Norwood v. Sherwin-Williams Co.

• Decision Date: 08 July 1981
• Docket Number: No. 57,SHERWIN-WILLIAMS,57
• Citation: 279 S.E.2d 559,303 N.C. 462
• Parties: Marion C. NORWOOD v.COMPANY.
• Court: North Carolina Supreme Court

Page 559

279 S.E.2d 559

303 N.C. 462

Marion C. NORWOOD v. SHERWIN-WILLIAMS COMPANY.

No. 57.

Supreme Court of North Carolina.

July 8, 1981.

Watson, King & Hofler by Malvern F. King, Jr. and R. Hayes Hofler III, Durham, for plaintiff-appellant.

Haywood, Denny & Miller, by John D. Haywood and Charles H. Hobgood, Durham, for defendant-appellee.

Pollock, Fullenwider, Cunningham & Pittman, by Bruce T. Cunningham, Jr., Southern Pines, for North Carolina Academy of Trial Lawyers, amicus curiae.

CARLTON, Justice.

I.

Plaintiff filed this suit for serious personal injuries sustained when she tripped over a raised platform in defendant's store. The gravamen of plaintiff's claim was the alleged negligence of defendant and its agents in constructing the pallet without a kick board, in placing the platform in the store so that one of its corners extended several inches into the aisle, and in placing a display on the platform that drew the patrons' attention away from the floor and toward the display at approximately eye level. Defendant's answer denied negligence on its part, alleged that plaintiff's injuries were due solely to her own negligence in failing to keep a proper lookout and, as an alternative defense, alleged that plaintiff was contributorily negligent.

At trial plaintiff presented evidence which tended to show that she entered defendant's store shortly before noon on 9 November 1974 to purchase some art supplies for her daughter. After selecting the items she wished to purchase plaintiff walked toward some store employees and indicated that she wanted to pay for the goods. The employees motioned towards the cash register located at the rear of the store. To reach the check-out counter plaintiff walked down a crowded aisle about two and one-half feet wide which ran the length of the store from front to back. The floor along the sides of the aisle was cast in shadows. At the end of the aisle closer to the cash register was a raised pallet about three or four inches high on which a tall paint sprayer was displayed. The platform was approximately four feet square and had been placed "catty-cornered" to the aisle forming a diamond shape in relation to the aisle, and one of its corners protruded three to six inches into the aisle. As plaintiff reached the end of the aisle she was looking toward the cash register and cashier. Although she saw the platform and paint sprayer out of the corner of her eyes she did not realize that the platform protruded into the aisle or that it did not have a kick-board. As she passed the paint sprayer plaintiff's left foot caught on the corner of the platform, causing her to stumble. Plaintiff let out a cry of pain. The injury did not tear her hose and produced only a drop of blood, but was extremely painful. Believing her injury not to be serious, plaintiff paid for her purchases and left the store.

Later that day the top of plaintiff's foot became red and swollen and she was unable to place weight on it. The foot continued to swell and throb with pain and two days after the incident plaintiff visited the Watts Hospital Emergency Room. As a result of that visit plaintiff soaked her foot and wore an ace bandage but received no relief. Her foot and leg remained swollen, red and very painful. Over the months that followed plaintiff saw numerous doctors and was hospitalized several times for periods varying from a few days to almost two months and underwent several operations. Her condition was diagnosed as sympathetic or vasomotor dystrophy resulting from the injury to her foot. As a result of this condition, plaintiff's left leg and foot have atrophied and are smaller than her right leg and foot. Her left foot is now one and one-half inches shorter than her right foot. The muscles in her left foot have contracted and her toes have drawn up. Plaintiff is now able to walk but must use a special shoe and must wear a prosthetic stocking at all times, even when she sleeps. Although the pain and swelling have lessened, they are still present, and plaintiff is unable to work. Dr. Bassett, an orthopaedic surgeon at Duke University who treated plaintiff, testified that plaintiff has reached maximum improvement and her condition is permanent.

Defendant's evidence contradicted that presented by plaintiff in two significant points. The manager and assistant manager of the store testified that the aisles were wide, well-lit, and free of merchandise and that the platform on which the paint sprayer was displayed was placed parallel to the end of the counter and was not protruding into the aisle.

