Garner v. Atlantic Greyhound Corp., 380

• Decision Date: 29 April 1959
• Docket Number: No. 380,380
• Citation: 108 S.E.2d 461,81 A.L.R.2d 741,250 N.C. 151
• Parties: , 81 A.L.R.2d 741 Florence GARNER v. ATLANTIC GREYHOUND CORPORATION and Hal M. O'Brien, t/a Cardinal Gift Shop.
• Court: North Carolina Supreme Court

Page 461

108 S.E.2d 461

250 N.C. 151, 81 A.L.R.2d 741

Florence GARNER v. ATLANTIC GREYHOUND CORPORATION and Hal M. O'Brien, t/a Cardinal Gift Shop.

No. 380

Supreme Court of North Carolina.

April 29, 1959

Charles F. Lambeth, Jr., Thomasville, for plaintiff, appellee.

DeLapp & Ward, Lexington, for defendant, appellant.

MOORE, Justice.

Defendant's only assignment of error, except to the signing of the judgment, was to the failure of the court to sustain his motions for judgment of involuntary nonsuit. The sole question for decision here is whether upon the evidence the defendant, shopkeeper, failed in his duty to plaintiff, customer.

The duty of a shopkeeper with respect to the safety of customers is as stated in Lee v. H. L. Green & Co., 236 N.C. 83, 85, 72 S.E.2d 33, 34, as follows:

'Those entering a store during business hours to purchase or look at goods do so at the implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger, and (2) to give warning of hidden dangers or unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64 (and other cases there cited).

'However, such proprietor is not an insurer of the safety of customers and invitees who may enter the premises, and he is liable only for injuries resulting from negligence on his part. Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; Bowden v. S. H. Kress & Co., [198 N.C. 559, 152 S.E. 625].' See also Little v. Wilson Oil Corp., 249 N.C. 773, 776, 107 S.E.2d 729, and Sledge v. Wagoner, 248 N.C. 631, 635, 104 S.E.2d 195.

'The proprietor of a place of business which is kept open to public patronage is obligated to keep the approaches and entrances to his store in a reasonably safe condition for the use of customers entering or leaving the premises. The proprietor, however, is not under an insurer's liability in this respect. To hold a storekeeper liable in damages for injury to a customer who fell at the entrance to the store, the customer must show a failure on the part of the storekeeper to exercise reasonable care for the safety of customer.' 38 Am.Jur., Negligence, Sec. 134, p. 795; Annotations 33 A.L.R. 222; 162 A.L.R. 986; 31 A.L.R.2d 177.

'The fact that the proprietor of a store is a lessee of the premises upon which it is located in no way lessens his duty of keeping the premises reasonably safe for his customers.' 38 Am.Jur., Negligence, Sec. 131, p. 791.

The doctrine of res ipsa loquitur has no application to a case in which recovery is sought for injuries received in a fall upon or from the entryway of a shop or store. In Markman v. Fred P. Bell Stores Co., 1926, 285 Pa. 378, 132 A. 178, 179, 43 A.L.R. 862, the Court said: 'It is first insisted that plaintiff failed to establish any actionable negligence on the part of the defendant. The burden rested upon her, for its presence is not to be presumed from the mere fact that the injury was caused by the fall at the entrance of the store. Chapman v. Clothier, 274 Pa. 394, 118 A. 356. The doctrine of res ipsa loquitur does not apply in such cases and the fact that damage was occasioned by some breach of duty must be affirmatively proved. (Citing cases.) ' See also Lee v. H. L. Green & Co., supra; Fanelty v. Rogers Jewelers, Inc., 230 N.C. 694, 699, 55 S.E.2d 493; Broadston v. Beddeo Clothing Co., 1920, 104 Neb. 604, 178 N.W. 190; Annotation 33 A.L.R. 197 et seq.

In the instant case, in determining whether there was some breach of duty on the part of the defendant, the plaintiff is entitled to have the evidence considered in the light most favorable to her and to have the benefit of every reasonable inference of fact to be drawn therefrom. Primm v. King, 249 N.C. 228, 234, 106 S.E.2d 223. But the evidence is to be considered within the framework of the allegations of the complaint. There must be both allegation and proof. Wilkes Poultry Co. v. Clark Trailer & Equipment Co., 247 N.C. 570, 572, 101 S.E.2d 458.

The substance of plaintiff's allegations of defendant's negligence is that defendant knew, or in the exercise of due care should have known, of the defective, 'dangerous and ruinous' condition of the entryway and failed to correct the condition. It is alleged that the entryway was dangerous and defective in that: (1) it sloped from the doorway of the store toward the sidewalk; (2) the sloping surface was slippery and uneven; (3) at the sidewalk it 'fell off vertically,' at varying distances up to 6 inches; (4) the sloping entryway had the appearance of going straight into the sidewalk, creating an optical illusion and camouflaged effect, and constituted a latent defect; (5) no handrails or supports were provided along the slope; and (6) no warnings were posted.

