Gauldin v. Virginia Winn-Dixie, Inc.

• Decision Date: 09 December 1966
• Docket Number: No. 10564.,10564.
• Citation: 370 F.2d 167
• Parties: Leonard Allen GAULDIN, Appellee, v. VIRGINIA WINN-DIXIE, INC., etc., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

370 F.2d 167 (1966)

Leonard Allen GAULDIN, Appellee, v. VIRGINIA WINN-DIXIE, INC., etc., Appellant.

No. 10564.

United States Court of Appeals Fourth Circuit.

Argued October 6, 1966.

Decided December 9, 1966.

Edwin B. Meade, Danville, Va. (Meade, Tate & Meade, Danville, Va., on brief), for appellant.

Charles E. Carter, Danville, Va. (Mary H. Williams and Carter & Carter, Danville, Va., on brief), for appellee.

Before BOREMAN, J. SPENCER BELL and WINTER, Circuit Judges.

BOREMAN, Circuit Judge:

This is an action to recover damages for personal injuries which the plaintiff-appellee, Gauldin, suffered when he fell on the floor of a supermarket of Virginia Winn-Dixie (hereinafter Winn-Dixie or defendant), in Danville, Virginia. The jury returned a verdict for the plaintiff in the amount of $1,200.00 and on appeal defendant assigns as error the denial by the trial court of its motions for a directed verdict and its motion for judgment notwithstanding the verdict on the grounds that there was insufficient evidence to establish actionable negligence and, even assuming negligence on the part of Winn-Dixie, plaintiff is barred from recovery because of his contributory negligence.

The evidence reveals that at about noon on February 19, 1965, Gauldin, who was wearing shoes with metal heel taps or plates, entered the defendant's supermarket in order to purchase several items for his wife who remained outside in the car with their two small children. After selecting some grapefruit, Gauldin pushed his cart down the aisle to the egg counter, at which point he remembered that his wife wanted some vaseline or petroleum jelly. He left his cart at the egg counter and went back up the aisle proceeding over the same part of the floor he had traveled in going to the egg counter. After obtaining the desired item Gauldin was returning to his cart, again taking the path he had twice traversed, when he slipped and fell to the floor, landing on his lower back. An ambulance was called and he was removed on a stretcher.

Before the ambulance arrived plaintiff's wife was summoned to the store and she attempted to comfort her husband who was indicating extreme pain. While so occupied Mrs. Gauldin engaged in a brief conversation with several store employees as to the cause of her husband's fall. The evidence as to alleged statements and who made them is conflicting.

Mrs. Gauldin testified that one of the employees told her that her husband had slipped on some grapes or a radish on the floor. Gauldin testified that he heard this conversation and that the employee held up something that looked like a radish and said "this is what he slipped on."

Defendant's evidence is to the contrary. Both the assistant manager, Mr. Tuggle, and the employee in charge of the grocery department, Mr. Rowe, denied that they made any statements to Mrs. Gauldin concerning the cause of the accident. Neither plaintiff nor his wife could identify the person who made these statements but both stated that it was a third employee, and not Tuggle or Rowe. However, Rowe, who was working eight or ten feet from where Gauldin fell, testified that after Gauldin had been placed on the stretcher and was being taken to the ambulance a customer pointed out a radish which was under a "toe hold" of the egg counter. Rowe took the radish, which was somewhat mashed, to Mr. Tuggle. Tuggle, assisted by Rowe, immediately began an investigation to determine if any of the plastic radish bags were broken open or defective and to inquire of the check-out personnel to learn if they had observed either loose radishes or any customers opening containers. These efforts produced no pertinent information.

Winn-Dixie introduced evidence to show that it attempted to keep the aisles as clear as business and customer traffic would permit. Rowe stated that it was his duty to clean the grocery aisle every hour and to remove foreign objects whenever any were discovered; that he had swept the aisle twenty-five or thirty minutes prior to the accident and, at the time Gauldin fell, he, Rowe, was engaged in his duties tending the vegetable counter with his back turned toward the aisle. Rowe further testified that in the area where Gauldin fell there was a scrape mark on the floor and there was no slippery substance or evidence of a radish at this point. Defendant took the position that the mark was made by plaintiff's metal heel plate.

The basic question is whether there was sufficient evidence of negligence to create a question for the jury. We look to the laws of Virginia to determine the extent of the duty and degree of care which defendant, engaged in the business of operating a supermarket, owed to plaintiff as an invitee.

Under Virginia law it is well established that an owner or occupier of real property owes to an invitee the duty to exercise reasonable care to make the premises safe. However, such owner or occupier is not an insurer of the safety of the premises. He has a duty to warn of hidden dangers or defects in the premises but only to the extent that he has knowledge thereof or should, in the exercise of reasonable care, have such knowledge. When an invitee is injured because of some foreign substance or object on the floor of the premises the owner or occupant is not liable unless it can be shown that he had actual knowledge of the presence thereof or that in the exercise of reasonable care he should have known of its presence and failed in his duty to remove it. Shiflett v. M. Timberlake, Inc., 205 Va. 406, 137 S.E.2d 908 (1964); Colonial Stores, Inc. v. Pulley, 203 Va. 535, 125 S.E.2d 188 (1962); Great Atlantic & Pacific Tea Co. v. Rosenberger, 203 Va. 378, 124 S.E.2d 26 (1962); Safeway Stores, Inc. v. Tolson, 203 Va. 13, 121 S.E.2d 751 (1961); Gall v. Great Atlantic & Pacific Tea Co., 202 Va. 835, 120 S.E.2d 378 (1961); see generally 42 A.L.R.2d 1103, 1104.

This duty to use reasonable care to maintain the floors in safe condition applies even in cases where someone other than an employee of the establishment has caused foreign substances or objects to be spilled, dropped or placed on the floor. Great Atlantic & Pacific Tea Co. v. Rosenberger, supra, 124 S.E. 2d at 28. But the invitee has the burden of proving negligence by preponderant evidence and it devolves upon him to show that the owner or occupant either knew, or should have known by the exercise of...