Powell v. Deifells, Inc.

• Decision Date: 14 January 1960
• Docket Number: No. 594,594
• Citation: 112 S.E.2d 56,251 N.C. 596
• Court: North Carolina Supreme Court
• Parties: Margaret S. POWELL v. DEIFELLS, INCORPORATED.

Page 56

112 S.E.2d 56

251 N.C. 596

Margaret S. POWELL v. DEIFELLS, INCORPORATED.

No. 594

Supreme Court of North Carolina.

Jan. 14, 1960

McLendon, Brim, Holderness & Brooks and Hubert B. Humphrey, Greensboro, for plaintiff, appellant.

Jordan, Wright, Henson & Nichols and William D. Caffrey, Greensboro, for defendant, appellee.

MOORE, Justice.

The decisive question on this appeal is whether or not the court erred in granting the motion for nonsuit.

Store owners are not insurers of the safety of customers on their premises. Copeland v. Phthisic, 245 N.C. 580, 582, 96 S.E.2d 697, 63 A.L.R.2d 587. And where a customer slips and falls in the aisle of a store the doctrine of res ipsa loquitur has no application. Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 733, 12 S.E.2d 242. But 'those entering a store during business hours to purchase or look at goods do so at the implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger and, (2) to give warning of * * * unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. ' Lee v. H. L. Green & Co., 236 N.C. 83, 85, 72 S.E.2d 33, 34. But when an unsafe condition is created by third parties or an independent agency it must be shown that it had existed for such a length of time that defendant knew or by the exercise of reasonable care should have known of its existence, in time to have removed the danger or given proper warning of its presence. Hughes v. Anchor Enterprises, 245 N.C. 131, 134, 95 S.E.2d 577, 63 A.L.R.2d 685; Brown v. Montgomery Ward & Co., 217 N.C. 368, 371, 8 S.E.2d 199.

It is our opinion, and we so hold, in the instant case that plaintiff's evidence makes out a prima facie case of actionable negligence. The floor was of asphalt tile, a substance impervious to water and slippery when wet. The manager of the store knew this. Because the floor was slippery when wet it was customary to put mats at the entrances and mop the floor with dry mops on rainy days. On the day plaintiff fell, it had rained all the morning and at times the rain was mixed with snow, facts of which defendant is in no position to deny knowledge. But on this day defendant neglected to mop the floor. The store had been open from two to three hours when plaintiff arrived. Customers had tracked in water. The floor was in a wet condition. When plaintiff fell there was water all around her and it extended back to the entrance. This condition was observed by the man in charge of the ambulance when he arrived. There is a reasonable inference that the water had begun to accumulate on the floor from the time the store opened for business. Indeed, this is borne out by the testimony of the clerk, Miss Collins. Defendant gave plaintiff no warning of the danger and took no steps to remove it. As to whether defendant's conduct under the circumstances constituted actionable negligence is a question for the twelve.

Flora v. Great Atlantic & Pacific Tea Co., 1938, 330 Pa. 166, 198 A. 663, 665, is quite similar. Plaintiff slipped and fell on a smooth linoleum floor where water and slush had been brought in on the shoes of customers. At two-hour intervals the floor was mopped and sawdust placed thereon. Plaintiff slipped at a place from which the sawdust had been swept about 55 minutes earlier but had not been replaced. In discussing the situation there presented the Court said: '* * * (W)e hold that it is not placing an unreasonable burden upon the owner of a store to take greater safeguards than were taken in this case to protect customers against falls * * * The floor of the store was covered with smooth linoleum which had, as one witness described it, 'a slippery disposition.' * * * It was shown that it was defendant's practice in bad weather to strew either an antislip compound or sawdust on the floor, to prevent slipping. This indicates that defendant was aware of a floor condition which might cause injury to its customers. That this condition could have been obviated by comparatively inexpensive attention is too clear to require argument. * * * Slipping on wet linoleum is of such frequent occurrence that those who have linoleum on the floors of their stores, and who permit it to become and remain wet, cannot successfully plead that such a fall as the minor plaintiff sustained was not foreseeable.'

Another case in point is Lyle v. Megerle, 1937, 270 Ky. 227, 109 S.W.2d 598, 599. Plaintiff slipped on melted snow and slush which had accumulated on the tile floor of a butcher shop. The Court sustained defendant's motion for a peremptory instruction. In reversing the ruling below, the Appellate Court said: 'The snow had been melting throughout the day and many people were on the streets. The store had been open since 7:30 o'clock in the morning and the slush had been tracked in by customers. It was muddy and sooty. The accumulation on the tile floor was very slick. * * * The case is different from that line of cases where some object causing an injury to a customer had fallen or been placed upon the floor by a third person and had remained there momentarily or for so brief a time that the proprietor was not required to take notice of its presence, or he had had no opportunity to remove or guard against it. It is distinguishable also from the cases relied upon by the appellee where persons were injured through slipping on ice or slush on outside steps, or in entrance ways outside the storeroom, * * * The smooth surface and impervious quality of tile makes the accumulation of such substance as described in this case a situation from which such an accident should well have been anticipated. It would be an extreme view to take that reasonable men could not have foreseen the possibility of a customer slipping on slushy snow on a smooth tile floor.'

The holding in Flora and Lyle, supra, is the majority view. Cases factually and legally comparable are: Taylor v. Northern States Power Co., 1935, 196 Minn. 22, 264 N.W. 139; Laskey v. First Nat. Stores, Inc., 1945, 317 Mass. 624, 59 N.E.2d 259; Yeager v. Chapman, 1951, 233 Minn. 1, 45 N.W.2d 776, 22 A.L.R.2d 1260; Clark v. Lansburgh & Bro., D.C.D. of C.1941, 38 F. Supp. 729; Great Atlantic & Pacific Tea Co. v. McLravy, 6 Cir., 1934, 71 f.2d 396. For full discussion, annotations and...