Appel v. FOOD LION, LLC
| Decision Date | 15 February 2005 |
| Docket Number | No. COA04-423,COA04-423 |
| Citation | 608 SE 2d 415 |
| Parties | BARBARA APPEL, Plaintiff v. FOOD LION, L.L.C., Defendant. |
| Court | North Carolina Court of Appeals |
This case not for publication
Durham County No. 00 CVS 4358.
Simons & Associates, by Douglas T. Simons for plaintiff-appellee.
The Law Office of John T. Benjamin, Jr., by John T. Benjamin, Jr. and William E. Hubbard, for defendant-appellant.
Food Lion, L.L.C. ("defendant"), presents the following issues for our consideration: (I) Whether the trial court erroneously denied defendant's motion for a directed verdict and motion for judgment notwithstanding the verdict because the evidence failed to establish negligence and proved plaintiff's contributory negligence, and (II) whether the trial court erroneously denied defendant's motion for a new trial. Food Lion also contends the trial court erroneously denied defendant's motions to quash plaintiff's subpoena duces tecum and erroneously instructed the jury. After careful review we conclude the trial court erroneously denied defendant's motion for a directed verdict.
The pertinent facts indicate that on 30 October 1999, Barbara Appel ("plaintiff"), a 67-year old woman, was shopping with her husband, Kenneth Appel ("Mr. Appel"), in a Durham, North Carolina, Food Lion grocery store. Plaintiff was walking down the aisles looking at the products and prices while her husband pushed the grocery cart behind her. She was wearing tennis shoes, her glasses and had her purse on her arm. As she was walking down the laundry detergent aisle looking at the price tags for specials, plaintiff stepped into something, looked down and realized she had stepped into some liquid detergent. Immediately thereafter, she fell. After she fell, she saw a bottle of liquid detergent with the cap off against the side of the shelf.
As her husband was unable to help her up, Mr. Appel notified store management. Store management contacted the paramedics and went to assist plaintiff. Mr. Appel drove his wife to the hospital. Due to the fall, plaintiff had a rotary cuff tear, torn ligaments in her arm and underwent surgery.
On 30 October 1999, the assistant store manager, Adam Smith ("Mr. Smith"), was working. According to Food Lion policy, the manager walks the entire store at 8:00 a.m., 10:00 a.m., 2:00 p.m. and 4:00 p.m. to make sure the store is neat, clean, that there is nothing on the floor, and that there are no expired products on display for sale. On 30 October 1999, Mr. Smith began his store walk at 10:00 a.m. and arrived to the laundry detergent aisle at approximately 10:45 a.m. He testified that the floor was clean and free of debris at that time. From 11:00 a.m. until 12:30 p.m., Mr. Smith testified he was in his office doing paperwork. Mr. Smith did not see plaintiff's accident, however, he went to her assistance after being notified by a customer that plaintiff had fallen. He called paramedics and obtained information for the accident report he had to submit to Food Lion's Risk Management Department.
The time of the accident is disputed by the parties. The accident report submitted by Mr. Smith indicates the accident occurred at 12:30 p.m. However, Mr. Smith testified that 12:30 p.m. is the time at which he saw plaintiff leave the store and that he believed the accident occurred between 11:30 a.m. and noon. Plaintiff did not state what time the accident occurred during her testimony; however, the emergency room report indicates she informed the ER doctors the accident occurred at 12:30 p.m. Nonetheless, Mr. Smith testified that he did not know the liquid detergent had spilled prior to plaintiff's accident and that no one had notified him of the spill. Mr. Smith testified that Mr. Appel informed him plaintiff caused the spill by standing on the bottom shelf and reaching for a bottle of liquid detergent. The bottle slipped out of her hands, hit the floor and busted. She stepped down into the liquid and fell. Mr. Appel denied making this statement and Mr. Smith's accident report made on 30 October 1999 does not include this statement. At the beginning of the trial, defendant moved to quash two subpoenas sent by plaintiff requesting copies of any accident reports made on 30 October 1999. Essentially, defendant contended the documents should have been requested by using the appropriate procedure under the Rules of Civil Procedure and not by subpoena. The trial court denied defendant's motion to quash. After all the testimony was completed, defendant moved for a directed verdict which was denied by the trial court. After rejecting defendant's proposed jury instructions, the trial court instructed the jury and a verdict was returned in favor of plaintiff. The jury found defendant negligent, determined plaintiff was not contributorily negligent and awarded damages in the amount of $50,000.00. After judgment was entered on the verdict on 10 October 2003, defendant moved for judgement notwithstanding the verdict and for a new trial. From the denial of the motions for a directed verdict, judgment notwithstanding the verdict and for a new trial, defendant appeals.
