{ "id": 5331591, "name": "Thomas J. O'NEIL, Plaintiff-Appellant, v. FURR'S, INC., and Bellas Hess Super Stores, Inc., Defendants-Appellees", "name_abbreviation": "O'Neil v. Furr's, Inc.", "decision_date": "1971-06-18", "docket_number": "No. 564", "first_page": "793", "last_page": "796", "citations": [ { "type": "official", "cite": "82 N.M. 793" }, { "type": "parallel", "cite": "487 P.2d 495" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "80 N.M. 102", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353453 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0102-01" ] }, { "cite": "81 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360309 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0648-01" ] }, { "cite": "76 N.M. 396", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502593 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0396-01" ] }, { "cite": "80 N.M. 591", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360273 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/80/0591-01" ] }, { "cite": "82 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5329774 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/82/0517-01" ] } ], "analysis": { "cardinality": 439, "char_count": 7658, "ocr_confidence": 0.69, "pagerank": { "raw": 9.47725997247976e-08, "percentile": 0.517882509752499 }, "sha256": "021ba1febf60b24f16b5a9db560334dfbebef9a8b211223765af300dfec46685", "simhash": "1:128ce537005ef2fc", "word_count": 1288 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and WOOD, J., concur.." ], "parties": [ "Thomas J. O\u2019NEIL, Plaintiff-Appellant, v. FURR\u2019S, INC., and Bellas Hess Super Stores, Inc., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nPlaintiff, O\u2019Neil, a salesman, sold bakery products to defendant, Furr\u2019s Inc. It was plaintiff\u2019s obligation to keep the assigned shelf space in defendant\u2019s grocery store replenished. Because there was no guarantee that plaintiff would be able to make delivery on short notice, it was to his advantage to keep a \u201cbackup\u201d supply of bakery products at the store in addition to those on the display shelf. Defendant\u2019s manager directed plaintiff to keep this \u201cbackup\u201d supply on top of a walk-in cooler which was eight feet high. Other bakery salesmen also kept their \u201cbackup\u201d supplies on top of the cooler. One day when plaintiff was on top of the cooler he slipped on some peas, fell and was injured.\nDefendants\u2019 motion for summary judgment was denied. The case was tried to a jury. Motions for a directed verdict on the theory of contributory negligence and assumption of risk at the end of plaintiff\u2019s \u25a0case and at the close of all the evidence were denied. However, the jury was unable to arrive at a verdict and was discharged. Thereafter, defendants again made a motion for a directed verdict pursuant to \u00a7 21-1-1(50) N.M.S.A.1953 (Repl. Vol.1970). The court granted the motion ruling that defendants were not negligent and that plaintiff was guilty of contributory negligence and assumption of risk.\nOn appeal plaintiff asserts that there were questions of fact on the issue of defendants\u2019 negligence and plaintiff\u2019s contributory negligence and assumption of risk, and it was therefore error to take these issues away from the jury.\nWe affirm.\nOur opinion'will be limited to the negligence of defendants, proximate cause and assumption of risk. The issue of assumption of risk and proximate cause in those areas where defendants could have been found negligent is dispositive of the issues on appeal and we will not discuss plaintiff\u2019s contributory negligence. Williamson v. Smith (Ct.App.) 82 N.M. 517, 484 P.2d 359, decided March 26, 1971.\nPlaintiff would have us rule that there were issues of fact to be determined by the jury regarding defendants\u2019 failure to provide a safe place for plaintiff to work. The allegations center around three factual circumstances: the presence of loose peas on top the porcelain cooler; defendants\u2019 not providing a ladder for plaintiff thus making it necessary for him to climb on boxes and then on top the cooler .to store his \u201cbackup\u201d supplies; and not providing a rail on top of the cooler.\nNEGLIGENCE OF DEFENDANTS.\nThe mere presence of the peas on top the cooler with no other evidence from which negligence may have been inferred did not present a question of fact to be determined by the jury. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 458 P.2d 843 (Ct.App.1969). Plaintiff asserts, and we agree, that he was a business visitor. Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). In order to find one negligent towards his business invitees it is necessary that the evidence or reasonable inferences therefrom establish a dangerous condition which either is known or should have been known to the proprietor; that the dangerous condition is such that the owner realizes that his invitees would not discover the danger for themselves; and with such knowledge the proprietor fails to exercise reasonable care to protect his invitees. