Opinion
June 29, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 588
Louis J. Stuart, Pueblo, for defendant in error, Rampart Embers, Inc.
Moyers & Dunlap, Robert Dunlap, Colorado Springs, for plaintiff in error.
Donald E. LaMora, Colorado Springs, for defendants in error, Dr. Albert Balows, Ann Balows and Embers Steak House, Inc.
ENOCH, Judge.
These cases involve a common transaction and were consolidated in the Supreme Court and thereafter transferred to the Court of Appeals pursuant to statute.
This is a slip and fall case. The parties occupy the same positions as in the trial below.
Pauline Nuzum (Nuzum) fell while getting up from a table at the 'Embers' restaurant in the City of Colorado Springs on March 4, 1967, at approximately 11:00 p.m. She claimed her fall and resulting injuries were caused by a tear in the carpet under the table. The evidence shows that the owners of the premises, Balows, leased the property to Embers Steak House, Inc. (Embers) in 1962 and Embers assigned the lease and turned possession over to Rampart Embers, Inc. (Rampart) on March 2, 1967, only two days before the accident.
Nuzum alleged that Rampart operated and controlled the premises at the time of the accident; that it knew or should have known of the tear in the carpet; and that it was negligent in not repairing the tear or warning her of its existence. Nuzum alleged that the Balows were the owners of the premises; that they leased the premises to Rampart several days prior to the accident; that the tear was in existence at the time they granted the lease; that the Balows knew, or should have known of the tear; that they knew that the premises would be used as a place frequented by the public; and that they were negligent in not repairing the tear or warning her of its existence. Nuzum alleged that Embers was the prior lessee and asserted against it allegations similar to those asserted against Balows and Rampart. All three defendants denied knowledge of the tear in the carpet and alleged Nuzum's contributory negligence. The Balows and Embers also alleged the negligence of 'some third person.'
Before trial Embers filed a motion for summary judgment, which was granted by the court. Thereafter, the issues between Nuzum and the remaining defendants, the Balows and Rampart, were tried to a jury. At the close of plaintiff's evidence, the trial court dismissed the Balows. The jury's verdict was in favor of Rampart.
Nuzum filed a Writ of Error on the summary judgment in favor of Embers and later obtained a second Writ of Error on the judgment in favor of Rampart and the dismissal of the Balows. The two Writs were thereafter consolidated.
I
Nuzum claims the trial court erred in granting a summary judgment in favor of Embers.
Ordinarily to establish a prima facie case in a slip and fall action, it is necessary to show that the defendant knew or should have known of the defect. Adkins v. Denver Dry Goods Co., 167 Colo. 545, 448 P.2d 957. Furthermore, it is generally the rule that responsibility for inspection and maintenance of the premises lies only with the party in control of the premises. See, 51C C.J.S. Landlord and Tenant s 366(1).
Nuzum claims that Embers was in control for a sufficient length of time to infer actual or constructive knowledge of the defect and that the defect should have been repaired by Embers. Embers, however, had assigned its lease and transferred control of the premises prior to the accident. Without abandoning the claim of Rampart's liability, Nuzum suggests that inasmuch as Rampart had just taken over the control of the premises, Rampart's short occupancy suggests a lack of opportunity to gain knowledge of the defect and to have had it repaired. Thus, Nuzum argues that if the defect existed during Embers' tenure, it was negligent in not having it repaired and its transfer of the premises should not exculpate it from liability. Nuzum cites no pertinent authority for this argument and we know of none to support it. We conclude that the trial court correctly granted summary judgment for Embers.
II
Nuzum claims the trial court erred in denying admission of two photographs of the carpet pad directly under the tear. Nuzum's purpose in offering these exhibits was to show that the pad under the tear in the carpert was worn, thereby inferring that the tear was in existence for some time prior to its repair after the accident. The photographs were taken on December 8, 1968, more than nine months after the accident. In Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658, the Supreme Court held, 'It is generally recognized that the question of the sufficiency of foundation proof to show that a photograph or a movie film is a fair or accurate representation of the objects or situations which it purports to portray is a matter largely within the discretion of the trial court.' In that case, the plaintiffs sought to introduce a film which was taken one year after an accident and which did not depict the same conditions as at the time of the accident. As in Summit County, supra, we hold the trial court did not abuse its discretion in refusing to admit the photographs into evidence.
III
Nuzum states the trial court erred in refusing her counsel's request to read to the jury a statement made by counsel during discovery proceedings. During discovery, Nuzum was asked to sketch the location of the table and chairs on a scale drawing of a portion of the restaurant prepared by a professional engineer. She complied with this demand after her attorney established that her efforts could not be expected to conform to the scale of the drawing. Rampart offered this drawing as an exhibit during the trial. No objection was made at the time of introduction. Nevertheless, the trial court cautioned the jury that the sketch was a free hand drawing and was not to scale. It was not until some time later that Nuzum's attorney requested to read his remarks made during Nuzum's deposition just prior to the time she drew the sketch. His purpose was to show the jury that Nuzum never intended the sketch to be to scale. The trial court did not allow his statement to be read, but did allow a direct question to be put to Nuzum as to whether she intended her sketch to conform to the scale of the drawing. We find no error and hold the jury was adequately informed that Nuzum's sketch was not intended to conform to scale.
IV
Nuzum claims error in the trial court's refusal to permit the deposition of one of defendants' witnesses to be read to the jury for the purpose of impeachment. Nuzum further claims the trial court was not justified in refusing to let the jury see the deposition.
During the taking of her deposition, the waitress who served Nuzum's party drew a sketch of the location of the table at which Nuzum was seated. She was again asked to sketch the location of the table at trial. The sketch made at trial varied somewhat from the sketch drawn during discovery. The second sketch in effect put the location of Nuzum further from the tear in the carpet. Nuzum's attorney sought to impeach the waitress' testimony by pointing out certain discrepancies. Specifically, at trial the witness sketched a second table as being located between the Nuzum table and the wall while in the sketch made before trial, she did not show the second table. However, the deposition shows that at that time, the witness was asked only to sketch in the Nuzum table. She was not asked to sketch in other tables.
We perceive no error in the trial court's rulings. This issue was quite belabored at trial. A reading of the entire deposition to the jury, or by the jury, would have served no worthwhile purpose. The alleged discrepancy in the witness' testimony was plainly before the jury.
V
Error is claimed in that the trial court granted a judgment of dismissal in favor of the Balows at the close of the plaintiff's case. Nuzum's theory is that when Rampart took control of the premises a few days prior to the accident, the Balows became responsible for any allegedly defective conditions in existence at that time. The record, however, shows that Embers never terminated its lease with the Balows. It merely assigned its lease which was to expire December 20, 1978 to Rampart. Thus, the Balows had not been in control of the premises since their lease with Embers commenced on June 18, 1962. '(M)ere consent to an assignment of a lease does not terminate the lease and result in a new lease nor renew the lease. It is a continuation of the lease.' Johnson v. Kurn, 8 Cir., 95 F.2d 629. Having no right or duty to repair the alleged defect, the Balows cannot be liable, especially where there is no evidence in the record of either actual or constructive knowledge of the defect by the Balows.
VI
Finally, Nuzum alleges the trial court erred in its instructions to the jury. Nuzum claims the trial court should have given her tendered instructions 1 and 2 and should not have given its instructions 9 and 10. We have examined these instructions and find that those given by the court more correctly state the law as applicable to this case.
Judgments affirmed.
COYTE and DUFFORD, JJ., concur.