Denaux v. United States

• Decision Date: 30 September 1983
• Docket Number: 82-3028-8.,Civ. A. No. 82-3029-8
• Citation: 572 F. Supp. 659
• Parties: Helen M. DENAUX, Plaintiff, v. UNITED STATES of America, Defendant. Raymond L. DENAUX, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Carolina

572 F. Supp. 659

Helen M. DENAUX, Plaintiff, v. UNITED STATES of America, Defendant.

Raymond L. DENAUX, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 82-3029-8, 82-3028-8.

United States District Court, D. South Carolina, Charleston Division.

September 30, 1983.

Mark C. Tanenbaum, Charleston, S.C., for plaintiffs.

Henry Dargan McMaster, U.S. Atty., Columbia, S.C., for defendant.

ORDER

BLATT, District Judge.

This action arises as a result of an incident which occurred on November 24, 1981, at the Charleston Air Force Base Commissary when the plaintiff, Helen M. Denaux, slipped on some produce in the produce section of the commissary and, as a result thereof, fell and fractured her hip. She and her husband, the plaintiff, Raymond L. Denaux, both timely filed administrative claims for relief with the United States, which claims were, in due course, denied. The plaintiffs then timely brought these actions pursuant to the Federal Tort Claims Act.

I. LIABILITY

On the day in question, plaintiffs were shopping at the Air Force Base Commissary where they had shopping privileges. While in the produce section of the store, the plaintiff, Mrs. Denaux, stepped on some crushed pole beans and slipped and fell. At the time this incident occurred, an employee of the store, Robert Tumulo, was unloading produce boxes loaded on a rolling "float" in the middle of the aisle of the produce section of the store, six feet from the produce counter. The beans on which the plaintiff slipped were within six inches of this "float." The plaintiff's husband testified that the beans were crushed, lying in a liquid type substance on the floor, in an area approximately eight by ten inches. He further testified that Tumulo was unloading produce from this "float" in a very hurried fashion.

The deposition testimony of several employees of the defendant was also read into evidence. The manager of the produce department, Murray Cannady, and his employees, Tumulo and Jowers, testified that, under normal circumstances, when a customer dropped produce of any kind it was generally found just in front of the produce counter; that the usual procedure for cleaning the produce section required the employee loading the produce bins to wait until he had finished unloading his entire "float" before cleaning the area, despite the known fact that those employees often dropped produce as they unloaded the "float" and knew that produce on the floor created a hazard to customers who might slip thereon and fall. The plaintiffs also introduced into evidence the store safety manager's log of accidents which revealed four other incidents of slipping and falling in the store in the six months preceding this accident, three of such falls occurring in the produce section.

The defendant called as witnesses the employees noted above who corroborated the statements in their depositions. Testimony was also elicited from them and others indicating that they had no knowledge of Mrs. Denaux's fall until she was able to get to the checkout counter and report the same to a cashier; and that upon inspecting the area in question about twenty-five minutes after the report, nothing was found on the floor.

The law of the State of South Carolina governs the plaintiffs' substantive cause of action. 28 U.S.C. § 2671. Bowen v. United States, 570 F.2d 1311 (7th Cir. 1978); United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). In Anderson v. Winn-Dixie Greenville, Inc., 257 S.C. 75, 184 S.E.2d 77 (1971), the South Carolina Supreme Court clearly set forth the basis for a storekeeper's liability:

It is settled law that a merchant is not an insurer of the safety of a customer in his store. His duty is to exercise reasonable due care to keep his premises in reasonably safe condition. Proof that a dangerous condition of the floor existed because of the presence of some foreign matter thereon is insufficient, standing alone, to support a finding of negligence. Unless it is inferable from the evidence that the storekeeper was responsible for creating the hazard, knowledge of its existence, either actual or constructive, is essential to recovery against him.

Anderson, 184 S.E.2d at 77.

In Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262 (1957), the South Carolina Supreme Court held that a plaintiff might recover in a slip and fall case if there were sufficient evidence to show that the substance on the floor was placed there by an act of the defendant.

The burden in this case was upon the respondent to show that the beans were on the floor by an act of the appellant or that they had been there for such a time as to charge the appellant with notice thereof.

Hunter, 101 S.E.2d at 265.

