BUSY BEE BUFFET, Incorporated; Steve Pastis and George Bafaloukos, Appellants,
Norman FERRELL and State of Arizona, ex rel.; The Industrial Commission of Arizona, Appellees.
[82 Ariz. 193] Snell & Wilmer, Phoenix, for Busy Bee Buffet, Inc.
Moore & Romley, Phoenix, for Steve Pastis and George Bafaloukos.
Moore & Moore, Phoenix, for Norman Ferrell.
Donald J. Morgan, Phoenix, for Industrial Commission.
We are confronted in this case with two appeals: (1) from a judgment for personal injuries in favor of plaintiff Ferrell (hereinafter called Ferrell) and against the Busy Buffet (hereinafter called Buffet); and (2) from a judgment over in favor of the Buffet and against Steve Pastis for the same amount as that recovered [82 Ariz. 194] by Ferrell from the Buffet as a result of the alleged negligence of both the Buffet and Pastis.
The Buffet, Incorporated, is a co-tenant with Steve Pastis and George Bafloukos in the occupation of the premises described as Busy Bee Buffet and Restaurant located at the intersection of First Avenue and Washington Street, in the City of Phoenix, and more particularly in the passageway therein. The Buffet is operated exclusively by the Buffet corporation and occupies the west side of the premises. Pastis and Bafaloukos are the owners and operators of the restaurant located on the east side of the premises and are in full control thereof. Presumably for convenience, the judgment in favor of the Buffet ran only against Pastis, one of the co-partners (reference will hereinafter be made only to Pastis).
At the rear of the Buffet and the Restaurant is a narrow passageway 4 to 5 feet in which leading east from First Avenue, which is used for the benefit of both the Buffet and the Restaurant for the purpose of delivery of groceries, etc., to the Restaurant, and liquors to the Buffet.
There is a heavy double swinging door at First Avenue at the entrance to the passageway. About 4 feet further east is another double swinging door, and 9 feet further along the passageway is a third door with a screen in the upper half of the door. Beyond this door (distance not known) is a trap door covering an opening leading into a basement. Both the Buffet and Pastis had access to this basement and each had certain freezing units in it which required defrosting at intervals. Each defrosted his own unit when necessary. Above the trap door leading to the basement, was a small electric light which was located 5 to 8 feet above the door. The trap door extended across within one foot of the entire width of the passageway and was approximately 2 inches above the level of the concrete floor of the passageway. (East of this trap door a few feet was a fourth opening with no door shutter but which had a door sill also rising an inch or an inch and one-half above the level of the floor). The undisputed evidence is that the light in the passageway was quite dim and could scarcely be seen through the greasy screen of the third door, and the passageway west of the screen door was not lighted at all.
On the morning that Ferrell was injured, and prior to his arrival at defendants' place of business, Pastis opened the trap door
leading into the basement where he had to go to defrost the refrigeration units. After opening the trap door Pastis returned to the restaurant to procure a flashlight, and placed on the west side of the open basement door, two wooden milk boxes 12X18 inches in size, one upon top of the other, and placed sticks (broom-handles) on the east side thereof. This constituted the [82 Ariz. 195] only warning or protection to any persons using the passageway against the danger he had created.
While Pastis was absent in search of the flashlight Ferrell entered the passageway at the First Avenue entrance and proceeded with his delivery to the Buffet, two kegs of beer (weighing 169 pounds each) upon a two-wheel push truck. Because of the doors through which passage was made, and because of the elevated door sills and the elevated trap door over which the heavy kegs of beer had to be hauled, Ferrell had to pull the truck instead of pushing it, and, in order to do so he had to walk backward throughout the length of the passageway in making delivery to the Buffer. Ferrell had been delivering beer to the Buffet at least twice a week for several years and had never seen the trap door open and did not know that it was a trap door or that there was a basement beneath it, but supposed the boards had been placed there to cover concrete flooring which was defective in some manner.
On the morning of the injury Ferrell did not look back after passing through the screen door, first, he said because he was thoroughly familiar with the passageway there, and secondly, because he was busy watching the side walls of the passageway along the sides of which empty beer kegs, boxes and sacks of potatoes were frequently placed. He stated he had to do this so he could get through safely without spilling his load or running into the things stacked beside the walls. When he reached what he later discovered to be the trap door, he raised his foot to step up on the wooden structure and when he put his foot down there was nothing upon which to step. Consequently, he fell through the opening into the basement some 10 feet below, one of the beer kegs falling on top of him. He suffered severe injuries as a result thereof, and it is upon these facts that Ferrell's judgment rests and which form the primary basis for these appeals.
The buffer has appealed from said judgment and from the order of the trial court in denying its motion for judgment, notwithstanding the verdict, or, in the alternative, for a new trial.
Patis and Bafaloukos have appealed from the judgment against Pastis, and in favor of the Buffet, and from (1) the order of the court denying their motion for judgment in their favor upon the verdict; (2) from the order denying their motion to set aside that portion of the verdict returned awarding to the Buffet the same sums awarded to Ferrell against it; and (3) from the order of the court denying their motion to set aside said verdict, and for judgment in their favor as to the Buffet, and from the trial court's order denying their motion for a new trial.
We will first consider the questions raised in the Buffert's appeal.
[82 Ariz. 196] It complains that the court erred in refusing to grant its motion for judgment n. o. v. or in the alternative, for a new trial, for the reason that (1) there was no evidence of any negligence on the part of the Buffet; (2) there was no evidence that the Buffer knew or by the exercise of reasonable care should have known, that Pastis had created or might create a dangerous condition in the passageway; and (3) that the danger existed for so short a period the Buffet could not be charged with constructive notice thereof. We are of the view tht there is no merit to these claims. There was ample evidence of negligence on the part of the Buffet to go to the jury as we shall hereinafter show. It is the universal rule of law that one engaged in business is ...