Annotate this Case

130 S.E.2d 537 (1963)

259 N.C. 350


No. 528.

Supreme Court of North Carolina.

May 1, 1963.

*538 Bryan & Bryan and Wilson & Bain, Dunn, for plaintiff.

Maupin, Taylor & Ellis, Raleigh, and Robert B. Morgan, Lillington, for defendant.

MOORE, Justice.

Plaintiff appellant asserts that the "sucker stick" covered by tissue paper constituted a hidden danger, this condition had existed in the aisle for thirty-five minutes at least, defendant in the exercise of reasonable care should have discovered and removed the hazard or warned plaintiff of its existence, and by failure to do so defendant is exposed to liability for damages.

It is axiomatic that storekeepers are not insurers of the safety of their customers while on store premises. Copeland v. Phthisic, 245 N.C. 580, 96 S.E.2d 697, 63 A.L.R.2d 587. Customers are invitees and the law imposes on storekeepers the duty of exercising reasonable care to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not to unnecessarily expose them to danger, and to give warning of unsafe conditions of which the storekeeper knows or in the exercise of reasonable supervision and inspection should know. Lee v. Green & Co., 236 N.C. 83, 72 S.E.2d 33.

*539 Where an unsafe condition is created by third parties or an independent agency, plaintiff must show that it had existed for such a length of time that defendant knew, or by the exercise of reasonable care should have known, of its existence in time to have removed the danger or given proper warning of its presence. Case v. Cato's Inc., 252 N.C. 224, 113 S.E.2d 320; Powell v. Deifells, Inc., 251 N.C. 596, 112 S.E.2d 56. "The length of time for which a dangerous condition in a store must exist to charge a storekeeper with knowledge of it depends on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and its location." 65 C.J.S. Negligence ยง 51, pp. 547-548.

The instant case is factually unique in that the dangerous substance was a stick concealed by an innocuous piece of tissue paper. While there is no specific description of the stick in the record, it is assumed that it was cylindrical, wooden or plastic, three or four inches long, and had a diameter smaller than an ordinary pencil, and that it had been inserted in a piece of candy as a handle and was discarded after the candy was eaten. There is no showing that candy was sold in the infant's department or anywhere in the store. The dimensions of the tissue paper are not given, but inasmuch as it was of the type of paper used to wrap or separate infant's garments, the inference is that its size was relatively small. There is no evidence that either the stick or the paper was dropped or thrown on the floor by an employee of defendant.

Where a storekeeper or his employee has knowledge that a slippery, or otherwise inherently dangerous, substance is present in an aisle or passageway of the store and negligently permits it to remain there and fails to warn imperiled customers, or where such substance is and remains in the aisle or passageway for such period of time that the storekeeper or his employee in the exercise of reasonable care should have discovered its presence and removed it or given warning, and fails to do so, liability attaches for injury in consequence of such neglect. Raper v. McCrory-McClellan Corp., N.C., 130 S.E.2d 281.

The two or three pieces of tissue paper referred to in the evidence may not be classified as inherently dangerous substances when lying on a level floor. There is no evidence that the floor itself was slippery. It was not reasonably foreseeable that harm would come to anyone from the presence of the tissue paper. Wentz v. J. J. Newberry Co., 152 Misc. 392, 273 N.Y.S. 449 (1934). That a sucker stick was under the paper was no more apparent to defendant than to plaintiff.

Defendant had the duty to exercise reasonable care to keep the aisles and passageways in reasonably safe condition. A storekeeper must use reasonable care to prevent trash and debris from accumulating in and on its aisles and stairways to such extent as to be obviously dangerous to customers who are expected to use these passageways. Relahan v. F. W. Woolworth Co., 145 Kan. 884, 67 P.2d 538. But this does not mean that every storekeeper must maintain a continuous sweeping and cleaning operation and see that no scraps of paper remain on the floor, nor are they required to anticipate that some dangerous substance may lurk under each piece of paper that falls. They are charged only with reasonable care. There is not a scintilla of evidence in this record that there was any trash or debris in any of the aisles or passageways of defendant's store other than the tissue paper and sucker stick. There is no suggestion that the aisles and passageways were not swept and cleaned at reasonable intervals. There is no evidence from which it may be inferred that the type of goods sold was such that if merchandise were dropped dangerous conditions would result. We find no evidence of neglect of duty on the part of defendant proximately causing plaintiff's injury.

Smith v. American Stores Co., 156 Pa. Super. 375, 40 A.2d 696 (1945), is in some *540 aspects quite similar to the case at bar. Plaintiff was making a purchase in defendant's meat and produce market. While carrying a package from the meat counter to the cashier's desk she stepped on a piece of paper. The paper was about a foot square and apparently was flat on the floor. Actually there were some carrot tops under the paper. When plaintiff stepped on the paper her foot slipped, she fell and was injured. The trial court allowed recovery, but the appellate court reversed. The evidence failed to disclose how long the carrot tops had been there and who put them there. The legal questions involved were in some respects different from those presented on the present appeal, but the facts were quite similar. We have found no decision more nearly in point.

The judgment below is


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