Sears, Roebuck & Co. v. Chandler

• Decision Date: 21 November 1979
• Docket Number: No. 57773,57773
• Citation: 263 S.E.2d 171,152 Ga. App. 427
• Court: Georgia Court of Appeals
• Parties: SEARS, ROEBUCK & COMPANY v. CHANDLER et al.

Page 171

263 S.E.2d 171

152 Ga.App. 427

SEARS, ROEBUCK & COMPANY v.CHANDLER et al.

No. 57773.

Court of Appeals of Georgia.

Argued May 9, 1979.

Decided Oct. 11, 1979.

Rehearing Denied Nov. 21, 1979.

Eugene A. Epting, Athens, for appellant.

Stephen H. McElwee, James Ernest Hudson, Athens, for appellees.

QUILLIAN, Presiding Judge.

This is a "trip and fall" case.Plaintiff, Mrs. Ruby Chandler, was shopping in Sears for a birthday gift and a light fixture for her church.The light fixtures were hanging from a high beam.As she came to the end of the main display counter, she attempted to turn right but her leg struck a raised platform, called an "endcap."An "endcap" is a display platform, approximately "2 X 4" feet in width, about 10 inches high, and is "located at the end of a line of fixtures . . . " It is used to display merchandise but this particular endcap was empty.The other endcaps had merchandise displayed upon them.Although this was a "main aisle," there were endcaps at the end of each main display counter which extended out into the main aisle.From the photograph of this area, it appears that the endcap is the same width as the display counter and that each main display counter has a solid end piece which rises approximately two feet high, then recesses toward the center of the counter about one foot, and then extends upward for another two and one-half feet.When a person is proceeding down the main display counter toward the main aisle, the endcap at the end of the counter is partially if not totally, obscured from a customer's view by the end of the main display counter unless merchandise is displayed on the endcap which would rise above the end piece of the main display counter.

Mrs. Chandler testified that she"was looking at merchandise . . . not looking at (her) feet."She was paying attention to where she was going but "was looking at things just in general on the counter."She described the incident as: "I was dodging the top of the counter and hit the bottom . . . I was missing the counter.I didn't see the low thing.If they had of had something over it I would have missed it . . . It was that height.It was that low on the floor."When she tripped, she grabbed for the end of the counter and alleges that she seriously injured her back.The defendant appeals from a jury verdict for the plaintiff.Held :

1.Defendant alleges the court erred in failing to direct a verdict for defendant and denying its motion for judgment notwithstanding the verdict.We do not agree.Plaintiff was an invitee of defendant.An owner or occupier of retail premises is not an insurer of the safety of invitees (Hammonds v. Jackson, 132 Ga.App. 528, 531, 208 S.E.2d 366) but a duty rests upon it to exercise ordinary care to keep the premises safe for persons coming thereon by its invitation.Simpson v. Dotson, 133 Ga.App. 120, 122, 210 S.E.2d 240.An invitee may rely upon the proper discharge of this duty by the owner or occupier and is not, as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which could render it unsafe for persons coming upon the premises.Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 343, 226 S.E.2d 142.However, the customer-invitee must make use of all of his or her senses in a reasonable measure amounting to ordinary care, in discovering and avoiding those things that might cause injury to him.It is his duty to exercise ordinary care to observe such obstructions as an ordinarily prudent person would, under normal conditions, expect in the aisles of the place of business in which he is an invitee.King Hardware Co. v. Teplis, 91 Ga.App. 13, 15, 84 S.E.2d 686.Looking continuously, without interruption, for defects in the premises is not required.Chotas v. J. P. Allen & Co., 113 Ga.App. 731, 733, 149 S.E.2d 527.The invitee is not bound to avoid tripping or stumbling over articles which are not usually obstructing aisles of a store, and which in the exercise of ordinary care he did not observe.Neither is he barred from recovery simply because by extreme care on his part it would have been possible to have discovered the article or obstruction left in the aisle customarily used by patrons.Big Apple Super Market v. Briggs, 102 Ga.App. 11, 14, 115 S.E.2d 385.

A merchant has the right to display merchandise on racks, shelves, and platforms as he may desire including placing merchandise in the aisles." '(N)evertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.'Kitchens v. Davis, 96 Ga.App. 30, 34(1), 99 S.E.2d 266."Big Apple Super Market v. Briggs, 102 Ga.App. 11, 14, 115 S.E.2d 385, 387, supra.Platforms are usual accessories in retail stores used to display wares of a merchant.In and of themselves, they are not inherently dangerous and when properly illuminated and placed so as not to threaten or endanger those visiting the store within full sight and observation, the merchant is not liable for accidents caused by the carelessness and inattention of patrons.Rich's, Inc. v Waters, 129 Ga.App. 305, 199 S.E.2d 623;Lane v. Maxwell Bros. etc., Inc., 136 Ga.App. 712, 713, 222 S.E.2d 184.

"Numerous cases are cited to the effect that, where the obstruction is in some way hidden, camouflaged, or intrinsically unsafe, the question of ordinary care in the plaintiff is for the jury, but, where it is perfectly obvious and apparent, so that one looking ahead would necessarily see it, the fact that the plaintiff merely failed to look will not relieve him from the responsibility for his misadventure."Moore v. Kroger Co., 87 Ga.App. 581, 583, 74 S.E.2d 481, 482;Miller v. Bart, 90 Ga.App. 755, 758, 84 S.E.2d 127;Colonial Stores v. Owens, 107 Ga.App. 436, 437, 130 S.E.2d 616.

This "plain view" doctrine must be considered in conjunction with the duty of the merchant to keep his premises in a safe condition, and where he creates a "distraction" which diverts the customer's attention so as to be the proximate cause of an injury in colliding with what otherwise might be a patent and safe appurtenance, such "distraction" can constitute actionable negligence.Jackson Atlantic, Inc. v. Wright, 129 Ga.App. 857(1), 201 S.E.2d 634.The basis for such rationale is clear.The true ground for tort liability in such situations is the "proprietor's superior knowledge" of the perilous instrumentality and the possible danger therefrom to persons going upon the premises.Angel v. Varsity, Inc., 113 Ga.App. 507, 148 S.E.2d 451;Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 344, 226 S.E.2d 142, supra.The merchant is fully aware or should be cognizant that the usual shopper travels the aisles with his attention directed toward the item he seeks and the prices of the displayed articles.The merchant deliberately attempts to draw the shopper's attention to selected items that he places on sale or features by signs, price cuts, or other displays.Accordingly, it would appear that the "superior knowledge" of the peril is with the merchant who placed the object in the aisle and the item which distracts the attention of the shopper.This court analyzed the "distraction theory" in Redding v. Sinclair Refining Co., 105 Ga.App. 375, 378, 124 S.E.2d 688, 691, where we held: "The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized . . . The doctrine is further broadened to cover situations where the plaintiff's attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur."

This court thoroughly discussed the two lines of cases regarding the "plain view" doctrine and the "distraction"rationale in Stenhouse v. Winn Dixie Stores, 147 Ga.App. 473, 249 S.E.2d 276 where we held that the issue could not be determined as a matter of law and was a question for the jury.We reaffirmed the general rule that issues of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one's protection are ordinarily for the jury (James v. