I went to lunch. I was not present on the premises when the occurrence took place. I was upstairs having lunch." When she returned from her lunch period, she saw skid marks on the floor, and plaintiff had been taken from the store. On cross-examination she testified that she went to lunch anywhere from 11:00 to 2:00 p.m. She took an hour for lunch on the day in question. She had finished sweeping just before she went to lunch.

The testimony of other employees of the store shows the following: Edward Collins, an assistant manager, saw plaintiff in a sitting position in the aisle, with a piece of lettuce nearby and a skid mark approximately a foot. Emma Briggs, a cashier, testified that she had checked out plaintiff on the day in question. She did not see defendant fall but saw her after she fell in the area between the third and fourth registers. Patricia Weber, a checker and cashier, testified that the bagging was done next to the cash register for small packages but more usually done at the end of the counter where the packers stood in the area beyond the counter. Rosemary Scalzetti, an assistant service manager, testified that a customer told her a woman had fallen and was sitting in the middle of the floor. She went over and noticed a skid mark about six inches long and that a piece of lettuce was on plaintiff's shoe, a walking-type shoe. Also, John Berndl, a fireman called to the scene in an ambulance, testified that he saw plaintiff sitting on the floor with a skid mark of 13 inches nearby.

Defendant's witnesses included Raymond Pepping and Rosemary Scalzetti. Raymond Pepping testified that the only boxes used for packaging for customers were boxes in which dry groceries had been delivered. Rosemary Scalzetti testified that one of her duties was to see that the floor was clean between the service counters and the plate glass windows in the area where plaintiff fell. She saw a 50-pound size bag next to plaintiff. She saw a skid mark on the floor, and there may have been a little piece of vegetable green on the floor. The floor had been swept four to five times before the occurrence, the last time about five minutes before. All personnel were schooled and instructed to keep the floor clean.

Defendant's witnesses also included Margaret Burka, Emma Briggs, Patricia Weber and Edward Collins. Margaret Burka, a checker and stock girl, testified that one of the employees' duties was to keep the store clean and sweep "when it's necessary." Checkers were instructed to check the customer's cart to see that everything was out of the cart. That would include lettuce leaves. A wastebasket was provided at each counter for debris. On cross-examination she stated that she did not personally see anyone sweep that day. The debris that could be on the floor at the checkout counters could be paper or food or vegetable matter, and that was the type of debris the employees were instructed to clean up.

Emma Briggs, who checked out plaintiff in aisle 2, saw Sharon Vrbousky sweep the front end of the store fifteen minutes to a half hour before the plaintiff fell. She further stated that there were two purposes for checking the customers' carts: one, to see that all the purchases were out of the carts, and the other purpose was for cleanliness.

Patricia Weber saw Mrs. Vrbousky sweep fifteen or twenty minutes before plaintiff fell, and the floor where plaintiff fell was clean. On cross-examination she stated she did not see the vegetable matter on the floor but stated she did see the skid mark. She stated sweeping was done about 1:15, before Mrs. Vrbousky went to lunch. She further stated that a statement that was read to her as of April 11, 1966, was true and correct when she said she did not know if anyone swept the floor prior to the woman falling.

Edward Collins testified that when he observed plaintiff on the floor she was approximately right in the middle of the checkout area in the front end of the store, between the plate glass windows and the check-out counters. He saw a large bag of groceries next to her, which he described as about what was called a 50-pound bag. The floor was clean except for ...

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