Gaskill v. Great Atlantic and Pacific Tea Company

171 S.E.2d 95 (1969)

6 N.C. App. 690

Bertie Lewis GASKILL v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Inc.

No. 693SC529.

Court of Appeals of North Carolina.

December 17, 1969.

*97 Thomas S. Bennett, Morehead City, for plaintiff appellant.

Harvey Hamilton, Jr., Morehead City, for defendant appellee.

FRANK M. PARKER, Judge.

A customer entering a store during business hours attains the status of an invitee of the proprietor. Morgan v. Great Atlantic & Pacific Tea Co., 266 N.C. 221, 145 S.E.2d 877. This relationship, however, does not make the proprietor an insurer of his customers safety while on his premises. Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E.2d 1. Any liability on the part of the proprietor for injuries suffered by his customers attaches only for such injuries as result from his actionable negligence. Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33. The proprietor does owe to his customers the duty to exercise ordinary care to maintain in a reasonably safe condition those portions of his premises which he may expect they will use during business hours, and to give warning of hidden peril or unsafe conditions insofar as these can be ascertained by reasonable inspection and supervision. Dawson v. Carolina Power & Light Co., 265 N.C. 691, 144 S.E.2d 831. If the unsafe condition is created by third parties or by an independent agency, a showing must be made that it had existed for such length of time that the store proprietor knew or by the exercise of reasonable care should have known of its existence in time to have removed the danger or given warning of its presence. No inference of negligence on the part of the store proprietor arises from the mere fact of a customer's fall on the floor of his store during business hours, the doctrine of res ipsa loquitur not being applicable. Hinson v. Cato's, Inc., 271 N.C. 738, 157 S.E.2d 537; Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281. See: Annotation, 62 A.L.R.2d 6.

Considering plaintiff's evidence in the light of these well-established principles, we are of the opinion that judgment of nonsuit in the present case was proper. Taking plaintiff's evidence as true, considering it in the light most favorable to her, and giving her the benefit of every reasonable inference which may legitimately be drawn therefrom, as we are required to do in passing upon a ruling on motion for nonsuit, Clarke v. Holman, 274 N.C. 425, 163 S.E.2d 783, all that has been shown is that on a rainy afternoon defendant allowed water to accumulate on the asphalt tile floor immediately inside the entrance to its store; that plaintiff entered the store as a customer; and that plaintiff there fell and was injured. In at least two respects this showing is insufficient to impose liability on defendant: First, plaintiff's evidence failed to show that defendant was in anywise negligent or had failed to exercise ordinary care to maintain its premises in a reasonably safe condition for its customers; and second, plaintiff's evidence failed to show that her fall and injuries were caused by any slippery condition of the floor or by any other dangerous condition on defendant's premises.

The proprietor of a business establishment is not required to take extraordinary precautions for the safety of his invitees, the measure of his duty in this respect being to exercise reasonable or ordinary care. 65 C.J.S. Negligence § 63 (121), p. 888.

In Dawson v. Carolina Power & Light Co., supra, a customer-invitee sued the defendant to recover damages for personal injuries sustained when she slipped and fell on a wet or damp floor inside defendant's office. In approving judgment of nonsuit, the Court, speaking through Parker, J. (later C. J.) said:

"No inference of actionable negligence on defendant's part arises from the mere fact that on a rainy day plaintiff suffered personal injuries from a fall occasioned by slipping on some dampness or on `a little mud' and `a little bit of *98 water' just inside the door of defendant's office. * * * "There is an absence of any evidence showing that it is a common practice or precaution of prudent storekeepers or keepers of offices under similar conditions to have on rainy days a mat or other covering at the entrance of their stores or offices or on the floors of their stores or offices for invitees entering to wipe their feet on. There is no evidence here of any structural or unsafe defect at the entrance to defendant's office or in respect to the floor of its office. Plaintiff has no evidence tending to show that defendant did or omitted to do anything which a storekeeper or the keeper of an office of ordinary care and prudence would do under the same circumstances for the protection of its customers or other invitees. Under the facts and conditions shown here, the mere fact that defendant had no mat at the entrance to its office or on the floor of its office when the fact that it was raining was as apparent to plaintiff as to defendant is not negligence."

Justice Parker's opinion then quoted with approval from the decision in Sears, Roebuck & Co. v. Johnson, 91 F.2d 332, 339, as follows:

"`If what was shown in this case was sufficient to permit recovery, it would require store owners to have a mopper stationed at the doors on rainy days for the sole purpose of mopping up after every customer entering or leaving the premises. Every store owner would be required to be an insurer against such accidents to public invitees who came in on rainy days with wet shoes.'"

We think the case presently before us is controlled by the reasoning of Dawson v. Carolina Power & Light Co., supra, and that in this case there was no evidence to show that defendant failed to exercise ordinary care to maintain its premises in a reasonably safe condition. The case of Powell v. Deifells, Inc., 251 N.C. 596, 112 S.E.2d 56, cited by the plaintiff, is distinguishable. In that case a customer in defendant's store slipped on a wet floor while looking at merchandise and at a point in the main aisle some 20 to 25 feet from the entrance door. It had been raining all morning and at times the rain was mixed with snow. One of the clerks and the store manager, on adverse examination, testified that the floor was slippery when wet and that defendant customarily put mats at the door on rainy days and mopped with a dry mop if any water accumulated, but that on the day in question mats were not placed at the door and the store was not mopped. Under those circumstances the Court held that the question of defendant's negligence was for the jury. In the present case there was no evidence of snow or anything other than rain water being involved; plaintiff fell, not while her attention was directed to examining merchandise within the store, but immediately at the entrance; there was here no evidence that the floor was slippery when wet, and no evidence that the defendant failed to follow usual precautionary procedures customarily employed by it in rainy weather.

Futhermore, in the present case plaintiff's evidence completely fails to establish that any condition of defendant's floor or premises caused her to fall. She testified merely that on stepping inside the entrance door "down I went in a big puddle of water." Plaintiff's attorney, in his brief on this appeal, states that the floor was covered with asphalt tile and "was slippery when wet." The record before us, however, is totally devoid of any evidence that the floor here in question was in fact slippery when wet.

The judgment of nonsuit is

Affirmed.

CAMPBELL and GRAHAM, JJ., concur.