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District Court of Appeal, Second District, Division 4, California.

Theresa KOPFINGER, Plaintiff and Appellant, v. GRAND CENTRAL PUBLIC MARKET et al., Defendants and Respondents.

Civ. 26936.

Decided: August 09, 1963

Ernest George Williams, and Louis Romero, Los Angeles, for plaintiff and appellant. Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker, Los Angeles, for defendants and respondents.

In this action for damages for personal injuries received by plaintiff when she slipped on a piece of gristle on a public sidewalk, plaintiff appeals from a judgment of nonsuit rendered by the court in a trial before a jury.

Disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, as we are required to do in reviewing a judgment of nonsuit, (Estate of Caspar, 172 Cal. 147, 155 P. 631; Meyer v. Blackman, 59 A.C. 691, 694, 31 Cal.Rptr. 36, 381 P.2d 916), we have concluded that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff had such a verdict been given.

About noon on Friday, January 29, 1960 plaintiff, an elderly lady, while on her way to the premises of defendant Grand Central Market, was walking on the public sidewalk, on the east side of Hill Street, Los Angeles, just outside of the north aisle of defendant market, when she stepped on a piece of gristle about the size of a 50 cent piece, slipped and fell, injuring herself, and leaving a skidmark on the sidewalk about 6 inches in length.

The premises of defendant Grand Central Market, consisting of a street floor and a basement, are located between Hill Street and Broadway. Another market is located on Hill Street to the south, separated from defendant market by an alley and several stores. At the time of the accident, defendant Melton, one of approximately 50 persons leasing business space, called stalls, from defendant market, had leased three stalls and was engaged in the retail sale of meat. Two of Melton's stalls were located on the north side of the market and the third faced Hill Street. The latter, situated in between the market's north and center aisles, was located just off the Hill Street sidewalk, separated from the sidewalk by a passageway which was provided around the meat counter from the aisles on each side. Defendant Melton also leased a receiving or cutting room which was located on the north side of the north aisle. Kramer (not a party), had a meat stall on the Broadway side, and the Holzbands (not parties), had one in the basement. A delicatessen adjoined the east end of the defendant Melton's Hill Street stall and the two businesses used a common entrance.

Meat for the defendant Melton was delivered in trucks by approximately 20 suppliers. No special parking places were provided for these deliveries and the deliverymen parked wherever they could locate parking places either on Hill Street, or in an alley next to the market.

Defendant Melton had three handcarts, called tanks, which were used by the deliverymen to haul meat from the trucks to defendant's stalls, or to his receiving room. Sometimes, though rarely, a driver would carry in a quarter of beef on his back.

When asked whether he noticed any suet or fat fall along the side of the road or on the sidewalk while meat was being placed in his tanks, defendant Melton testified, ‘Well, I might have at one time or another. I don't remember any specific instance.’ Mr. Abbott, the assistant superintendent of defendant Grand Central Market, testified that he had on occasion watched as beef was being unloaded from delivery trucks. He stated that some of the trucks have doors opening from the side out onto the sidewalk, and that beef is pulled out over the sidewalk. He stated that while he had never seen any fat or suet fall on the sidewalk, he had seen some fall into the street.

Evidence was introduced concerning the physical characteristics of gristle and its location in a piece of meat. It was distinguished from fact or suet in that it is a ‘soft thin bone’ located in the interior of meat, in between the various layers of meat and fat. Plaintiff's medical witness described it as cartilage. When meat is cut up, no gristle is removed. It does not hang ‘loose’ so as to be capable of being picked off by hand. When meat is loaded onto the handcarts to be delivered to defendant Melton, no gristle would ‘hand out’ on the side of beef, nor ordinarily would fat.