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., supra.\nThe evidence in this case is that the peas were seen on the cooler for the first time on the day of the accident, and that plaintiff was the only person who saw them. There was neither evidence nor speculation as to how the peas got there. The proprietor and his employees had no likelihood of seeing loose peas on the cooler for only salesmen of bakery products went on top the cooler. The evidence adduced at trial leads only to the conclusions that defendants had no reason to suspect that there would be any peas on top the cooler. They could not be charged with knowledge of the dangerous situation. Hence, as a matter of law, they were not negligent on this issue to their business invitees. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., supra.\nSAFE PLACE TO WORK.\nWe shall assume for purposes of this discussion that defendants in fact had a duty to provide plaintiff with a safe place for work. We shall further assume that the absence of a ladder and a rail constituted negligence by defendants.\nConsidering the evidence on these two issues we find that the trial court properly disposed of them as a matter of law. For the doctrine of assumption of risk to apply, it must be shown that a dangerous situation existed; that the plaintiff knew of the dangerous situation; and that the plaintiff voluntarily exposed himself to the danger and was injured thereby. Williamson v. Smith, supra; Francis v. Johnson, 81 N.M. 648, 471 P.2d 682 (Ct.App.1970).\nGenerally the defense of assumption of risk is a question to be determined by the trier of fact but it becomes a question of law when all the evidence will support but one legitimate inference. Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969); Williamson v. Smith, supra. At trial the undisputed evidence was that plaintiff knew of the dangerous situation on which he predicates defendants\u2019 negligence. He admitted that it was dangerous stacking goods on top the cooler without a ladder. He requested a ladder and none was provided. He appreciated the danger of falling from the cooler. He knew that the porcelain surface of the cooler was more slippery than concrete and was dangerous since it did not have a protective rail around the top. This evidence leads to but one conclusion, that the plaintiff knew and appreciated the danger.\nPlaintiff urges us, however, that he did not voluntarily assume the risk. He contends that he \u201cwas ordered, in effect coerced, into working on top the box.\u201d In light of the testimony that plaintiff had to please the store manager or lose his shelf space and since he was paid on commission, plaintiff\u2019s contention approaches the \u201ceconomic coercion\u201d argument. However,-, this court has recently reiterated its stand that \u201ceconomic coercion\u201d does not negate voluntariness. Williamson v. Smith, supra. Under the facts of this case, as a matter of law, plaintiff voluntarily assumed the-risk of the absence of a rail on the top of' the box.\nWilliamson v. Smith, supra, also refers to the view that a servant does not assume the risk if there is an assurance by the master that a condition, about which the servant has complained, will be remedied. Under this view, it is doubtful that plaintiff may be held, as a matter of law, to have assumed a risk arising from the absence of a ladder under the evidence. Even if assumption of risk is not applicable to the absence of a ladder, the undisputed evidence is that the ladder simply had nothing to do-with the accident. There is evidence that the peas caused the fall and that the guard rail would have prevented the fall to the floor. There is only speculation that the-absence of the ladder had anything to do-with the fall. The absence of the ladder, insofar as it supports a theory of an unsafe-place to work, simply is not a causal element in plaintiff\u2019s accident.\nAffirmed.\nIt is so ordered.\nSPIESS, C. J., and WOOD, J., concur..", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Lewis R. Sutin, Sutin, Thayer & Browne, Irwin S. Moise, Albuquerque, for plaintiff-appellant.", "Ranne B. Miller, Keleher & McLeod, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "487 P.2d 495\nThomas J. O\u2019NEIL, Plaintiff-Appellant, v. FURR\u2019S, INC., and Bellas Hess Super Stores, Inc., Defendants-Appellees.\nNo. 564.\nCourt of Appeals of New Mexico.\nJune 18, 1971.\nCertiorari Issued July 21, 1971.\nLewis R. Sutin, Sutin, Thayer & Browne, Irwin S. Moise, Albuquerque, for plaintiff-appellant.\nRanne B. Miller, Keleher & McLeod, Albuquerque, for defendants-appellees." }, "file_name": "0793-01", "first_page_order": 849, "last_page_order": 852 }