Shutt v. Kaufman's, Inc.

165 Colo. 175, 438 P.2d 501 (1968)

 

RULE:

In a relationship between a business visitor and a storekeeper, the storekeeper owes a duty to one who enters upon the premises at his invitation, express or implied, to protect such visitor not only against known dangers, but also against those which, by the exercise of reasonable care, he might discover. Although the storekeeper must exercise reasonable care for the safety of the business visitor, he is not an insurer of the safety of such visitor. Thus, the mere happening of an accident raises no presumption of negligence, except under those circumstances where the doctrine of res ipsa loquitur is applicable.

FACTS:

Plaintiff visitor went to defendant storekeeper's store to try on shoes. When plaintiff sat down, her chair bumped a display table with sufficient force to cause the shoe stand above her chair to topple off a shelf and strike her on the head. Plaintiff sued defendant for damages for personal injuries. The trial court submitted an instruction on res ipsa loquitur and found in defendant’s favor. On appeal, the court affirmed the trial court’s judgment.

ISSUE:

In plaintiff visitor’s action for personal injuries sustained as result of being struck by falling object while trying on shoes in defendant storekeeper’s shoe store, was it right for the court to give instructions in reference to the doctrine of res ipsa loquitur?

ANSWER:

No.

CONCLUSION:

The circumstances were such that plaintiff visitor could have shown that defendant storekeeper was responsible for her injuries because of its negligence. Plaintiff could have demonstrated that the table or stand were so unstable that defendant created a dangerous condition by placing the stand on the table's top shelf above customers' heads where it was likely to topple off. Accordingly, plaintiff failed to prevail even with the unfair advantage of an erroneously submitted instruction on res ipsa loquitur.

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