G.C. Murphy Co. v. Greer

• Decision Date: 01 September 1987
• Docket Number: No. 1295,1295
• Citation: 75 Md.App. 399,541 A.2d 996
• Parties: G.C. MURPHY CO., t/a Murphy's Mart v. Coy E. GREER, et ux. ,
• Court: Court of Special Appeals of Maryland

Page 399

75 Md.App. 399

541 A.2d 996

G.C. MURPHY CO., t/a Murphy's Mart v. Coy E. GREER, et ux.

No. 1295, Sept. Term, 1987.

Court of Special Appeals of Maryland.

June 6, 1988.

James E. Clapp (Shoemaker, Horman & Clapp, P.A., on the brief), Frederick, for appellant.

John Wheeler Glenn (Donald J. Arnold, O'Connor, Preston & Glenn, P.A., Baltimore, Edwin F. Nikirk, II and Nikirk, Nikirk & Nikirk, Frederick, on the brief), for appellees.

Argued before WILNER, BLOOM and KARWACKI, JJ.

KARWACKI, Judge.

On December 19, 1985, Coy Greer, a retired dairy farmer, tripped and fell over an empty plastic carton in one of the aisles of the Ames Department Store in Frederick. The carton had been left there by the store's employees. The fall fractured Mr. Greer's hip. In a negligence action filed in the Circuit Court for Frederick County against appellant G.C. Murphy Co., the owner of Ames Department Store, appellee Coy Greer sought damages for his injury and was joined by his wife, the other appellee, in a claim for loss of consortium.

At the conclusion of the presentation of appellees' case at a jury trial of the action, appellant moved for judgment, asserting that Mr. Greer's failure to observe and avoid the empty plastic carton constituted contributory negligence as a matter of law barring appellees' recovery. Judge Edward Dwyer, Jr. reserved a ruling on the motion. When the appellant renewed its motion at the close of all the evidence, Judge Dwyer again reserved his ruling. The jury returned a verdict in the amount of $36,000 in favor of Coy Greer and a verdict in the amount of $10,000 in favor of Coy and his wife for loss of consortium. Judgment was entered on those verdicts.

This appeal followed the court's denial of appellant's motion for judgment n.o.v. and is concerned solely with the issue of whether Coy Greer was contributorially negligent as a matter of law.

The rule applicable to our review of the denial of a defendant's motion for judgment n.o.v. requires us to consider all of the evidence, as well as all natural and reasonable inferences deducible therefrom, in the light most favorable to the plaintiff. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 248-49, 272 A.2d 1 (1971); Safeway Stores, Inc. v. Bolton, 229 Md. 321, 326, 182 A.2d 828 (1962). A party is not entitled to judgment n.o.v. unless the facts and circumstances so considered are such as to permit of only one inference with regard to the issue presented. Impala Platinum Ltd. v. Impala Sales, 283 Md. 296, 327, 389 A.2d 887 (1978). We will therefore recount the facts in the light mandated by our scope of review.

On December 19, 1985, appellees, accompanied by their grandson, Mark Harrison, arrived at the Ames Department Store to purchase a kerosene heater. Earlier that morning, store employees had placed numerous plastic cartons containing merchandise in the aisles along the various display shelves in the store. During business hours, store employees replenished the shelves with items from the plastic cartons.

As they walked down the cosmetics aisle on their way to the kerosene heaters, Coy Greer followed approximately ten feet behind his wife and grandson, who were walking side by side. At the end of the aisle was a stack of cartons resting approximately one foot away from the edge of the display shelves. Next to this stack, in the middle of the aisle, was a single, empty carton. Both Mrs. Greer and her grandson stepped around the empty carton. Coy Greer, who was watching his wife and grandson, did not see the carton and tripped over it.

Coy Greer was seventy-five years of age at the time of the accident. He was blind in his right eye and wore glasses, but he testified that the vision in his left eye as corrected was not impaired at the time of the accident.

Appellant asserts that Coy Greer was contributorially negligent as a matter of law because he tripped over an empty carton that was in plain view. Appellant argues that Mr. Greer was required at all times to observe the floor of the department store aisle upon which he walked and to avoid objects obstructing his safe passage. It concludes that Greer's failure to do so constituted negligence which contributed to his fall as a matter of law. We do not agree.

Contributory negligence involves a failure to take proper precautions for one's own safety. Menish v. Polinger Co., 277 Md. 553, 558, 356 A.2d 533 (1976). It is defined as "conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm." Craig v. Greenbelt Consumer Services, Inc., 244 Md. 95, 97, 222 A.2d 836 (1966); Diffendal v. Kash and Karry Service Corp. 74 Md.App. 170, 173, 536 A.2d 1175 (1988). The question of whether a plaintiff...