Defendant argues the evidence did not establish defendant's negligence, and therefore, the trial court erroneously denied its motion for a directed verdict and judgment notwithstanding the verdict. Specifically, defendant argues plaintiff failed to establish by the greater weight of the evidence that defendant had actual or constructive knowledge of the detergent spill.
As explained in Thompson v. Wal-Mart Stores, Inc., 138 N.C. App. 651, 547 S.E.2d 48 (2000), when reviewing the grant or denial of a directed verdict in the context of a slip and fall case: Our review of [the grant or denial of] a [motion for a] directed verdict is limited to a determination of whether the evidence was sufficient to go to a jury. We review the evidence in the light most favorable to the non-moving party, accepting the non-moving party's evidence as true and giving her the benefit of reasonable inferences. Reasonable inferences must be drawn from established facts, not other inferences or speculation.
To present a prima facie case based on negligence, a plaintiff must present evidence that the defendant had a duty to conform to a certain standard of conduct, the defendant breached that duty, and the breach of duty was the proximate cause of the plaintiff's injury.
In North Carolina, a store owner's duty to its customers is to use ordinary care to keep its store in reasonably safe condition and to warn of hidden dangers or unsafe conditions of which the store owner knows or should know. To show that a store owner breached its duty of care, a plaintiff must show that the store owner either negligently created the condition causing her injury or negligently failed to correct the condition after actual or constructive knowledge of its existence.
Thompson, 138 N.C. App. at 653-54, 547 S.E.2d at 49-50 (citations omitted). In this case, no evidence was presented indicating defendant either negligently caused the spill or had actual knowledge of the spill's existence prior to plaintiff's fall. Indeed, plaintiff testified that she did not know who caused the spill and she did not know whether defendant knew of the spill's existence prior to the fall. Mr. Smith testified that the floor was clean and free of debris at 10:45 a.m. and that no one had informed him of a spill prior to the plaintiff's fall. Mr. Smith also testified that if one of the employees had either seen or been notified of the spill, the employee would have reported the spill to management. Mr. Smith testified that none of the employees had informed him of the spill prior to the accident. Therefore, in order to establish defendant's negligence, plaintiff would have had to present sufficient evidence of defendant's constructive knowledge of the spill's existence. See id., see also Williamson v. Food Lion, Inc., 131 N.C. App. 365, 507 S.E.2d 313 (1998)
.
The plaintiff bears the burden of showing that a dangerous condition existed for such a period of time that the defendant through the exercise of reasonable care should have known of its existence. Constructive knowledge of a dangerous condition can be established in two ways: the plaintiff can present direct evidence of the duration of the dangerous condition, or the plaintiff can present circumstantial evidence from which the fact finder could infer that the dangerous condition existed for some time. Circumstantial evidence may be used to establish an inference. However, inferences must be based on established facts, not upon other inferences. In other words, a jury may draw an inference from a set of facts, but may not then use that inference to draw another inference.
Thompson, 138 N.C. App. at 654, 547 S.E.2d at 50 (citations omitted). In this case, plaintiff did not offer any direct evidence of when the spill occurred or how long the spill had been on the floor. Thus, plaintiff was required to provide...
To continue reading
Request your trial