Carter v. Food Lion, Inc., COA96-1349

• Decision Date: 19 August 1997
• Docket Number: No. COA96-1349,COA96-1349
• Citation: 127 N.C.App. 271,488 S.E.2d 617
• Parties: Augusta B. CARTER, Plaintiff-Appellee, v. FOOD LION, INC., Defendant-Appellant.
• Court: North Carolina Court of Appeals

Page 617

488 S.E.2d 617

127 N.C.App. 271

Augusta B. CARTER, Plaintiff-Appellee, v. FOOD LION, INC., Defendant-Appellant.

No. COA96-1349.

Court of Appeals of North Carolina.

Aug. 19, 1997.

Waddell Mullinax Childs & Williams by Richard A. Williams, Jr., Newton, for plaintiff-appellee.

Poyner & Spruill, L.L.P. by Douglas M. Martin and S. Mujeeb Shah-Khan, Charlotte, for defendant-appellant.

WALKER, Judge.

Plaintiff's evidence tended to show the following: On 26 February 1994, defendant operated a retail grocery store in Maiden, North Carolina, where plaintiff was a regular customer. About 7:00 p.m. on this date, plaintiff arrived at the store to purchase certain items. After making his selections, he paid the clerk, picked up his bag containing several items and proceeded to exit the store. As he approached the automatic doors, plaintiff slipped and fell. His feet went forward toward the doors and his right leg was pinned underneath him. As a result of the fall, plaintiff sustained a fracture of the right leg.

An inspection of the area where plaintiff fell revealed a piece of green vegetable material which was preceded by a green streak on the floor near the automatic doors. The parties stipulated at trial that this green vegetable material caused plaintiff to slip and fall.

Scott Baxter, a Food Lion employee, testified that when he arrived plaintiff was lying on the floor and that he noticed "there was something on the floor close to him [plaintiff] green, greens, lettuce ..." which had a "streak where it had been." In describing the floor area between the checkout counter and the doorway, Baxter testified [I]t appeared ... like somebody left their receipts here and there, maybe a coupon or two. But from there forward, from what I could see of the floor, it appeared that--I remember seeing tracks from where a buggy had went through produce and got into some water over there. It didn't appear that the floor was as clean as it should have been at the time, considering it was a Saturday and there was a lot of people coming in and out. It was a custom we keep the front end very clean.... It is the most dangerous for accidents to occur.

When plaintiff's wife arrived he was still on the floor. She observed a green streak between where he lay and the checkout counter and she remembered she "kicked pieces of paper out of [her] way" as she approached the assistant manager at the checkout counter. Lewis Campbell, the store manager on duty, testified that he had inspected the front of the store after returning from his supper break about 6:00 p.m. He stated that the condition of the floor was not unusual and that it was the general practice to patrol the store every 2 to 3 hours or as needed. However, an accident report prepared by Campbell just after the incident stated that the area had been cleaned and inspected within the hour before the fall. The report also noted that the area was not clean because of the vegetable material on the floor.

Defendant's motions for a directed verdict were denied and the jury awarded plaintiff the sum of $33,000.00 in damages. Defendant contends the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict (JNOV).

In ruling on a motion for a directed verdict, the trial court must consider the evidence in the light most favorable to the non-moving party, giving it the benefit of all reasonable inferences to be drawn therefrom, and resolving all conflicts in the evidence in its favor. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986). A motion for JNOV pursuant to Rule 50/(b)(1) is essentially a renewal of an earlier motion for a directed verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985). Thus, the test for determining the sufficiency of the evidence when ruling on a motion for JNOV is identical to that applied when ruling on a motion for a directed verdict. Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973). The burden carried by the movant is particularly significant in cases in which the principal issue is negligence. Only in exceptional cases is it appropriate to enter a directed verdict against a plaintiff in a negligence case. Cook v. Wake County Hosp. Sys., Inc., 125 N.C.App. 618, 482 S.E.2d 546, 548 (1997). In negligence cases, summary adjudication is normally inappropriate due to the fact that the test of the reasonably prudent person is one which the jury must apply in deciding the questions at issue. Id. at ----, 482 S.E.2d at 549.

In order to survive a motion for JNOV, plaintiff must present evidence setting forth a prima facie case of negligence, i.e. plaintiff must forecast evidence to show that defendant owed plaintiff a duty of care, that defendant's actions or failure to act breached that duty, that the breach was the actual and proximate cause of the injury to plaintiff, and that damages resulted from the injury. Lamm v. Bissette Realty, 327 N.C. 412, 416, 395 S.E.2d 112, 115 (1990).

Plaintiff was an invitee on the premises of defendant by virtue of his status as a customer. Crane v. Caldwell, 113 N.C.App. 362, 365, 438 S.E.2d 449, 451 (1994). Because plaintiff was an invitee, the store had a duty to keep the floors and passageways in a reasonably safe condition for invitees entering or leaving the premises and to warn of any hidden dangers about which defendant knew or, in the exercise of reasonable care, should have known. Lamm, 327 N.C. at 416, 395 S.E.2d at 115.

An invitee may not recover unless he can show that the dangerous condition which caused his fall had existed for such a period of time that the defendant knew or by the exercise of reasonable care should have known of its existence and given warning. Long v. National Food Stores, 262 N.C. 57, 60, 136 S.E.2d 275, 278 (1964). A proprietor is not the insurer of the safety of its customers. Wrenn v. Hillcrest Convalescent Home, 270 N.C. 447, 448, 154 S.E.2d 483, 484 (1967). See also, Rone v. Byrd Food Stores, 109 N.C.App. 666, 428 S.E.2d 284 (1993). Therefore, defendant's duty to plaintiff was that of " 'ordinary care to keep [its store] in a reasonably safe condition ... and to give warning of hidden perils or unsafe conditions insofar as they could be ascertained by reasonable inspection and supervision.' " Rone, 109 N.C.App. at 669, 428 S.E.2d at 285-86, (quoting Raper v. McCrory-McLellan Corp., 259 N.C. 199, 203, 130 S.E.2d 281, 283 (1963)).

In order to hold the defendant liable, the plaintiff must show that defendant either negligently created the condition causing the injury or negligently failed to correct the condition after actual or constructive notice of its presence. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342-43 (1992)....