The opinion of the court was delivered by: YOUNGDAHL
Originally, plaintiff sued three defendants (Giant Food Stores, Inc., American Mosaic Company, Inc., and Kass-Berger, Inc.) alleging negligence in the construction of a terrazzo floor in a Giant Food Store against all three defendants and alleging an additional ground of negligence against defendant Giant Food Stores, asserting that it failed to exercise ordinary care in the maintenance of the floor.
After the opening statement of plaintiff's attorney, the Court granted the motion of defendant Kass-Berger, Inc., for a dismissal against it, and at the end of plaintiff's case, the Court granted the motion of defendant American Mosaic Company, Inc., for a directed verdict and denied the motion of defendant Giant Food Stores, Inc., for a directed verdict.
The case was submitted to the jury against the remaining defendant, Giant Food Stores, Inc., on two issues of negligence in the maintenance of the floor.
First: That defendant Giant cleaned the terrazzo floor with soap, when it knew, or should have known, that it was improper to use soap and that it created a slippery and dangerous condition of the floor.
Second: That defendant Giant was negligent in mopping the floor and in not properly drying it, thus creating a damp and dangerous condition causing plaintiff to fall.
After a jury verdict of $ 15,000 for plaintiff, defendant has moved for judgment notwithstanding the verdict, or a new trial.
Although several other points are urged in defendant's memorandum submitted to the Court,
only three were urged upon the Court at the oral argument on the motion, viz.:
I. That there was insufficient evidence to go to the jury on the issue of defendant's negligence in using soap to clean the terrazzo floor.
II. That there was insufficient evidence to go to the jury on the issue of defendant's negligence in not properly drying the floor after mopping the same.
III. That the Court erred in receiving evidence that after plaintiff's fall, defendant no longer used soap in cleaning the floor.
That there was insufficient evidence to go to the jury on the issue of defendant's negligence in using soap to clean the terrazzo floor.
Plaintiff called John Smiley, manager of the Giant Food Store in which plaintiff fell, who testified that it was the custom of the store to wash its floor every morning shortly before it opened for business at nine o'clock. The floor was cleaned with whatever cleansers happened to have been damaged en route. Rather than return or discard the broken merchandise, the store used it for cleaning the floor. As a result, there is no accurate record of what cleansers were used -- sometimes soaps, sometimes detergents, sometimes Clorox was added to the mixture. The store was opened on November 1, 1954, and the floor was washed every morning thereafter, except Sundays and holidays. Plaintiff's fall occurred on February 23, 1955.
An expert witness, John Leonard, a chemist employed at the Bureau of Standards, testified on plaintiff's behalf concerning the chemical effect of using soap on a terrazzo floor.
He stated that a calcium stearate (a grease as insoluble as marble) would form as a result of the contact of the soap and the cement in the terrazzo. If Clorox were included in the solution with the soap, the formation of the grease would be accelerated and the condition aggravated. On the other hand, the use of detergents on the floor would be quite proper and would have no evil effects. He did not know how quickly the grease would form, but felt certain that after fifty washings with soap the slipperiness of the floor would be substantially increased.
Since the store was heavily trafficked, he was asked as to the possible effect of this amount of walking on the floor. He felt the effect was uncertain -- the walking could either have an abrasive effect and remove the grease, or a polishing effect and increase the floor's slipperiness. About six months before this trial (about two and one-half years after plaintiff's fall) Leonard inspected the floor and saw no film upon it. However, it was brought out that the floor was then being cleaned with a different cleaner, Misto-Mint or Pepto-Mint, whose exact chemical properties were not disclosed.
Other testimony corroborated Leonard's opinion that the use of soap was improper. Romeo Di Giulian, President of the American Mosaic Company, Inc., called as a hostile witness by the plaintiff, stated that neutral cleaning agents, not soap, should be used. (Transcript, pp. 83-84). John M. Walton, an architect, added that in Prince Georges County schools, ...