Kimbrell v. Bi-Lo, Inc.

• Decision Date: 24 August 1966
• Docket Number: BI-L,INC,No. 18554,18554
• Citation: 150 S.E.2d 79,248 S.C. 365
• Parties: Carrie W. KIMBRELL, Respondent, v., Appellant.
• Court: South Carolina Supreme Court

Page 79

150 S.E.2d 79

248 S.C. 365

Carrie W. KIMBRELL, Respondent, v. BI-LO, INC., Appellant.

No. 18554.

Supreme Court of South Carolina.

Aug. 24, 1966.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Carter & Hill, Greenville, for respondent.

BUSSEY, Justice.

The plaintiff, Carrie W. Kimbrell, sustained a fall in a self-service grocery store operated by the defendant, Bi-Lo, Inc. This action for her injuries followed, and resulted in a verdict for $3500.00 actual damages. The defendant appeals from the refusal of its timely motions for a verdict by direction of the court and for judgment notwithstanding the verdict.

The complaint alleges that plaintiff, an elderly woman, entered the defendant's store as a customer, through swinging doors, onto a 'ramp-like structure with a precipitious incline,' of which there was no warning and which was not furnished with a handrail or other support; and that the ramp was 'raised above the actual floor level in varying heights and in a manner that could not be detected by plaintiff.' The complaint further alleges that the creation and maintenance of the condition complained of was negligent and reckless and resulted in injury to plaintiff.

The answer of the defendant denied the material allegations of the complaint and set up the defense of contributory negligence and willfulness.

The issues of recklessness and willfulness were eliminated at the trial and no exception has been taken. The sole issue here is whether the trial judge erred in refusing to direct a verdict for the defendant, either upon the ground that the evidence was insufficient to establish actionable negligence on its part, or upon the ground that plaintiff was contributorily negligent as a matter of law.

Access to defendant's store from the public sidewalk is through double doors, set in an eight foot opening, which swing inward. The elevation of the sidewalk is six inches above the floor level. The ramp, of which plaintiff complains, has been installed to accommodate this difference in elevation. It is a wedge like structure occupying the full width of the door opening and extending four feet into the store. The ramp is level with the sidewalk at the entrance and gradually declines to about one inch above floor level at its terminus inside the store. The surface of the ramp is formed by an 8 4 sheet of plywood. No signs or warning of any kind were displayed to attract attention to the ramp and it was not protected by a handrail or otherwise.

In considering the issues presented by the appeal, it is, of course, elementary that all of the evidence, as well as the inferences reasonably deducible therefrom, have to be viewed in the light most favorable to the plaintiff.

The plaintiff, an elderly woman, did not drive an automobile and was dependent upon other persons to take her grocery shopping, when and where it suited such people. She did not shop regularly at any one store, but had been in defendant's store some four to six times in the year or so preceding her accident. In shopping, she sometimes did not use a cart at all, and if one was used, it was usually gotten by the person who took her shopping. She had never before gotten a cart in the store of the defendant from the location, to the right of the entrance door, where all carts were on the day of the accident. On one or more occasions, she had gotten a cart from immediately in front of the cashiers' stands which were directly in front of the entrance door.

On the occasion of the accident, she knew that she needed a cart and there were none in front of the cashiers' stands. She entered through the lefthand door of a double door, the righthand door being at the time bolted. Had the righthand door not been bolted, it would have been available for the natural use of plaintiff and its dimensions were such that, swinging inward, it would have completely guarded the side of the ramp. But the lefthand door through which she had to enter swung inward and the moment she crossed the threshold there was nothing to prevent her from turning immediately to the right toward the only available carts.

With respect to the negligence of the defendant, it should have reasonably anticipated that a customer in entering the store would naturally first obtain a cart in which to place groceries selected for purchase. It knew, or certainly should have known, that the natural inclination of a customer on entering would be to take the most direct route to the location of the carts, and, in doing so, would likely leave the ramp before reaching the floor level, unless some guard or warning was provided to prevent it. The hazard which caused plaintiff's injury was stepping off the unguarded side of the ramp. While the issues of willfulness and recklessness were eliminated from the trial, and no exception to that ruling has been taken, it is, we think, strongly inferable from the testimony adduced from defendant's manager that it was aware of the fact that the unguarded ramp was a potentially dangerous hazard to its customers under the circumstances. In any event, there was ample evidence to support the submission to the jury of the question of negligence on the part of the defendant.

While the question of contributory negligence on the part of the plaintiff is a much closer one, we do not think it can be held, as a matter of law, that the plaintiff was guilty of contributory negligence. The determination of this question has to be arrived at in the light of the well settled principles recently stated by this court in Abeles v. Great Atlantic & Pacific Tea Co., 244 S.C. 508, 137 S.E.2d 604, as follows,

'It is a general rule that everyone has the right to presume that every other person will obey the law, and, in the absence of a reasonable ground to think otherwise, it is not negligent for one to presume that one is not exposed to danger arising only from violation of law or duty by another. Myers v. Evans, 225 S.C. 80, 81 S.E.2d 32; Flowers v. South Carolina State Highway Dept., 206 S.C. 454, 34 S.E.2d 769.

'Of course, this presumption to which plaintiff was entitled did not relieve or excuse her from exercising due care for her own safety, but in determining whether or not she was guilty of any failure to exercise such due care, her conduct has to be judged in the light of the foregoing presumption to which she is entitled. Caines v. Marion Coca-Cola Bottling Co., 198 S.C. 204, 17 S.E.2d 315. In this connection see also Harrison v. Atlantic Coast Line...