Perez v. Ow

AGEE, J.

Plaintiff appeals from a judgment of nonsuit in a slip and fall ease. The sole question herein is whether the evidence, as viewed most favorably to plaintiff, is sufficient to support a judgment in her favor.

Defendants operate a market in San Jose. Adjacent thereto is a small paved parking lot accommodating about

[560]

three cars and maintained by the market for the use of its patrons.

On Sunday, April 27, 1958, about 2:30 o’clock p. m., plaintiff walked across the lot and into the market. After making several purchases she left over the same route. The day was described by her as being “very nice.” After taking six to eight steps across the lot, plaintiff slipped on a foreign substance, which was apparently chocolate ice cream, and fell. She did not see this substance either on her way into or out of the market. The area where the ice cream lay is viewable from the check stand in the market by looking through a glass door and window.

Plaintiff was a business invitee on the lot as well as in the market and defendants owed the duty of exercising ordinary care to avoid injury to her. Plaintiff does not contend that the mere happening of the accident raises any inference of negligence by defendants or that the doctrine of res ipsa loquitur is applicable. (See

Vaughn

v.

Montgomery Ward & Co.,

95 Cal.App.2d 553, 557 [213 P.2d 417];

Oldenburg

v.

Sears, Roebuck & Co.,

152 Cal.App.2d 733, 741 [314 P.2d 33].) Nor does she contend that defendants had any express knowledge that any ice cream had been dropped on the parking lot.

The issue in dispute may be generally stated to be whether there is sufficient evidence to support a finding that defendants had constructive notice of the condition complained of in time to have remedied it before the accident occurred.