Gall v. Great Atlantic & Pacific Tea Co.

• Decision Date: 12 June 1961
• Docket Number: No. 5248,5248
• Citation: 202 Va. 835,120 S.E.2d 378
• Court: Virginia Supreme Court
• Parties: MARY D. GALL v. THE GREAT ATLANTIC & PACIFIC TEA COMPANY. Record

Page 378

120 S.E.2d 378

202 Va. 835

MARY D. GALL v. THE GREAT ATLANTIC & PACIFIC TEA COMPANY.

Record No. 5248.

Supreme Court of Appeals of Virginia

June 12, 1961.

Lois H. Miller and Daniel I. Sherry, for the plaintiff in error.

Charles H. Duff and Norman F. Slenker (Jesse, Phillips, Kendrick & Gearheart, on brief), for the defendant in error.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

The plaintiff, Mary D. Gall, filed a motion for judgment against the defendant, the Great Atlantic & Pacific Tea Company, to recover damages arising out of personal injuries claimed by her to have been received as a result of the negligence of the defendant while she was in its store as an invitee. A jury returned its verdict for the defendant, on which the trial court entered judgment, and the plaintiff is here on a writ of error.

The plaintiff assigns as error the granting of defendant's instruction 'D' on contributory negligence, and the admission of testimony relating to the 'absence of prior accidents.'

The evidence shows that on Friday afternoon, September 19, 1958, the plaintiff, an employee of another chain grocery store for the past three years, entered the defendant's supermarket in the city of Falls Church to purchase a certain brand of coffee. While on her way to the shelves where the coffee was located she stopped in the produce department to look at the fruits and vegetables displayed there. She remained in this department approximately five minutes, and as she turned to leave the bin or table on which grapes were displayed she slipped and fell as the result of stepping on some grapes lying on the floor, causing her to suffer the injuries complained of. She did not look at the floor before stepping on the grapes and was unable to state how many were there.

Several other customers were in the produce department while the plaintiff was there, but she did not see any employee of the store until after she had gotten up from her fall. She then suggested to the employee that he sweep up the grapes, which he said he would do. She then walked to the coffee counter, got her package, and after that reported the incident to the store manager.

The defendant's store manager testified that there had been three other accidents in the store within the past twelve months on account of debris in the store's aisles. His testimony further shows that care was taken by the defendant and its employees to remove refuse which fell on the floor by sweeping the premises at least every hour, and often every ten to thirty minutes. There is no claim that the defendant's store was inadequately lighted or that anything concealed the grapes on the floor from plain view.

The plaintiff does not question the form of the contributory negligence instruction in the first assignment of error, but she contends that the evidence does not justify giving it. She argues that she had a right to assume, in the absence of warning, that the defendant had performed its duty to keep the premises in a reasonably safe condition for her visit and that she was not required to be on the lookout for dangerous obstacles or objects in the passage way or aisles that she had been expressly invited to use. She cites Montgomery Ward & Co. v. Young, 195 Va. 671, 676, 79 S.E.2d 858, 859; Raylass Chain Stores, Inc. v. DeJarnette, 163 Va. 938, 943, 178 S.E. 34, 35.

The law is well settled that it is the duty of the defendant to exercise reasonable care to keep its premises in a reasonably safe condition and to warn persons invited to use its premises of dangers which are known to it and unknown to the invitee, but such warning is not required where the dangerous condition is open and obvious, and is patent to a responsible person exercising ordinary care for his own safety; and that an invitee is not required to be on the lookout for dangers in the absence of knowledge or warning of danger. The defendant, however, is not an insurer of the plaintiff's safety. These principles were clearly and succinctly stated by Mr. Justice Eggleston, now Chief Justice, in Knight v. Moore, 179 Va. 139, 145, 146, 18 S.E.2d 266, 269, 270, and have been followed in numerous cases. While it is true that the plaintiff was not required to look constantly at the floor, she was not relieved of the duty to exercise ordinary care for her own safety and she cannot walk blindly into a dangerous condition which is open and obvious to a person in the exercise of ordinary care and then claim to be blameless. See Snyder v. Ginn, 202 Va. 8, 11, 116 S.E.2d 31, 33; Certified T.V. & Appliance Co. v. Harrington, 201 Va. 109, 116, 109 S.E.2d 126, 131, and cases there cited.

Instruction 'D' told the jury that if a reasonably prudent person would have seen the dangerous condition under the circumstances shown by the evidence, then the plaintiff should have seen it. The instruction merely stated that the standard of care required of the plaintiff was the same as that of a reasonably prudent person under similar circumstances. The plaintiff was an employee of another supermarket and sh...