Howard v. K-Mart Discount Stores
| Decision Date | 16 June 1987 |
| Docket Number | No. 0992,K-MART,0992 |
| Citation | 359 S.E.2d 81,293 S.C. 134 |
| Court | South Carolina Court of Appeals |
| Parties | Dorothy G. HOWARD, Respondent, v.DISCOUNT STORES, Appellant. . Heard |
William M. Grant, Jr., and H. Sam Mabry, III, both of Haynsworth, Marion, McKay & Guerard, Greenville, for appellant.
C. Carlyle Steele, of Warder & Steele, Greenville, for respondent.
Dorothy G. Howard commenced this "slip and fall" action against K-Mart Discount Stores, alleging K-Mart negligently kept its floor in an unsafe condition, proximately causing Howard's fall and subsequent injury. A jury returned a verdict for Howard of $1,000.00 actual damages and $1,000.00 punitive damages. The trial judge denied K-Mart's motions for a directed verdict, judgment n.o.v. and a new trial. K-Mart appeals. We reverse.
Howard entered K-Mart on the morning of December 24, 1984. She testified that as she approached the store there was "a sprinkle of rain, just enough to make you open an umbrella." Upon entering the store and taking a step or two, her "heel just slid out from under" her and she fell, landing on her left hip. The K-Mart manager and a cashier immediately helped her up, and after a few minutes she continued her shopping. She testified that her leg soon began to swell, bruise, and ache. Later that day her neighbor, a nurse, took her to a hospital emergency room for treatment. She testified that her doctor advised her not to work for a week, although she stayed away from work only one day. She testified that her leg hurt for two months and she limped for six weeks, with the pain and bruise lessening gradually over that period of time.
Howard filed suit in October 1985, alleging K-Mart was negligent in failing to put floor mats down, in failing to keep the floor from becoming extremely slick, in waxing the floor to a "glass like slickness" which constituted a hazard, and in failing to warn of the dangers. She prayed for actual and punitive damages. K-Mart denied negligence and alleged Howard was contributorily negligent. Following a jury trial, Howard received a verdict for $1,000.00 actual damages and $1,000.00 punitive damages. K-Mart appeals on several issues.
K-Mart first argues that Howard presented insufficient evidence of negligence to present a jury question. We agree.
It is established law in this jurisdiction that a merchant is not an insurer of the safety of his customers, but rather owes his customer the duty to exercise ordinary care to keep his premises in a reasonably safe condition. Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 343 S.E.2d 636 (Ct.App.1986); House v. European Health Spa, 269 S.C. 644, 239 S.E.2d 653 (1977). Judging from Howard's pleadings and evidence presented at trial, which consisted solely of her own testimony, the alleged negligence arose from waxing the floor until it was extremely slick and then neglecting to place floor mats. We note that Howard does not allege negligence on the part of K-Mart in failing to discover or warn of the presence of foreign substances on the floor. Howard testified that there was no water or foreign matter on the floor or on her shoes.
The evidence necessary to show a merchant's negligence for slippery wax or finish on a floor differs from the showing necessary where the presence of foreign substances is alleged. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). The mere fact that a floor is waxed does not constitute evidence of negligence, nor does the fact that one slips and falls on a floor indicate negligence. Case v. Cato's of North Carolina, Inc., 252 N.C. 224, 113 S.E.2d 320 (1960); Grimes v. Home Credit Co. of Kinston, 271 N.C. 608, 157 S.E.2d 213 (1967). The plaintiff must show the owner was negligent in the materials used to wax the floor or in the manner of application, which constituted the proximate cause of the injury which could not have been avoided by the plaintiff through the exercise of ordinary care. Grimes v. Home Credit Co. of Kinston, supra; Rarus v. J.C. Penney Co., 39 Ill.App.2d 42, 187 N.E.2d 529 (1963); Alterman Foods, Inc. v. Ligon, ...
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Bryant v. Washington
...on the floor. The mere lack of warning signs is insufficient to prove liability in a slip and fall case. See Howard v. K-Mart Discount Stores, 359 S.E.2d 81, 83 (S.C. Ct. App. 1987). Plaintiff has not produced sufficient evidence to create a genuine issue of material fact that the Defendant......
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...I. in Tort to Invitees Fast Fare relies primarily on the cases of Howard v. K-Mart Discount Store, 293 S.C. 134, 359 S.E.2d 81 (Ct.App.1987) and Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 343 S.E.2d 636 (Ct.App.1986). In Howard the court held, "Testimony that a floor was slick, wi......
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...was unsafe. I've heard no testimony at all except she stepped in the area and slipped down. Case of Howard versus K-Mart [293 S.C. 134, 359 S.E.2d 81 (Ct.App.1987) ] almost directly on point[.] In that case, there was testimony about a slick floor. In that case the Supreme Court [sic] said ......
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