There is no allegation or evidence that the entryway was worn, broken or structurally imperfect, nor that it was wet or had any foreign substance thereon. There was no testimony that the plaintiff either slipped or tripped upon the entryway. Plaintiff's evidence is to the contrary. Therefore the allegation that the entryway was defective in that it was slippery and uneven is to be disregarded.

It is true that the entryway at the door was slightly more than 7 inches higher than at the sidewalk and the slope was about 19%. This circumstance alone does not render it dangerous and does not constitute negligent construction or maintenance. In Fanelty v. Rogers Jewelers, Inc., supra [230 N.C. 694, 55 S.E.2d 497], the slope was much less, one-half inch per foot, and the Court said: '* * * the fact that the surface of the terrazzo flooring was smooth and sloped downward from the entrance door to the sidewalk was insufficient of itself to show negligent construction of the entryway. ' In Hogan v. Metropolitan Building Co., 1922, 120 Wash. 82, 206 P. 959, it was held that defendant was not negligent in constructing and maintaining an entrance which had a slope of 11 inches in 7 1/2 feet. In Mullen v. Sensenbrenner Mercantile Co., Mo.1924, 260 S.W. 982, 984, 33 A.L.R. 176, the entrance sloped about one inch per foot and the Court said: 'Such entrances are usual in business buildings, as much or more so than steps. We therefore hold that the slope of said incline of itself was no evidence of negligence. ' In Schaefer v. De Neergaard, 1921, 196 App. Div. 654, 188 N.Y.S. 159, the main contention of the plaintiff was that the ledge at the entrance should have been level or about level. Its slope was about 15% or 4 1/2 inches in 2 feet and 10 inches. The Court held that there was a total absence of proof of negligence. The only case, which has come to our attention, that holds the mere slope of an entryway evidence of negligence to be submitted to the jury is Long v. John Breuner Co., 1918, 36 Cal. App. 630, 172 P. 1132. In that case the slope was at places as much as 50%. In Lunny v. Pepe, 1933, 116 Conn. 684, 165 A. 552, the elevation of a ramp inside a building was considered so slight (one inch per foot) as to appear to be level. Dimness of light and sameness of appearance and color were other factors considered. Slope alone was not the basis for the decision In an Utah case the elevation of the entrance was considered only in connection with another factor. The Court said: 'While it is true that the construction and maintenance of the entranceway of terrazzo on an inclined plane does not of itself constitute negligence, it comes within the rule that a negligent act may be one which 'creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person, an animal or a force of nature.' ' De Weese v. J. C. Penney Co., 1956, 5 Utah 2d 116, 297 P.2d 898, 901.

In the instant case the sloping of the entryway cannot be said to constitute negligence in and of itself. As we understand the testimony, plaintiff does not contend that her fall resulted from the slope of the entrance as such. It would seem that her contention is that the sloping was a part of what she termed 'an optical illusion.'

The complaint alleges that the perpendicular drop-off or step-down from the entryway to the sidewalk constituted a dangerous condition, especially in view of the grade of the sidewalk and the fact that the drop-off varied in height.

This Court in Reese v. Piedmont, Inc., 240 N.C. 391, 395, 82 S.E.2d 365, 368, quoting from Benton v. United Bank Building Co., 223 N.C. 809, 813, 28 S.E.2d 491, said: 'Generally, in the absence of some unusual condition, the employment of a step by the owner of a building because of a difference between levels is not a violation of any duty to invitees. ' In the Reese case the step in question was 7 3/4 inches high. In the Benton case the step-down was six inches. In Haddon v. Snellenburg, 1928, 293 Pa. 333, 143 A. 8, it is said: 'It is not negligence per se or negligent construction in a store or other public place to have one floor at a lower level by a few inches than another. ' Here the difference in levels was six inches. In Garret v. W. S. Butterfield Theatres, Inc., 1933, 261 Mich. 262, 246 N.W. 57, 58, there was 4 1/2 inch step-down. The Court stated: 'Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. ' The same principles are declared in the following cases: Boyle v. Preketes, 1933, 262 Mich. 629, 247 N.W. 763; Kern v. Great Atlantic & Pacific Tea Co., 1924, 209 App.Div. 133, 204 N.Y.S. 402; Watkins v. Piggly Wiggly Bird Co., 8 Cir., 1929, 31 F.2d 889; and Sterns v. Highland Hotel Co., 1940, 307 Mass. 90, 29 N.E.2d 721.

In Hoyt v. Woodbury, 1909, 200 Mass. 343, 86 N.E. 772, 773, 22 L.R.A.,N.S.,...