Defendant's motions for directed verdict at the close of plaintiff's evidence and at the close of all evidence were denied, and the case was submitted to the jury on three issues: defendant's negligence, plaintiff's contributory negligence and damages. The jury concluded that defendant was negligent and that plaintiff was not contributorily negligent and awarded plaintiff damages in the amount of $90,000. Defendant then moved pursuant to Rules 50(b) and 59 of the N.C.Rules of Civil Procedure for judgment notwithstanding the verdict and, in the alternative, for a new trial. Judge Herring granted defendant's motion for judgment notwithstanding the verdict, denied the alternative motion for new trial and entered judgment for the defendant.

The Court of Appeals affirmed the entry of judgment for the defendant. In an opinion by Judge Webb in which Judge Hedrick concurred, that court held that "all the evidence shows the plaintiff was contributorily negligent" because it showed that plaintiff failed to keep a proper lookout. 48 N.C.App at 536, 269 S.E.2d at 278. Judge Wells argued in dissent that the evidence taken in the light most favorable to the plaintiff showed that defendant designed the display to attract a customer's attention to the paint sprayer and away from the floor and that defendant gave no warning. Under these circumstances, the unsafe condition caused by the protruding platform was not obvious and plaintiff was not required "to anticipate that defendant's display would be mounted on a pedestal not flush with the floor, protruding in such a way that if she did not tiptoe around it, she might catch her foot underneath." Id. at 541, 269 S.E.2d at 280. Judge Wells concluded that the issue of contributory negligence was for the jury and that its verdict must stand.

Plaintiff gave notice of appeal of right to this Court on 3 October 1980.

Other facts pertinent to this decision will be set forth below.

II.

We first consider whether the Court of Appeals properly affirmed the trial court's entry of judgment notwithstanding the verdict in favor of defendant. That ruling was proper only if evidence at trial, when taken in the light most favorable to the plaintiff and with the benefit of all favorable inferences, either failed to create a prima facie case of defendant's negligence or established beyond question that plaintiff's own negligence caused her injuries. See Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973); Brokers, Inc. v. High Point City Board of Education, 33 N.C.App. 24, 234 S.E.2d 56, cert. denied, 293 N.C. 159, 236 S.E.2d 702 (1977).

A.

The legal duty owed by defendant to plaintiff depends upon her status as an invitee or licensee. Here, plaintiff was an invitee on defendant's premises because her purpose for entering the store was to purchase goods, Morgan v. Great Atlantic & Pacific Tea Co., 266 N.C. 221, 145 S.E.2d 877 (1966), and, as such, defendant owed to plaintiff the duty to exercise ordinary care to keep its store in a reasonably safe condition and to warn her of hidden dangers or unsafe conditions of which it had knowledge, express or implied, Long v. Methodist Home for Aged, Inc., 281 N.C. 137, 187 S.E.2d 718 (1972); Wrenn v. Hillcrest Convalescent Home, Inc., 270 N.C. 447, 154 S.E.2d 483 (1967). More apposite to this case, a proprietor owes its invitees the legal duty to maintain its aisles and passageways in such condition as a reasonably careful and prudent person would deem sufficient to protect its patrons while exercising ordinary care for their own safety. Harrison v. Williams, 260 N.C. 392, 132 S.E.2d 869 (1963). Failure to conform to this standard of care is negligence. W. Prosser, Law of Torts § 143 (4th ed. 1971).

Our review of the record indicates that plaintiff made out a prima facie case of a breach of defendant's duty to maintain its store premises in a reasonably safe condition and, therefore, that the issue of negligence was properly submitted to the jury. When taken in its most favorable light, plaintiff's evidence tends to show that defendant created an unsafe condition in its store by placing a platform at the end of a crowded aisle so that one corner of the pallet protruded three to six inches into the aisle. The pallet was raised about four inches from the floor and the plywood top overhung the base by three or four inches. There was no kick board to prevent plaintiff's foot from catching underneath the corner of the platform. The edges of the platform were not painted and were not readily distinguishable from the color of the floor. Plaintiff's evidence indicates that the lighting in defendant's store was poor and the areas at the edges of the aisles shadowy. The evidence also indicates that the display was designed to attract the customer's attention at eye level and away from the floor. Additionally, defendant's own evidence shows that certain small items known as "impulse items" were placed along the aisle counter and behind the cash register. The impulse items "are designed to attract the attention of a customer. They are placed high where (a customer's) eyes will follow them right in that back area where the wrapping counter is. They are designed to attract the attention of the customer." Plaintiff's evidence shows that defendant's employees built a raised platform and placed it so that one of its corners protruded into...