Denton v. Winn-Dixie Greenville, Inc.

• Decision Date: 06 December 1993
• Docket Number: No. 2098,WINN-DIXIE,2098
• Citation: 312 S.C. 119,439 S.E.2d 292
• Parties: Elma D. DENTON, Respondent, v.GREENVILLE, INC., Appellant.
• Court: South Carolina Court of Appeals

Page 292

439 S.E.2d 292

312 S.C. 119

Elma D. DENTON, Respondent, v. WINN-DIXIE GREENVILLE, INC., Appellant.

No. 2098.

Court of Appeals of South Carolina.

Submitted Oct. 4, 1993.

Decided Dec. 6, 1993.

Danny C. Crowe, of Turner, Padget, Graham & Laney, Columbia, for appellant.

Kenneth G. Goode and Carol A. Tolen, both of Goode & Mueller, Winnsboro, for respondent.

BELL, Judge:

This is an action in negligence. Elma D. Denton sued Winn-Dixie Greenville, Inc., for injuries sustained when she fell in the parking lot of a Winn-Dixie grocery store. A jury returned a verdict in favor of Denton and awarded her actual damages of $10,000. Winn-Dixie moved for a judgment notwithstanding the verdict. The court denied the motion. Winn-Dixie appeals. We reverse.

The material facts are uncontroverted. Winn-Dixie built and maintained a cart "corral" in the parking lot of the grocery store. Patrons of the store were requested to return shopping carts to this area. The corral was formed by six yellow concrete dividers, each approximately six feet long and eight to ten inches high, that were placed in a U-shape. The corral was located within a parking space near the entrance of the store.

On August 20, 1990, at approximately 4:00 p.m., Denton left the Winn-Dixie grocery store and proceeded toward her car. As she approached her car, a fast moving vehicle came towards her down the lane between the parking spaces. The lane was wide enough to accommodate two cars passing each other. As she moved out of the path of the oncoming vehicle, Denton tripped and fell on a concrete divider at the edge of the cart corral. Denton's fall occurred during clear weather and daylight hours.

Denton, a regular customer of the store for at least five years, testified that she was aware of the cart corral prior to the accident, she had noticed the corral prior to entering the store the day of the accident, and that she had noticed the corral as she exited the store on the day of the accident. She further testified the concrete dividers were not hidden from her view. She failed to step over them in her haste to avoid the oncoming car.

A merchant is not an insurer of the safety of his customers but rather owes them the duty to exercise ordinary care to keep the premises in a reasonably safe condition. Felder v. K-Mart Corporation, 297 S.C. 446, 377 S.E.2d 332 (1989). He is not required to maintain the premises in such condition that no accident could happen to a patron using them. See Panoz v. Gulf & Bay Corporation, 208 So.2d 297 (Fla.App.), cert. denied, 218 So.2d 166 (Fla.1968); Gavin v. City of Chicago, 97 Ill. 66 (1880); Overton v. Wenatchee Beebe Orchard Co., 28 Wash.2d 377, 183 P.2d 473 (1947).

In Bruno v. Pendleton Realty Company, 240 S.C. 46, 124 S.E.2d 580 (1962), a customer in a shopping center tripped and fell on a five inch elevation where one walkway joined another. The Court noted the difference in the levels of the walkways but stated:

Generally, it is not negligence to maintain under appropriate circumstances, different levels in approaches to places of business. 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.... [A] step-down or a step-up upon premises does not, in and of itself, constitute negligence.

Id. at 51, 124 S.E.2d at 582 (citations omitted). ¹

In this case, the cart corral was in the parking lot to keep wayward grocery carts from interfering with pedestrian and vehicular traffic. It was foreseeable that grocery carts left by customers in...