Chalmers v. Great Atlantic & Pacific Tea Co.

• Decision Date: 25 May 1937
• Docket Number: 29.
• Citation: 192 A. 419,172 Md. 552
• Parties: CHALMERS v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: Maryland Court of Appeals

192 A. 419

172 Md. 552

CHALMERS v. GREAT ATLANTIC & PACIFIC TEA CO.

No. 29.

Court of Appeals of Maryland

May 25, 1937

Appeal from Baltimore City Court; Eugene O'Dunne, Judge.

Action by Helen Chalmers against the Great Atlantic & Pacific Tea Company. From a judgment on a directed verdict for defendant plaintiff appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Clay Jewell and Sigmund Levin, both of Baltimore, for appellant.

L. Wethered Barroll, Jesse Slingluff, Jr., and Marbury, Gosnell & Williams, all of Baltimore, for appellee.

OFFUTT Judge.

This is an appeal from a judgment on a directed verdict for the defendant, in an action brought in the Baltimore city court by Helen Chalmers against the Great Atlantic & Pacific Tea Company, to recover for injuries said to have been caused by a fall over a carton of canned goods placed in an aisle in a store operated by the defendant where she was present as a patron and business visitor. The single question submitted is whether the evidence was legally sufficient to permit a recovery.

There was in the case evidence legally sufficient to permit the following finding of fact: At about 5 o'clock in the afternoon of January 23, 1936, the plaintiff went to a grocery and provision store operated by the defendant at the corner of Calhoun and Baltimore streets, in the city of Baltimore, to make purchases. She first purchased articles at the grocery counter, and then with her packages in her arms went to the meat counter which was in the back of the store, and made purchases there. After making those purchases as she turned "to move in the passage way" she "fell over" a box "sitting there," and was injured. The box was a pasteboard carton, contained canned goods, it was brown, about the same color as the floor, and "sitting" just far enough for her to take "one step from the meat counter." To go from the meat counter to the grocery counter, or the door, it was necessary for her to pass the point where the box was placed, there was no other way to get out, "it was right in the passage way out in front." There was light in the store.

These facts furnish an analogy by no means complete to such cases as Benesch & Sons v. Ferkler, 153 Md. 680, 683, 139 A. 557; Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 450, 146 A. 282; Grzboski v. Bernheimer-Leader Stores, 156 Md. 146, 148, 143 A. 706; Moore v. American Stores Co., 169 Md. 541, 546, 182 A. 436; and Eyerly v. Baker, 168 Md. 599, 606, 178 A. 691, where the injuries complained of were caused by some abnormal condition of the premises which created a danger which the visitor had no reason to anticipate or to guard against. Boxes, cartons, crates, and bags are commonly found in grocery and provision stores placed in a more or less disorderly way about the store, without relation to any definite system of arrangement or purpose, except perhaps convenient access to their contents. Visitors to such a store must expect to find and to guard against those conditions, because they are an ordinary and usual incident of the business. One is not required to conduct an ordinary and lawful business at his peril merely because persons visiting his premises for business purposes may be injured by conditions commonly incident to the business, when they could have avoided the danger by exercising the degree of vigilance which the conditions required. If one enters a store where he must reasonably expect to find boxes, bags, or other like obstructions, placed irregularly here and there on the floor, he must look for them, and if he does not look, and falls over such an obstruction, because he did not look, he cannot complain.

In Benesch & Sons v. Ferkler, supra, the injury resulted from slipping on a greasy floor, in Grzboski v. Bernheimer-Leader Stores, supra, from slipping on an orange peel, in Moore v. American Stores Co., supra, from slipping on a greasy floor, in Eyerly v. Baker, supra, from a defective revolving door, and in Dickey v. Hochschild, Kohn & Co., supra, from a defective step in a stairway. In those cases the injury was caused by some abnormal and dangerous condition of the premises which the inviter negligently permitted, and which the visitor could not reasonably be expected to anticipate. So far from being an incident of the business, they were wholly inconsistent with the care and foresight which its nature required its proprietors to exercise. But while a somewhat different case is presented here, it must be true that the proprietor of any store, which the public are invited to patronize, is under a duty to use ordinary care to see that persons coming into the store as business visitors to purchase or inspect goods, while using it in the only manner permitted by its arrangements, are not exposed to the risk of injury through conditions, not necessarily incident to the business, which they could not reasonably be required to anticipate, or discover. Benesch & Sons v. Ferkler, supra; Dickey v. Hochschild, Kohn & Co., supra; Grzboski v. Bernheimer-Leader Stores, supra; Moore v. American Stores Co., supra; Eyerly v. Baker, supra; O'Neill & Company v. Crummitt (Md.) 190 A. 763.

Accordingly it would seem that, even in a grocery and provision store where the articles offered for sale are irregularly placed about the floor, since it is intended that purchasers will inspect and select such articles as they desire to purchase from those offered for sale, the owner is under a duty to provide reasonably safe passageways to afford access to different parts of the store, where customers are expected to go.

The general rule embodying that principle is thus stated in the Restatement of Torts, Am.Law Institute, § 343: "A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii...