No. 80CA0180Colorado Court of Appeals.
Decided July 30, 1981. Rehearing denied August 20, 1981. Certiorari granted November 30, 1981.
Appeal from the District Court of the City and County of Denver, Honorable Raymond D. Jones, Judge.
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Norton Frickey Associates, Dan N. Hover, for plaintiff-appellee.
Anstine Hill, Arthur H. Anstine, for defendant-appellant.
Division II.
Opinion by CHIEF JUDGE ENOCH.
[1] Defendant, Safeway Stores, Inc., appeals a judgment entered on a jury verdict in favor of plaintiff, Charles L. Smith, for $9,000 in damages incurred by plaintiff as a result of a slip-and-fall accident in one of defendant’s self-service supermarkets. We affirm. [2] On November 7, 1978, plaintiff was shopping in defendant’s store, and while walking down an aisle between two rows of counters stocked with merchandise, plaintiff slipped and fell. He slipped on a substance on the floor which was described as looking like hand lotion. [3] Plaintiff did not present any evidence that the substance was on the floor as a result of an act by defendant or its employees or that defendant had actual knowledge of its presence. Nor did plaintiff present evidence that the substance had been on the floor for a length of time sufficient to establish that defendant had constructive notice of its presence. I.
[4] Defendant first contends that plaintiff was required to prove that defendant had actual or constructive notice of the presence of the substance on the floor, and having failed to do so, the trial court erred by not granting its motion for directed verdict or in the alternative its motion for judgment notwithstanding the verdict.
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understandably is focused on the items displayed rather than on the floor, creates a dangerous condition. These risks are easily foreseeable, and a proprietor, having selected a self-service method of sale, is charged with knowledge of them. See Ciminski v. Finn Corp., 13 Wash. App. 815, 537 P.2d 850 (1975); Rhodes v. El Rancho Markets, 4 Ariz. App. 183, 418 P.2d 613 (1966); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966). See generally Annot., 85 A.L.R. 3d 1000 (1978).
[7] Jasko v. F.W. Woolworth Co., supra, did not involve a self service grocery operation, but involved what the court determined to be a continuous creation of a dangerous condition. However, by its use of the disjunctive, the Supreme Court implicitly extended the Jasko holding to situations where, as here, the creation of the dangerous condition is easily foreseeable. [8] We also note that the court in Jasko cited as support for its holding several cases that had abandoned the notice requirement for slip-and-fall injuries occurring in self-service grocery stores. See Thomason v. Great Atlantic Pacific Tea Co., 413 F.2d 51 (4th Cir. 1969) Rhodes v. El Rancho Markets, supra; Woolerman v. Grand Union Stores, Inc., supra; Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796(1970). We therefore hold that the operating methods of defendant were such that the dangerous condition that resulted in plaintiff’s injuries was easily foreseeable, and accordingly, plaintiff was not required to prove notice. [9] Though proof of notice is not required, there still remains the question of whether the proprietor took reasonable steps to discover and obviate the danger. What is reasonable is a fact question, and depends upon the nature of the circumstances surrounding the business conducted See Ciminski v. Finn Corp., supra. [10] Therefore, whether defendant took reasonable steps to obviate the danger here was a question for the jury, and the trial court did not err in refusing to grant defendant’s motion for directed verdict, or judgment notwithstanding the verdict.
II.
[11] Defendant next contends that the trial court improperly applied § 13-21-301, C.R.S. 1973 (1980 Cum. Supp.) in excluding from evidence plaintiff’s statement taken by defendant. We do not agree. Section 13-21-301, provides:
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Defendant then contacted an orthopedic surgeon and was examined on November 21, 1978, fourteen days after he was injured. The doctor prescribed medication along with follow-up visits, and plaintiff was not released to return to work until March 5, 1979.
[19] Although there are no Colorado cases interpreting this statute, the New Mexico Supreme Court, interpreting a substantially similar statute, has held that for a plaintiff to be considered under the care of a practitioner of the healing arts, such care need not be actual and continuous, but rather “must be provided in good faith and must be reasonably required.” Bolles v. Smith, 92 N.M. 524, 591 P.2d 278 (1979). We adopt this interpretation of the statute. [20] Although plaintiff was not under the care of a particular doctor on the day the statement was taken, he was at that time on referral status, and under such circumstances, we hold that care was being provided in good faith, and was reasonably required. Thus, the trial court did not err in excluding the statement. [21] We also reject defendant’s contention that statements obtained in violation of § 13-21-301 may be used for purposes of impeachment. The statute does not provide for such an exception, and such an exception would circumvent the intent of the General Assembly to prevent the use at trial of statements taken under the prohibited circumstance.III.
[22] Defendant’s final contention is that the trial court erred in instructing the jury to consider “other expenses” in assessing plaintiff’s damages. This issue was not raised by defendant in its motion for new trial, and, finding no plain error, we will not consider the issue here.