Lorinovich v. K Mart Corp., COA98-1038.

• Decision Date: 06 July 1999
• Docket Number: No. COA98-1038.,COA98-1038.
• Citation: 134 NC App. 158,516 S.E.2d 643
• Parties: Suzanne M. LORINOVICH and husband David A. Lorinovich, Plaintiffs, v. K MART CORPORATION, Defendant.
• Court: North Carolina Court of Appeals

516 S.E.2d 643

134 NC App. 158

Suzanne M. LORINOVICH and husband David A. Lorinovich, Plaintiffs, v. K MART CORPORATION, Defendant.

No. COA98-1038.

Court of Appeals of North Carolina.

July 6, 1999.

Richard F. Harris, III, Charlotte, for plaintiff-appellants.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Allen C. Smith and Leslie G. Martell, Charlotte, for defendant-appellee. GREENE, Judge.

Suzanne M. Lorinovich (Plaintiff) and David A. Lorinovich (Plaintiff husband) appeal from the trial court's order granting K Mart Corporation's (Defendant) motion for summary judgment.

Plaintiffs' complaint alleges Defendant was negligent in creating an unsafe condition by its method of stacking cans on a shelf over six feet high when it knew or should have known that the cans stored overhead might fall on a customer reaching for the merchandise. Plaintiff seeks damages for personal injury and Plaintiff husband seeks damages for loss of consortium. Defendant answered and denied it was negligent in any way, and if it had been negligent, Plaintiff's contributory negligence was a bar to recovery. On 15 January 1997, Defendant moved for summary judgment.

The undisputed evidence at the summary judgment hearing shows that on 19 May 1993, Plaintiff was shopping in the grocery department of Defendant's store for K & W Salsa. In the grocery department there were rows of shelves. The shelves on each row were stacked to a height of six feet, higher than the shelves at other stores in the area. On the top shelf on aisle four, Defendant had stacked sixteen-ounce cans of salsa on top of each other.

Before attempting to obtain the salsa, Plaintiff looked and did not see any ladders or personnel in the area. Because of her height of five feet and four inches, Plaintiff's reach was not sufficient to obtain a firm grasp on the can of salsa. In trying to retrieve the can, Plaintiff dislodged other adjoining cans, causing four or five of them to fall on top of her. One can hit her in the face and caused a laceration, which bled profusely, bruised her to the bone, and required nineteen stitches.

Defendant's store policy was to provide assistance to those needing help in retrieving merchandise off of the shelves and to securely fasten any merchandise displayed above eye level. The salsa cans were stacked above eye level and were not securely fastened.

There was evidence of seven prior incidents, from 1992 through April 1993, of "falling merchandise" injuring customers at the store. Five months before Plaintiff's injuries, another customer, Beth Parrish (Parrish), was injured in Defendant's store when she attempted to obtain a can of green beans stacked on a shelf six feet in height. As she reached for the green beans, other cans fell on top of her. At the time of the Parrish injury, an employee of Defendant completed an accident report describing her injuries as having been caused by "canned goods stacked too high for customer."

The dispositive issues are whether: (I) genuine issues of material fact exist as to Defendant's negligence in causing Plaintiff's injuries; and (II) genuine issues of material fact exist as to Plaintiff's contributory negligence.

I

Negligence

Traditionally in North Carolina, the standard of care a real property owner or occupier owed to an entrant depended on whether the entrant was an invitee, licensee, or trespasser. Newton v. New Hanover County Bd. of Education, 342 N.C. 554, 559, 467 S.E.2d 58, 63 (1996). The liability of the owner to an invitee was founded "upon the principles on which the law of negligence is predicated." Bohannon v. Stores Company, Inc., 197 N.C. 755, 759, 150 S.E. 356, 358 (1929). Thus, the landowner had a duty to "exercise reasonable care to provide for the safety" of the invitee. Id.; Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998) (landowner owed "duty of reasonable care" to invitee), reh'g denied, 350 N.C. 108, ___ S.E.2d ___ (1999). This required the landowner to take reasonable precautions to ascertain the condition of the property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform the invitee of any foreseeable danger. See Williams v. Stores Co., Inc., 209 N.C. 591, 596, 184 S.E. 496, 499 (1936); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 425-26 (5th ed.1984) [hereinafter Prosser and Keeton on Torts ]; Restatement (Second) of Torts § 343 cmt. b & d (1965). The landowner's duty to a licensee was less than the duty of reasonable care; it was simply to refrain from causing any willful injury and from recklessly exposing the licensee to danger. McCurry v. Wilson, 90 N.C.App. 642, 645, 369 S.E.2d 389, 392 (1988).

In Nelson, our Supreme Court eliminated the distinctions between licensees and invitees, and established "a standard of reasonable care toward all lawful visitors." Nelson, 349 N.C. at 631-32, 507 S.E.2d at 892 (adopting "a true negligence standard"). Thus the landowner now is required to exercise reasonable care to provide for the safety of all lawful visitors on his property, the same standard of care formerly required only to invitees. Whether the care provided is reasonable must be judged against the conduct of a reasonably prudent person under the circumstances. Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).

In this case, Plaintiff was a lawful visitor on Defendant's premises and thus Defendant owed her a duty to exercise reasonable care to provide for her safety. This required Defendant to take reasonable precautions to ascertain the condition of the property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform the invitee of any foreseeable danger. Our review of the evidence reveals a genuine issue of fact as to whether a reasonably prudent person, armed with knowledge that other people had been injured in the store when cans had been stacked on shelves higher than eye level and armed with knowledge that it was store policy not to stack items higher than eye level unless secured, would stack, unsecured, sixteen-ounce cans of salsa on shelves six feet off the...