Although defendant Melton did not hire men to clean or sweep the area around his stalls and receiving room, defendant Grand Central Market employed a number of porters who did. No particular routine was followed, nor were any porters assigned to sweep any particular place. Instead, they alternated around the market working the place as a whole. Testimony was given by Mr. Abbott that porters swept the entire market area about every 20 minutes. Defendant Melton testified that when a porter swept the section around his stalls, usually he would also sweep the area in front of the building. This occurred every 15 or 20 minutes. No porter was stationed at defendant Melton's stall to sweep immediately after each delivery. Defendant Melton testified that when meat was being cut up in his cutting room, ‘there could be’ occasions when some trimmings would fall from the cutting block to the floor. ‘Q. Mingled in with the sawdust? Is that correct? A. I don't know. I never inspected it that closely, could be * * * It's not supposed to be.’ The trimmings or waste were saved and put in cans which were picked up by a rendering company from the cutting room. The pickup was made on Fridays. On the date of the accident twelve different companies made deliveries to defendant Melton.

No evidence was offered to show that the rendering company made its pickup prior to the time of the accident. The only evidence offered concerning the time of the meat deliveries was defendant Melton's testimony that the meat deliveries were usually made in the morning and were ‘pretty well through by 11 a. m.’

Plaintiff makes no contention that either of defendants caused the piece of gristle to be on the sidewalk. She asserts, however, that it can reasonably be inferred from the evidence adduced that the gristle was dropped either during the course of one of the meat deliveres made to defendant Melton on the morning of the accident or during the course of the Friday pickup of meat trimmings by the rendering company. It is clear that evidence essential to possible recovery by plaintiff, may not rest on conjecture or speculation. (Eramdjian v. Interstate Bakery Corp., 153 Cal.App.2d 590, 602, 315 P.2d 19.)

As stated by the court in Ulwelling v. Crown Coach Corp., 206 Cal.App.2d 96, 104–105, 23 Cal.Rptr. 631, 635–636: ‘Thus, before a judgment of nonsuit can be disturbed, there must be some substance to plaintiff's evidence upon which reasonable minds could differ; proof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain his burden. [Citations.] * * * [T]he burden was upon plaintiffs to establish that defendants had some duty to them and breached it, and that such breach was the proximate cause of the accident; if there is no evidence of substance tending to prove the controverted facts necessary to establish the plaintiffs' case, the motions for nonsuit were in order. * * *’

‘If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [Citation.]’ (Reese v. Smith, 9 Cal.2d 324, 328, 70 P.2d 933, 935.)

Plaintiff maintains that, under the circumstances, defendants had a duty to the public in general, and to her in particular, to keep the sidewalk adjacent to the market premises clean, that defendants' failure to do so was negligence and the proximate cause of her fall and injury. The cases passing on the question of the duty of the owner or occupant of abutting property to clean a sidewalk or street in this and in other jurisdictions have uniformly held, in the absence of a statute imposing a duty, that no such duty exists. In Bolles v. Hilton & Paley, Inc., 119 Cal.App. 126, 6 P.2d 335, plaintiff, while walking on a public sidewalk in front of defendant's store, slipped on ‘some wet paper and rubbish’ fell, and injured herself. In affirming a judgment of nonsuit it was held (p. 128, 6 P.2d p. 336): “In this country, in the absence of a statute or ordinance requiring them to do so, abutting owners are under no obligation to keep the street or sidewalk in front of their premises in repair or in a safe condition for public travel.' [Citation.]' (See also Winston v. Hansell, 160 Cal.App.2d 570, 573, 325 P.2d 569, and Sexton v. Brooks, 88 A.L.R.2d 326, 39 Cal.2d 153, 157, 245 P.2d 496.)

In the case of Barton v. Capitol Market, 57 Cal.App.2d 516, 134 P.2d 847, the owners of a building adjacent to a sidewalk, sprayed the building with an oily and slippery liquid which drained off and spread across the sidewalk, causing plaintiff to slip. The court pointed out the general rule of no affirmative obligation on the abutting property owner to keep the sidewalk in a safe condition and then discussed an exception to the rule. (P. 518, 134 P.2d p. 848.) ‘It is equally well settled, however, that if the abutting owner by positive action creates a condition which is likely to cause harm to persons lawfully using the sidewalk, and a person is injured as a proximate result thereof, the property owner is liable. Stated another way, the owner of premises abutting a sidewalk is under a duty to refrain from doing any affirmative act that would render the sidewalk dangerous for public travel.’

