Partin v. Great Atlantic & Pacific Tea Co.

• Citation: 102 N.H. 62,149 A.2d 860
• Parties: Leonita PARTIN v. GREAT ATLANTIC & PACIFIC TEA COMPANY.
• Decision Date: 07 April 1959
• Court: New Hampshire Supreme Court

Page 860

149 A.2d 860

102 N.H. 62

Leonita PARTIN v. GREAT ATLANTIC & PACIFIC TEA COMPANY.

Supreme Court of New Hampshire.

Argued March 3, 1959.

Decided April 7, 1959.

George R. Scammon, Exeter, and John B. Ford, Salem Depot, for plaintiff.

Burns, Bryant & Hinchey, Dover, Robert E. Hinchey, Dover, orally, for defendant.

DUNCAN, Justice.

The store in which the plaintiff was injured was described by her counsel as a 'small A & P superette,' in which customers followed a U-spaped course in making self-service purchases. Situated on the right of the righthand aisle were a produce department, a refrigerator where ice cream was apparently kept, soap rack, and a meat department.

The plaintiff, who was the only witness to testify at the trial, stated that she entered the store to make purchases, and traveled along the righthand aisle pushing a cart. As she entered the aisle she observed an employee of the store 'carrying a basket out to the back.' She testified that the basket was uncovered but that she did not see what was in it; and that when she had gone about three quarters of the way along the aisle, at a point opposite the soap rack: 'I just slipped and the carriage went to the back and I felt my leg under me.' Two employees came to her assistance and she continued on out of the store with her purchases. On the way out, the manager, who was in charge of operation of the store and of customer relations, said in substance: 'You fellows will have to be more careful when you take that stuff out. Somebody will get hurt.'

After the plaintiff had fallen she saw 'what she had slipped on,' 'when some of the boys picked it up with the dustpan.' It was 'grapes.' She testified that as a result of the fall she suffered injuries to her leg, back, and head for which she required medical care, and that in 1957 she suffered from phlebitis of the leg which she attributed to the accident.

At the conclusion of the plaintiff's testimony the plaintiff rested. The defendant's motion for a nonsuit, 'on the basis of the case of Jakel v. Brockelman [Bros.], 91 N.H. 453 ' was thereafter granted.

It is established law that a possessor of real estate is subject to liability for harm caused to invitees upon the premises, if the harm results either from the possessor's failure to carry on his activities with reasonable care or from his failure to remedy or to give warning of a dangerous condition of which he knows or in the exercise of reasonable care should know. Restatement of the Law, Torts, §§ 341, 343. 'Thus the occupier must use care not to injure the plaintiff by negligent activity, and also to warn him of latent perils * * *.' 2 Harper & James, Torts, § 27.12, p. 1487. See Lynch v. Sprague, 95 N.H. 485, 487, 66 A.2d 697; Monier v. Belzil, 97 N.H. 176, 83 A.2d 923; Brosor v. Sullivan, 99 N.H. 305, 109 A.2d 862.

The plaintiff's evidence furnished no basis for a finding that the grapes upon which she testified she slipped had remained upon the floor long enough so that the defendant could be found chargeable with knowledge of their presence and with negligent failure to remove them. Restatement, Torts, § 343, supra; Jakel v. Brockelman Bros., 91 N.H. 453, 21 A.2d 155. See also, Norton v. Hudner, 213 Mass. 257, 100 N.E. 546, 44 L.R.A.,N.S., 79; Goddard v. Boston & Maine Railroad, 179 Mass. 52, 60 N.E. 486. Cf. Hudson v. F. W. Woolworth Co., 275 Mass. 469, 176 N.E. 188. Thus to the extent that the plaintiff's right to maintain her action depended upon proof of injury from a dangerous condition which the defendant negligently failed to remedy the Trial Court correctly ruled that there was no issue for the jury.

The plaintiff contends however that the evidence warranted a finding that her injuries resulted from the defendant's negligent failure to carry on its activities upon the premises with reasonable care for her safety. Restatement of the Law, Torts, supra, § 341. Such negligence would constitute a recognized ground for recovery. Blackman v. Rowe, 96 N.H. 207, 72 A.2d 460. See James: Proof of the Breach in Negligence Cases, 37 Va.L.Rev. 179, 191: Annotation 63 A.L.R.2d 591, 639. 'It would be an anomaly to hold that one is not to be charged with notice of a condition arising from his own negligent act * * *.' Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243, 246. If the evidence warranted a finding of the defendant's causal negligence in removing refuse from the store, the plaintiff was entitled to go to the jury; and her counsel urged at the trial that there was evidence of 'improper exercise of care on the part of an employee * * * that there was not due care.'

We therefore consider whether there was evidence from which the defendant could reasonably be found guilty of causal negligence in the conduct of its activities. It appeared that refuse at the produce department was customarily accumulated in baskets or bags kept nearby in the aisle and removed from time to time to the rear of the store. The plaintiff testified that she saw one of the defendant's employees carrying such a basket to the rear of the store as she entered...