The plaintiffs have relied upon circumstantial evidence to prove their cases of liability. They argue that three separate bases for liability of the defendant to the plaintiffs are reasonably and properly inferable from the circumstantial evidence herein.

First, the plaintiffs argue that there is a reasonably proper inference to be drawn that the beans upon which Mrs. Denaux fell were dropped by the employee, Tumulo. The plaintiffs point to the following: the location of the beans some six feet from the counter, within six inches of the "float" from which the employee, Tumulo, was hurriedly unloading produce; the testimony of the produce manager and Jowers that pole beans were in stock in the store; the testimony that when a customer dropped produce it was found directly in front of the counter; the testimony that the employees dropped produce when unloading the "float" and carrying the produce to the bins; and that employees loading the produce bins do not clean the floor of the fallen produce until the entire "float" has been unloaded. Thus, the plaintiffs take the position that there is sufficient circumstantial evidence from which the trier of fact can find a reasonably proper inference that the defendant's employee, Tumulo, dropped the beans here involved on the floor.

Secondly, the plaintiffs contend that there is sufficient circumstantial evidence from which a reasonably proper inference can be drawn that the defendant knew or should have known presence of the beans on the floor. The plaintiffs point to the following in support of this theory: the location of the beans six feet from the counter and six inches from the float Tumulo was unloading; the fact that the beans had been stepped upon by persons in that area for a sufficient period of time to squeeze enough liquid substance therefrom to cover an eight by ten inch area; and the defendant's practice to remove fallen produce only after the entire "float" had been unloaded. Additionally, the plaintiffs argue that if the defendant's employee, Tumulo, dropped the beans, he knew or should have known of their presence.

Thirdly, plaintiffs argue that the defendant created the hazardous condition that caused Mrs. Denaux's injuries by its method of carrying on its business. Plaintiffs argue that the self-service loose mode used by defendants for the sale of produce, combined with defendant's practice of unloading produce from a float six feet from the counter to which it is carried, knowing that its employees often dropped produce while unloading, and waiting until the entire float was unloaded before cleaning the area, caused this hazardous condition. Pimentel v. Roundup Co., 100 Wash.2d 39, 666 P.2d 888 (1983).

The plaintiffs' reliance upon circumstantial evidence to prove negligence is sufficient under South Carolina law, as pointed out in Barnwell v. Elliott, 225 S.C. 62, 80 S.E.2d 748 (1954):

It is elementary that negligence may be established by circumstantial evidence. Thornton v. Seaboard Air Line Ry. Co., 98 S.C. 348, 82 S.E. 433; Watson v. Coxe Bros. Lumber Co., 203 S.C. 125, 26 S.E.2d 401. And in considering the sufficiency of such evidence, "the facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates." Leek v. New South Express Lines, 192 S.C. 527, 7 S.E.2d 459, 462. The fact that the doctrine of res ipsa loquitur is not applied in this jurisdiction does not mean that negligence may not be established by circumstantial evidence as well as direct evidence. Eickhoff v. Beard-Laney, Inc., 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1010. It is also important to bear in mind that the fact that an injury may have been caused in one of two or more ways does not preclude recovery, "if the facts and circumstances in evidence warrant a reasonable inference that it was caused in any way alleged in the complaint for which the master would be liable." Steele v. Atlantic Coast Line R. Co., 103 S.C. 102, 87 S.E. 639, 643.

While South Carolina law is relied upon to substantively establish the plaintiffs' cause of action, the standard as to the quantum of proof necessary to create a question of fact by circumstantial evidence is governed by Federal law. This standard has been set forth clearly by then Chief Judge Haynsworth in his opinion for the Fourth Circuit Court of Appeals in Wratchford v. S.J. Groves & Son Co., 405 F.2d 1061 (4th Cir.1969). In rejecting a claim that the plaintiff had failed to offer sufficient evidence and that the defendant was entitled to a non-suit if two equally strong conflicting inferences could be drawn from the circumstantial evidence produced, the Court held:

The federal standard may once have been the same as that which the District Court understood was applicable in the state courts of Maryland, but it no longer is. In Ford Motor Co. v. McDavid, 4 Cir., 259 F.2d 261, 266, we expressed it in the following language:

The old notion that a jury should not be allowed to draw any inference from circumstantial evidence, if the one is as probable as the other, has fallen into discard and has been replaced by the more sensible rule that it is the province of the jury to resolve

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