In Winston v. Hansell, supra, 160 Cal.App.2d 570, 325 P.2d 569, plaintiff attempted to bring the facts of the case within the exception by alleging that defendants made ‘special use’ of the sidewalk, using it as a driveway. The court in affirming a judgment, sustaining a demurrer without leave to amend, stated at pages 576–577, 325 P.2d page 573: ‘Certainly, in this day and age, the use of a sidewalk as a driveway to the abutting property is not a peculiar or unusual use of such sidewalk. It is one of the ordinary and accustomed uses for which sidewalks are designed.’

In the instant case the use of the sidewalk in the course of deliveries would not under the circumstances appear to us to be an ‘affirmative’ act that would render the sidewalk dangerous, any more than would be the driving of an automobile across the sidewalk in the course of putting it in a garage. Further, here the use of the sidewalk was not made by defendants themselves, as in the cases applying an exception to the general rule, but by independent contractors over whom plaintiff has failed to show defendants had any control. The mere fact defendant Melton permitted deliverymen to use his handcarts to facilitate delivery of heavy articles would not in itself impose any responsibility upon defendants for their actions.

Furthermore, it is the opinion of this court that any inference that the piece of gristle was dropped during the course of a delivery or pickup of meat or trimmings must of necessity be based on conjecture or guess, there being insufficient evidence in the record upon which to support it. The gristle could just as easily have been discarded by some luncher eating a sandwich who found the same therein, or by a deliveryman making a delivery to the market on the east side of Hill Street, a few doors south of defendant Grand Central Market. This ‘* * * may be challenged as speculative but it is no more speculative than plaintiff's assertion * * *.’ (Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 745, 314 P.2d 33, 38.)

Plaintiff raises the argument that, from the evidence, it might reasonably be inferred that the object upon which she slipped was a piece of fat, and not gristle at all. She then points out that the testimony of defendant Melton and Mr. Abbott indicates that fat, on occasion, fell off meat during deliveries.

However, plaintiff herself testified, that she had stepped on a piece of ‘gristle’ and Mr. Abbott, the only other witness was gave testimony concerning the nature of the object upon which plaintiff slipped, testified that near the skidmark on the sidewalk where plaintiff fell, he found what appeared to be ‘a flattened piece of gristle.’

Plaintiff contends Los Angeles Municipal Code Section 56.08(c) is applicable to the facts of this case; that it created a statutory duty of care on the part of both defendants to keep the sidewalks adjacent to their premises clean; that the refusal of the trial court to allow Section 56.08 to be admitted into evidence, was error.

Section 56.08 provides in part: ‘(c) No person having charge or control of any lot or premise, shall allow any soil, rubbish, trash, garden refuse, tree trimmings, ashes, tin cans, or other waste or refuse to remain upon any sidewalk or in or upon any street abutting on or adjacent to such lot or premises, or to interfere with or obstruct the free passage of pedestrians or vehicles along any such street or sidewalk.’ [Emphasis added.]

The use of the word ‘allow’ in the ordinance implies that the abutting landowner or occupant has knowledge or awareness of the condition of the street or sidewalk. The term ‘allow’ always implies knowledge or consent. (Colonial Stores v. Scholz, 73 Ga.App. 268, 36 S.E.2d 189, 191.)

“To allow a thing to be done is to acquiesce in or tolerate; knowledge, express or implied, being essential.' [Citations.]' (McDiarmid v. Commonwealth, 184 Va. 478, 35 S.E.2d 813, 815.) (See also Vol. 3 Words and Phrases, Perm.Ed. p. 349.)

In People v. Forbath, 5 Cal.App.2d Supp. 767, 42 P.2d 108, a city ordinance prohibited the owner of a vehicle ‘to allow, permit or suffer’ the vehicle to be parked upon any street in violation of law. It was held (pp. 769–770, 42 P.2d p. 108): ‘[T]he words ‘allow’ (citation), ‘permit’ (citation), and ‘suffer’ (citation), all imply knowledge of, coupled with a duty and power to prevent, the particular act or omission, the allowance, permittance, or sufferance of which constitutes the offense. * * * [O]ne cannot ‘allow’, ‘permit’ or ‘suffer’, in the sense here intended, that which he has no power or duty to prevent, or concerning which, * * * he has no knowledge.'

