Bruno v. Pendleton Realty Co.

• Decision Date: 14 March 1962
• Docket Number: No. 17886,17886
• Citation: 124 S.E.2d 580,240 S.C. 46,95 A.L.R.2d 1333
• Court: South Carolina Supreme Court
• Parties: , 95 A.L.R.2d 1333 Albert BRUNO, Respondent, v. PENDLETON REALTY COMPANY, Inc., Appellant.

Page 580

124 S.E.2d 580

240 S.C. 46, 95 A.L.R.2d 1333

Albert BRUNO, Respondent, v. PENDLETON REALTY COMPANY, Inc., Appellant.

No. 17886.

Supreme Court of South Carolina.

March 14, 1962.

Hagood, Rivers & Young, A. Baron Holmes, III, Charleston, for appellant.

Paul N. Uricchio, Jr., Charleston, for respondent.

MOSS, Justice.

Albert Bruno, the respondent herein, brought this action against Pendleton Realty Co., Inc., the appellant herein, to recover damages for personal injuries suffered by him, at appellant's shopping center, when he was caused to fall as a result of stepping on the edge of a curbing which was concealed by a heavy growth of grass.

The appellant is the owner of a lot of land on which is located the Charleston Heights Shopping Center. This shopping center consists of a number of store buildings leased to various merchants. In front of and to the west of the store buildings there is located a sidewalk running parallel to the store buildings. There is a parking area to the west of this sidewalk. The sidewalk is elevated some four or five inches above the parking area, and at the southernmost end of the sidewalk there is a walkway which runs perpendicular to, and intersects with, the said sidewalk. The sidewalk is approximately four inches above this walkway. The sidewalk and walkway are of concrete construction and have the same color, while the parking area is of black asphalt.

The respondent did, on August 25, 1956, go to the shopping center owned by the appellant for the purpose of purchasing toys from Robinson's Bicycle Shop, a merchant who had a store in said shopping center, for an Elks children's picnic. The respondent, upon learning that Mr. Robinson, the proprietor of the bicycle shop, was at a cafe on Reynold's Avenue, south of the shopping center, walked in a southerly direction on the sidewalk towards the cafe, and turned right to go onto the walkway that led out into the parking area. As the respondent turned to go onto the walkway, he fell, receiving certain injuries.

The complaint alleges that grass had grown in a crack between the sidewalk and the walkway leading into the parking area, and that the growth of the grass was such that it gave the impression that the sidewalk and the walkway were of the same level. It is also alleged that the respondent fell due to stepping on the grass concealing the curb between the sidewalk and walkway and received personal injuries as a proximate result of the negligence and carelessness of the appellant.

The answer of the appellant denied that it was guilty of any negligence and alleged that the respondent, in broad daylight, when conditions were open and visible, fell as a result of his own negligence in failing to look where he was walking. The answer also charged the respondent with contributory negligence.

The case came on for trial before Honorable Bruce Littlejohn, and a jury, at the November 1959 term of the Court of Common Pleas for Charleston County, South Carolina. The appellant made timely motions for a nonsuit at the conclusion of the respondent's testimony, and for a directed verdict at the close of all the testimony, which motions were refused. The jury returned a verdict for the respondent in the amount of $1,300.00 actual damages. Thereafter, the appellant made motions for judgment non obstante veredicto and for a new trial. These motions were refused. The first group of exceptions raise two questions: (1) Was the appellant guilty of any negligence that was the proximate cause of respondent's injuries; and (2) Was the respondent guilty of contributory negligence that will bar him from recovery. We will consider these two questions together.

The question of whether or not there was error in refusing the motions of the appellant for a nonsuit, directed verdict, judgment non obstante veredicto, and alternatively for a new trial, requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light most favorable to the respondent. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. However, if the evidence is susceptible of only one reasonable inference, the question is no longer one for the jury but one of law for the Court. Green v. Bolen, 237 S.C. 1, 115 S.E.2d 667. Ordinarily, contributory negligence is an issue for the jury and it rarely becomes a question of law for the Court.

The principles governing liability in a case of this kind are very simple and well settled. One who operates a shopping center where stores are leased to merchants and the owner retains possession and control of the parking area and sidewalks, is not an insurer of the safety of those who use the parking lot and sidewalks as customers of the merchants leasing the stores, but the owner of the premises owes the customers the duty of exercising ordinary care to keep the passageways, sidewalks and such other parts of the premises as are ordinarily used by the customers in transacting business in a reasonably safe condition. Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262; Gilliland v. Pierce Motor Co., 235 S.C. 268, 111 S.E.2d 521.

We have also held that in order for a respondent to recover damages, in a case of this nature, there must be proof not only of injury but also that it was caused by actionable negligence. It should also be kept in mind that the doctrine of res ipsa loquitur does not apply in this State. King v. J. C. Penney Co., 238 S.C. 336, 120 S.E.2d 229.

It is undisputed that there was a difference between the level of the walkway and the sidewalk. Generally, it is not negligence to maintain under appropriate circumstances, different levels in approaches to places of business. Seal v. Safeway Stores, 48 N.M. 200, 147 P.2d 359. The mere fact that there is a difference between the levels in the different parts of the premises does not, in itself, indicate negligence unless, owing to the character, location and surrounding condition of the change of level, a reasonably careful person would not be likely to expect or see it. Crocker v. WTAR Radio Corp., 194 Va. 572, 74 S.E.2d 51. The installation of means to accommodate persons using the premises in their passage up and down a grade between different levels does not constitute negligence, unless the owner or occupant has failed to exercise ordinary care in the construction or maintenance of such installation. Cameron v. Small, Mo., 182 S.W.2d 565. So, a step-down or a step-up upon premises does not, in and of itself, constitute negligence. Buck v. Miller Amusement Co., 166 Kan. 205, 200 P.2d 286; 65 C.J.S. Negligence § 81, at page 585. It is also true that where a dangerous condition in premises is latent and of which the owner knew or should have known, and is unknown to invitees, the owner is required to give proper warning in order to relieve himself from liability for injuries incurred by reason thereof. However, one who, with knowledge of the conditions of the premises, goes into danger, he assumes the consequences and, even though there be negligence on the part of the other, if the complainant suffer hurt to which his negligence contributed as a proximate cause, without which it would not have occurred, he is barred of recovery. Benton v. United Bank Building Co., 223 N.C. 809, 28 S.E.2d 491, and Bolen v. Strange et al., 192 S.C. 284, 6 S.E.2d 466.

Where the sidewalk and the walkway intersect, there was a space or crack at such intersection. Dirt accumulated in this space or crack and...