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Vickers v. Gercke

Supreme Court of Arizona

June 18, 1959

Frank VICKERS and Rose Vickers, his wife, Appellants,
v.
Most Reverend Daniel J. GERCKE, Bishop of the Roman Catholic Church of the Diocese of Tucson and his successors, a corporation sole, and Father John Doran, Pastor of St. Thomas the Apostle Church, Phoenix, Arizona, Appellees.

Page 988

[86 Ariz. 76] John F. Swartz, and Irwin Cantor, Phoenix, for appellants.

Moore & Romley, and John H. Killingsworth, Phoenix, for appellees.

PHELPS, Chief Justice.

This is a common-law negligence action by plaintiffs Rose Vickers and Frank Vickers, her husband, against the defendants Most Reverend Daniel J. Gercke, Bishop of the Roman Catholic Church of the Diocese of Tucson and his successors, a corporation sole, and Father John Doran, Pastor of St. Thomas The Apostle Church, Phoenix, Arizona. The parties will hereinafter be referred to as plaintiffs and defendants.

Plaintiffs in their complaint allege that on November 24, 1954, the defendants owned and maintained a cafeteria in connection with St. Thomas The Apostle Church located in Phoenix, Arizona; that on this date the plaintiff Rose Vickers was at the request of the defendants working in the cafeteria as a voluntary unpaid worker; that the defendants negligently and carelessly maintained the cafeteria in that they permitted mashed potatoes to be on the floor; that defendants knew or by the exercise of reasonable care should have known that said mashed potatoes were on the floor; that the defendants were further negligent in that they carelessly maintained and kept the cafeteria inadequately lighted; that as a result of the negligence of defendants, plaintiff Rose Vickers stepped upon the mashed potatoes, slipped and fell, sustaining serious injuries.

From the evidence it appears that the plaintiffs were members of St. Thomas The

Page 989

Apostle Church and their adopted daughter was a student at the Church's school. There was a cafeteria in connection with [86 Ariz. 77] the school in which the children ate their lunch and Father Doran, the Pastor of the Church, had asked for unpaid workers to help in the cafeteria. Rose Vickers, plaintiff, volunteered to work in the cafeteria and her services were accepted by the Church. She worked for four or more days each week for a period of approximately nine months. She received no compensation, but did receive her meals. She and all of the other workers were under the supervision of one Mrs. Dalton who was the paid manager of the cafeteria. Mrs. Dalton directed the movements and actions and details in which the workers carried out their work.

A daily routine was followed in serving at the cafeteria. At 11:30 a. m. the older children, sixth and seventh grade, would be served cafeteria style, then sit down at the tables and eat their lunch. This was a continuous procedure until all the children had eaten. The youngest children, those in the first and second grades, were served last at the tables. The Sisters would sit with them and supervise. By 12:30 or 1 p. m. the children were usually finished eating. The workers would clean up the kitchen while the table was being set for them to eat. After the workers ate, the tables and chairs were cleaned off and the dishes were washed. Later on in the afternoon the janitor would sweep the floor and mop it.

It was known by all the workers that the children did spill food on the floor. If it was noticed by any of the Sisters or workers that there was food on the floor during the time the children were eating, it would be cleaned up.

On the date that plaintiff was injured the meal had included mashed potatoes. The children had already eaten and were out of the cafeteria. The workers were finishing their meal and plaintiff was going to see one of the Sisters to get a report for Mrs. Dalton. The time was approximately 2 or 2:30 o'clock p. m. As the plaintiff was walking along the aisle through the cafeteria, she stepped on some mashed potatoes which according to the testimony were approximately the size of a quarter. The potatoes caused her to slip and she fell on the cement floor sustaining serious injury. She had not seen the mashed potatoes nor did she know that they were on the floor.

The testimony concerning the lighting of the cafeteria was conflicting. The plaintiff testified that the lighting was poor. Other witnesses testified that the lighting was adequate. The plaintiff testified that as she was walking down the aisle she was looking straight ahead and was not scanning the floor.

At the close of plaintiffs' case defense counsel moved for a directed verdict which was renewed at the close of defendants' case, both of which were denied and the matter submitted to the jury. The jury was unable to agree upon a verdict and was discharged. Later the defendants moved for [86 Ariz. 78] a judgment notwithstanding no verdict, The trial judge granted this motion and a judgment was entered in favor of the defendants.

In their appeal to this court plaintiffs list two assignments of error. The first assignment is to the effect that the trial court erred in rendering a judgment notwithstanding no verdict and in denying plaintiffs' motion for a new trial for the reasons that the plaintiffs established that defendants were negligent in failing to remove the mashed potatoes from the floor, and in failing to provide adequate light for the cafeteria. The second assignment of error is that the trial court erred in rendering judgment notwithstanding no verdict, and in denying plaintiffs' motion for a new trial for the reason that contributory negligence or assumption of risk alleged as a defense is a question for the jury and cannot be decided as a matter of law.

Plaintiffs contend that Rose Vickers was an invitee and that the law governing invitees is applicable, but state further that even if she were a servant, under a master servant relationship, the case ...


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