Raper v. McCrory-McLellan Corp., CRORY-M

• Citation: 130 S.E.2d 281,259 N.C. 199
• Decision Date: 10 April 1963
• Docket Number: CRORY-M,No. 252,252
• Parties: May Belle Narron RAPER v. MccLELLAN CORPORATION.
• Court: United States State Supreme Court of North Carolina

Page 281

130 S.E.2d 281

259 N.C. 199

May Belle Narron RAPER v. McCRORY-McLELLAN CORPORATION.

No. 252

Supreme Court of North Carolina.

April 10, 1963

Narron, Holdford & Holdford by Talmadge L. Narron, Wilson, for plaintiff-appellant.

Gardner, Connor & Lee by Raymond M. Taylor, Wilson, for defendant-appellee.

PARKER, Justice.

Plaintiff's evidence is as follows:

Defendant operates a variety store in the town of Wilson, North Carolina. Customers are invited to shop on the ground floor and on the basement floor. The two floors are connected by a stairway. Fifteen or twenty steps down this stairway from the ground floor there is a small landing, and there are two or three steps from the landing to the basement floor. There is a double handrail down the center of the stairway and a handrail next to the wall on the left 'as you go down.' The steps of the stairway were covered with rubber treads of nonskid type, 'dark reddish' or yellow in color.

'Close to night' on Christmas Eve 1960 plaintiff went into defendant's store to shop. She did some shopping on the ground floor and decided to go downstairs to the basement floor. The stairway was lighted with a very bright fluorescent light from the ceiling: it was lighter on the stairway than it would be in the daytime on a clear day. She started down the left aisle of the stairway, and had a handrail on her right and one on her left. She was using both of them. Her two small children were following her. No other person was on the stairway at the time.

Plaintiff testified: 'I went down the steps and got to the landing. And when I started to step off I stepped in something, slimy mess and slipped down. * * * There was no one standing on the landing. There was no covering over the slimy substance that I referred to. There was no barricade around the slimy substance. * * * When I slipped on the landing I had taken one step off the bottom step. * * * I did not see any little colored girl or colored lady about the landing as I came down the steps. I did not meet any small colored child or colored lady as I came down the steps.'

Plaintiff got up, walked down the steps to the basement floor, and took a seat in the shoe department, a few feet from the stairway. Mrs. Mary Jane Deans works in the shoe department. Plaintiff testified, without objection, that Mrs. Deans 'got the alcohol and rubbed my ankle with it and told me she saw a little girl sitting down there sick and vomited on the floor, and a lady, her mother, took and carried her upstairs.'

Plaintiff did not see what she stepped in before she slipped down in it. After slipping down she looked at it. The 'puddle' was about six inches across. Plaintiff testified on cross-examination: 'Just before I got to the bottom step, I looked at the floor but I didn't see the slimy mess on the floor when I stepped down. The puddle was right near the step, about a foot from the step and about eighteen inches from the wall.'

Plaintiff, after her fall, bought a set of curtains in the basement, went upstairs, and returned home. She sustained a broken bone in her ankle as a result of her fall.

Plaintiff offered in evidence the adverse examination by her of Mrs. Mary Jane Deans, who was employed by defendant as saleslady and floor supervisor of the basement floor department of its store. The substance of her testimony, as far as relevant on this appeal, is as follows:

Her duties were to see that customers were waited on, to help customers herself, and to supervise the clerks at the twelve or more counters in the basement. The employees were instructed as a part of their responsibilities that if they saw anything on the floor to call the stock boy to get it up, and to put paper over it until he could get it up. During the Christmas Season there was a clerk at each counter, and she was working the cash register. The cash register was on the counter nearest the steps. When she was at the cash register, she was about six feet from the stairway and facing it. The landing plaintiff fell on is about three steps up from the basement floor. She saw plaintiff fall on the landing. At the time some other people were on the stairway going up, and some coming down.

She did not see anything on the tile of the landing until plaintiff fell. After plaintiff fell, she looked at a substance on the landing, and it looked like vomit; it was a slimy, watery substance. She then notified the stock boy to get it up. She had not notified him earlier, because she did not know it was there.

Mrs. Deans testified on her adverse examination: 'I saw a little girl with her head handing over the stair rail at the landing. That's the place where the vomit was. * * The little girl and her mother were going up the steps. That's the last I saw. She acted like she was sick. I thought she was sick. Yes, I thought she was sick. She was standing there just a few seconds. * * * I did not see anything falling out of her mouth * * *. When the little colored girl went up the steps was when I was going over to help Mrs. Raper up. No, I had not seen her before I saw Mrs. Raper. I saw them both about the same time. * * * The little colored girl hadn't gone up the steps before Mrs. Raper came down the steps. * * * It all happened all of a sudden. Nobody even had time. Nobody had said one word to me about the child being sick on the steps. * * * When I saw the vomit I called for him [the stock boy] to get it up. * * * I know that vomit on the landing of that stairway, on that tile of the stairway would make it extremely slippery. And would be dangerous to the customers coming up and down the steps.'

No inference of negligence on the part of the defendant arises merely from a showing that plaintiff, a customer in defendant's store during business hours, sustained an injury in the store. Skipper v. Cheatham, 249 N.C. 706, 107 S.E.2d 625; Annotation 61 A.L.R.2d, page 56.

It seems to be universally held that the res ipsa loquitur doctrine is inapplicable in suits against business proprietors to recover for injuries sustained by customers or invitees in falls on floors and passageways located within the business premises and on which there is present litter or debris or other substances. Powell v. Deifells, Inc., 251 N.C. 596, 112 S.E.2d 56; Copeland v. Phthisic, 245 N.C. 580, 96 S.E.2d 697, 63 A. L.R.2d 587; Fox v. Great Atlantic & Pacific Tea Co., 209 N.C. 115, 182 S.E. 662; Annotation 61 A.L.R.2d, page 59.

That defendant is not under an insurer's liability as to the safety of customers who come upon its premises during business hours is a principle of the law of negligence so familiar and so firmly established as almost to obviate the necessity of citing supporting authority. Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Copeland v. Phthisic, supra; Annotation 61 A.L.R.2d, page 14.

Equally familiar and firmly established in the law of negligence is the rule that the criterion against which is to be measured the conduct of the defendant on whose premises plaintiff, a customer during business hours, sustained an injury is that of ordinary or reasonable care. It was the duty of the defendant to use ordinary care to keep in a reasonably safe condition those portions of its premises which it may expect will be used by its customers during business hours, and to give warning of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision. Waters v. Harris, supra; Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33; Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Griggs v. Sears, Roebuck & Co., 218 N.C. 166, 10 S.E.2d 623.

'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. ' Powell v. Deifells, Inc., supra.

The standard is always the conduct of the...