Keith v. SS Kresge Co.

225 S.E.2d 135 (1976)

29 N.C. App. 579

Ruth KEITH v. S. S. KRESGE COMPANY and K-Mart Enterprises of North Carolina, Inc.

No. 7614SC92.

Court of Appeals of North Carolina.

June 2, 1976.

*137 Charles Darsie, Durham, for plaintiff-appellant.

Teague, Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey, Raleigh, for defendants-appellees.

ARNOLD, Judge.

The record shows that plaintiff was a customer at defendants' store at the time she was injured. While defendants are not insurers of the safety of their customers they do have a duty to exercise ordinary care to keep the premises in reasonably safe condition, and to give warning of unsafe conditions insofar as they are known or should be known by reasonable inspection. Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E.2d 1 (1964); Long v. Food Stores, 262 N.C. 57, 136 S.E.2d 275 (1964); Mitchell v. K.W.D.S., Inc., 26 N.C.App. 409, 216 S.E.2d 408 (1975).

Defendants' position is that there is no material fact at issue since all the evidence filed shows there was nothing unusual about the way the display was created, or anything unusual about the display after the accident. Evidence indicated that the store manager inspected the display after the accident and determined no cause for the falling except for some other customer disarranging or pushing the boxes.

Moreover, defendants assert that plaintiff's evidence is totally lacking concerning the display being precarious or dangerous, or whether the defendants or another customer was responsible for creating the dangerous condition. They maintain there was no showing by plaintiff that the condition existed for a sufficient length of time to place defendants on notice of the condition.

"Irrespective of who has the burden of proof at trial upon issues raised by the pleadings, upon a motion for summary judgment the burden is on the movant to establish that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law." Mitchell v. K.W.D.S., Inc., supra, 411, 216 S.E.2d 410. In the instant case the plaintiff had no burden to offer evidence in support of her claim until defendants produced evidence of the necessary certitude to negate plaintiff's claim in its entirety and show they were entitled to judgment as a matter of law. Sanders v. Davis, 25 N.C.App. 186, 212 S.E.2d 554 (1975); Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974); Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974).

In our opinion defendants failed to put on sufficient evidentiary material of necessary certitude to negate plaintiff's claim. Defendants did not meet their burden of establishing that the accident was not caused by their failure to exercise reasonable care, and that reasonable care was exercised to prevent or to discover and remove the unsafe condition for plaintiff and others invited to shop in the K-Mart. Tolbert v. Tea Co., supra.

The judgment appealed from is

Reversed.

PARKER and HEDRICK, JJ., concur.