Owen v. Beauchamp

66 Cal.App.2d 750 (1944) HARRY OWEN et al., Appellants,

v.

R. F. BEAUCHAMP, Respondent.

Civ. No. 14611. California Court of Appeals. Second Dist., Div. Two.

Nov. 10, 1944. John C. Miles and Lee J. Myers for Appellants.

Sidney A. Moss for Respondent.

MOORE, P. J.

The question for decision is whether the trial court correctly instructed the jury to find for defendant, a dentist, who allegedly had permitted dental wax to remain upon the floor of his office which was visited by appellant Elly [Owen] on November 9, 1942. On arriving there, plaintiff crossed the linoleum-covered floor in the reception hall and entered a carpeted room, a total distance of about 53 feet from the elevator. She then waited about an hour, during which time she observed that there was no foreign substance on her shoes. On being called for her treatment she walked across a portion of the same linoleum-covered floor for about 12 feet. At that point she stepped upon the wax, slipped and fell to her injury. Upon being removed to another room she found pink dental wax on the sole of her right shoe under the ball of the foot. It was proved at the trial that wax of the same quality as that [752] which adhered to appellant's shoe was used in respondent's laboratory and workrooms.

Appellant contends (1) that from the presence of the wax at the point where she fell it was a necessary inference that the dental wax belonged to respondent; (2) that from such inference the presumption arises that it was through appellee's negligence that it was there when contacted by appellant; (3) that it is a fair inference that had respondent exercised the care commensurate with his duty to the public the wax would not have been in a place where it could be trodden by his patients; (4) that it was therefore incumbent upon appellee to explain the presence of the wax on the floor in order to overcome the presumption of his negligence.

In making these contentions appellant overlooks certain established principles governing the rights and duties of those who maintain establishments to which the public are invited. [1] The invitor is obligated to exercise only ordinary care in keeping his premises in a safe condition. (Brown v. Holzwasser, Inc., 108 Cal.App. 483 [291 P. 661]; Corbett v. Spanos, 37 Cal.App. 200 [173 P. 769].) The owner of a place of business open to the public is not an insurer of the safety of his invitees. (Crawford v. Pacific States Savings & Loan Co., 22 Cal.App.2d 448 [71 P.2d 333].) [2] In order to establish the liability of the proprietor of a place of business to which the public are invited it is necessary that it be shown that the proprietor had knowledge of the presence of the dangerous condition of his premises (Crawford v. Pacific States Savings & Loan Co., supra; Williams v. Owl Drug Co., 10 Cal.App.2d 621 [52 P.2d 499]), or proof must be made that the condition had existed for such a period of time as to justify the inference that the proprietor had knowledge of its existence. (Gold v. Arizona Realty & Mtg. Co., 12 Cal.App.2d 676 [55 P.2d 1254]; Stoddard v. Roberts Public Markets, Inc., 27 Cal.App.2d 166 [80 P.2d 519]; Gabriel v. Bank of Italy, 204 Cal. 244 [267 P. 544].) In the Gold case it was held that since there was no showing that the substance which caused plaintiff's fall had been on the stairway any length of time or had been left there by defendant or his agent, a determination that its presence was due to the negligence of the defendant could be derived by conjecture only and for this reason plaintiff could not recover. In Spicknagle v. C. S. Woolworth & Co., 236 Pa. 496 [84 A. 909, Ann.Cas. 1914A 132], the plaintiff slipped and fell on an oiled floor. No specific