Foster v. Weitzel

193 S.E.2d 329 (1972)

17 N.C. App. 90

Richard Eugene FOSTER, II, by his Guardian ad Litem, Richard Eugene Foster v. Eugene WEITZEL, Jr., and wife, Novella Weitzel.

No. 7228SC708.

Court of Appeals of North Carolina.

December 20, 1972.

Certiorari Denied February 6, 1973.

*330 Brock & Howell by Floyd D. Brock, Asheville, for plaintiff appellee.

Clarence N. Gilbert, Asheville, for defendant appellants.

Certiorari Denied by Supreme Court February 6, 1973.

CAMPBELL, Judge.

The question presented by this appeal is whether the evidence taken in the light most favorable to the plaintiff was sufficient to be submitted to the jury. The evidence, when so considered, reveals that a mother took her toddling baby, less than two years of age, into a laundromat provided by the defendants for the use of patrons desiring such a service. There were two automatic clothes dryers located in one end of the building. One of these dryers had no back on it and was positioned so that the wall did not form a back as the dryer itself was at least two feet from the wall. This dryer had pulleys and a belt which operated the machinery when the dryer was in use. The dryer was not affixed to the floor; and while it may have been customarily close to the wall so that the wall acted as a back, nevertheless, on this occasion, it was some two feet removed from the wall and the open moving machinery was not obvious to the mother and had not been called to her attention before the injury to her son.

The child on this occasion occupied the relationship of at least an implied invitee on the premises. Fortune v. Southern Railway Co., 150 N.C. 695, 64 S.E. 759 (1909); Thacker v. J. C. Penney Company, 254 F.2d 672 (5th Cir. 1958). Persons engaged in operating laundromats in this day and time should anticipate that mothers using the laundromat facilities will be accompanied by their children in order to make use of the facilities provided by the business proprietor. Under such circumstances, the proprietor is not an insurer, but such a proprietor is bound to exercise ordinary care for the safety of such children. The proprietor owes the duty to exercise ordinary care to maintain in a reasonably safe condition the premises and to give warning of hidden perils or unsafe conditions insofar as these can be ascertained by reasonable inspection and supervision.

The defendants place considerable reliance upon the case of Freeze v. Congleton, 276 N.C. 178, 171 S.E.2d 424 (1969). We think the instant case distinguishable from the Freeze case in that in the instant case the child's mother had no *331 knowledge that the dryer was not equipped with a back and had exposed machinery which would entice a toddling baby to investigate. On the other hand, the proprietor knew, or should have known, that small children would accompany their parents on the premises. Under these circumstances, it was incumbent upon the proprietor to take reasonable precautions to keep the premises in a reasonably safe condition and not have exposed moving machinery. We think the facts in this case, when viewed in the light most favorable to the plaintiff, presented a question for the jury.

No error.

MORRIS and PARKER, JJ., concur.