Higdon v. Georgia Winn-Dixie, Inc.

Decision Date20 October 1965
Docket NumberNo. 1,Nos. 41563,41564,INC,WINN-DIXI,s. 41563,1
Citation112 Ga.App. 500,145 S.E.2d 808
PartiesLucille W. HIGDON v. GEORGIA, et al. John T. HIGDON v. GEORGIA, et al
CourtGeorgia Court of Appeals

Syllabus by the Court

1. The petition sets out a cause of action for injuries received as the result of an allegedly malfunctioning apparatus for the storage of bottled drinks which ejected a bottle from a carton causing it to break when it fell to the floor with resulting injuries to the plaintiff. It does not set out a cause of action attempted to be based on res ipsa loquitur, since this doctrine may not be applied to pleadings.

2. Statements that the defendant owned a grocery store, that the plaintiff was shopping in the store, and that her injuries were sustained in a part of the store where merchandise was being offered for sale are sufficient to characterize the plaintiff as an invitee rather than a licensee.

3. A petition alleging negligence but failing to set out the specific acts of negligence on which recovery is predicated is subject to special but not general demurrer.

These companion cases seek damages on behalf of Lucille Higdon and her husband for injuries sustained by Mrs. Higdon while a customer in a store owned by Georgia Winn-Dixie, Inc. allegedly resulting from its negligence in maintaining a defective soft drink storage rack installed and serviced by the defendant Savannah Coca-Cola Bottling Company. General demurrers of each defendant were sustained in both cases, and the plaintiffs except.

Pierce, Ranitz & Lee, Andrew J. Ryan, III, Savannah, for plaintiff in error.

Perry Brannen, W. Ward Newton, Savannah, for other plaintiff in error.

Bouhan, Lawrence, Williams & Levy, Walter C. Hartridge, II, Brannen, Clark & Hester, for defendant in error.

DEEN, Judge.

1. Mrs. Higdon's petition is brought in five counts, each of which states that the owner of the supermarket allowed the other defendant to install an apparatus for the stacking, display and sale of paper cartons of soft drinks. This consists of retractable plastic-like shelves supported, when extended, only by cartons of beverages stacked immediately beneath them and held down, when extended, only by the weight of cartons resting on top of them. As cartons are removed the shelf forcefully springs backward in a reverse roll-up until stopped by contact with another carton or with the wall. While this plaintiff was shopping in the store, another customer lifted a paper carton of Coca-Cola from the top roll-back shelf of the stack of beverages, and as she did so a bottled Coca-Cola fell to the floor, exploded, and embedded pieces of glass in the plaintiff's ankle. Negligence is alleged against the Coca-Cola bottling company in:

'(a) Installing and maintaining in the heavily shopped store a malfunctioning apparatus with a retractable plastic-like shelf which would eject a bottle of carbonated beverage from a paper carton in a manner that would allow the bottle to explode and injure your petitioner who innocently stood nearby.

'(b) Failing to construct and maintain its display-dispensing apparatus in a manner that would have prevented its malfunction to the extent that would eject a bottle of its carbonated beverage which would explode and injure your petitioner.

'(c) Failing to provide and maintain a safe storage and display and dispensing device which could be operated by a customer without endangering and causing bodily harm to your petitioner who innocently stood nearby at the time.

'(d) Failing to maintain its property and sales facilities in a reasonably safe condition.

'(e) Failing to warn customers of the effect and resulting danger that would result from the forceful snap-back roll-back of the retractable plastic-like shelf upon its product being lifted from the top thereof.

'(f) Stacking in its apparatus paper-like cartons of carbonated beverages four and one-half feet high, a height greater than was reasonable and prudent.

(g) Failing to exercise ordinary care for the safety of its customers who undertook to purchase its products which it displayed and offered for sale.'

The store is charged with negligence in allowing the other defendant to install, construct and maintain the machine, in failing to require it to maintain a safe dispensing device and to maintain its property in safe condition, in allowing it to stack cartons to a height of four and a half feet which was greater than was reasonable and prudent, and in failing to keep the store premises safe. All counts are identical except for paragraph 17. Count 1 alleges that a bottle of carbonated beverage which was ejected from the stack was negligently lifted from a paper carton in the tier beneath as the plastic shelf snapped back upon the customer lifting a carton of beverages from ths shelf. In count 2 it is alleged that the shelf rolled back with such force as to strike a carton and throw a bottle from it, the bottle being 'ejected from the stack.' In count 3 plaintiff says the bottle which was ejected was thrown from the carton being lifted up by the customer when that carton was struck by the roll-back shelf. Count 4 describes the apparatus as a dangerous instrumentality known to be such by the defendants because bottles had been ejected therefrom on two previous occasions. Count 5 is predicated on res ipsa loquitur.

(a) As to the first three counts, the defendants are entirely correct in their contentions that the petitions must be construed against the plaintiffs, and that if, so construed, it appears that the unknown customer who lifted the carton from the shelf was negligent and that her negligence caused one of the bottles to fall to the floor, the plaintiffs are not entitled to recover from these defendants, and that the negligence of such an intervening agency...

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15 cases
  • Standard Oil Co. v. Harris, s. 44523
    • United States
    • United States Court of Appeals (Georgia)
    • December 5, 1969
    ...the intervening agency as constituting proximate cause, and will not prevent recovery from the other defendant. Higdon v. Ga. Winn-Dixie, Inc., 112 Ga.App. 500, 145 S.E.2d 808. This is particularly applicable where the negligence of one defendant is static, and that of another is active. In......
  • Aretz v. United States
    • United States
    • U.S. District Court — Southern District of Georgia
    • June 23, 1977
    ...which is only remotely and slightly probable. Covington v. S. H. Kress & Co., 102 Ga.App. 204, 115 S.E.2d 621; Hidgon v. Georgia Winn-Dixie, Inc., 112 Ga.App. 500, 145 S.E.2d 808. The causal connection between the original negligence and the injury is not broken by the intervening act of a ......
  • Hodge v. Dixon, 43997
    • United States
    • United States Court of Appeals (Georgia)
    • March 14, 1969
    ...sole proximate cause unless it is a 'normal reaction to the stimulus of a situation created by negligence.' Higdon v. Ga. Winn-Dixie, Inc., 112 Ga.App. 500, 503, 145 S.E.2d 808. See also Piller v. Hanger Cab Co., 115 Ga.App. 260, 154 S.E.2d 420; Millirons v. Blue, 48 Ga.App. 483, 173 S.E. 4......
  • Beam v. Omark Industries, Inc.
    • United States
    • United States Court of Appeals (Georgia)
    • July 8, 1977
    ...which is based in tort, not contract law. Kuhr Bros. v. Spahos, 89 Ga.App. 885, 888(2), 81 S.E.2d 491; Higdon v. Georgia Winn-Dixie, Inc., 112 Ga.App. 500, 504, 145 S.E.2d 808. Accordingly, as the retailer had a duty to warn potential users of the "stud gun" of necessary safety precautions ......
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