No evidence was presented by plaintiff in this case showing actual knowledge on the part of either defendant of the presence of the piece of gristle upon the sidewalk. Neither did plaintiff make any showing that the gristle had been on the sidewalk for any appreciable length of time in order to support a finding of constructive knowledge on defendant's part. Testimony was given by defendant Melton that a porter would sweep around his stall and out in front of the building about every 15 of 20 minutes. Mr. Abbott testified that every area of the market was cleaned approximately every 20 minutes. Planitiff introduced no evidence which would tend to contradict this testimony.

It is argued that the trial court was in error in refusing to permit introduction of Section 56.08(c) of the Municipal Code in evidence. For the reason heretofore stated this ordinance imposed no duty on either defendant toward plaintiff to remove gristle, the presence of which they had no knowledge either actual or constructive, and hence the ruling that the same was not to be admitted in evidence, was proper.

Plaintiff contends that the trial court also erred in excluding evidence of prior and subsequent accidents at defendant Grand Central Market, sought to be introduced by plaintiff, as tending to show a dangerous condition existed there. In this connection the court in Trust v. Arden Farms Co., 50 Cal.2d 217, 224, 324 P.2d 583, 587, 81 A.L.R.2d 332, stated the California rule: ‘It is the general rule that evidence of subsequent accidents has no probative tendency to show that a defendant might reasonably have anticipated the previous accident, and therefore such evidence is inadmissible. [Citation.]’

The rule concerning admissibility of evidence of prior accidents is stated in the case of Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 220, 331 P.2d 617, 623 as follows: ‘Before evidence of previous injuries may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question. [Citations.]’ ‘The question of admissibility is primarily one for the trial court and is confined to its sound discretion. [Citation.]’ (Martindale v. City of Mountain View, 208 Cal.App.2d 109, 116, 25 Cal.Rptr. 148, 152.)

The trial court in the instant case, properly excluded the offers of proof, there being no showing of substantial similarity in any of the accidents for which offers were made. None of the accidents, whether prior or subsequent, involved any meat or meat origin of any kind, nature or description. All but one of the accidents occurred on the premises of defendant market. The offer of proof of the accident which occurred outside the premises, was to the effect that a woman, leaving the market on the Broadway side, slipped and fell on the Broadway sidewalk. ‘There was water on the sidewalk left from a delivery and Butler, an employee of the market was in the act of cleaning it up.’ Neither this offer of proof nor any of the other offers included a showing that the conditions of the particular event were in any way similar to the case at bar.

Plaintiff challenges the trial court's ruling in sustaining defendant's objection to the qualification of a witness to testify as an expert. Plaintiff's witness testified that he had been engaged in the ‘meat’ business since 1934, first in North Dakota and since 1954 in Los Angeles; that he has a meat market located at Sunset and Fountain; that he has observed meat deliveries there, and also has observed the manner in which meat is loaded by the suppliers in Vernon. He was presumably prepared to testify as an expert, that whenever meat was delivered to any place in the metropolitan Los Angeles area, that a dangerous condition resulted. Yet, he did not testify that he ever had observed meat delivered to any place other than to his own market. As pointed out to plaintiff's counsel by the trial court, ‘there is no foundation that he knows anything about anything in the community, and custom of delivery in the community other than to his own place.’

In Trust v. Arden Farms, supra, 50 Cal.2d 217, 224–225, 324 P.2d 583, 587, the court in affirming a judgment of nonsuit stated: ‘The rule is settled that an expert is not qualified as a witness unless it is shown that he is familiar with the standards required under similar circumstances [citation]; also, that the trial court's ruling upon the sufficiency of the qualification of an expert will not be disturbed on appeal in the absence of a showing of abuse of discretion. [Citations.]’

In this case no abuse of discretion has been shown.

Judgment affirmed.


BURKE, P. J., and KINGSLEY, J., concur.

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