Iloff v. Purity Stores, Ltd.

VAN DYKE, P. J.

This is an appeal from a judgment entered upon a defense verdict in a personal injury action. Appellant sustained a fracture of her hip when she fell in a store operated by respondent Purity Stores, Ltd., and managed by respondent Flynn. There is no question as to the status of appellant at the time of the accident. She was an invitee to whom the respondent store owed the duty “to exercise ordinary care to keep the premises in a reasonably safe condition, or to warn ... of danger. The duty was not limited to conditions actually known ... to be dangerous, but extended also to conditions which might have been found dangerous by the exercise of reasonable care.”

(Raber

v.

[3]

Tumin,

36 Cal.2d 654, 658 [226 P.2d 574];

Pauly

v.

King,

44 Cal.2d 649, 653 [284 P.2d 487].)

Appellant testified that as she slipped and fell, she felt something slick under her heel. An eyewitness testified that the floor at the spot where appellant fell had an oily appearance, and that she had observed a similar condition on several prior occasions when she, herself, slipped and about which she made complaint to the employees of the store. This witness described the appellant’s fall by saying that her feet just shot out from under her and she came down.

We find it necessary to reverse the judgment appealed from by reason of an erroneous instruction given on request of defendants concerning assumption of risk, but before discussing that we note that at the beginning of the trial plaintiff sought to call Mr. Jack Flynn, a defendant and the managing agent of his codefendant, Purity Stores, Ltd., to the stand for examination under section 2055 of the Code of Civil Procedure. The following occurred: “The Court: Hold on now, you have got to make a prima facie case before you can put him on under 2055. He isn’t fit to put under the gun now.” Over the protest of counsel for appellant, this ruling of the court was adhered to and appellant was compelled to call other witnesses to establish a prima facie ease before being permitted to examine Mr. Flynn under 2055. The court abused its discretion when it refused to allow counsel for appellant to call Mr. Flynn when counsel desired to do so. There is no requirement that a prima facie case must be made out before an adverse party or an adverse party’s agent can be called under 2055.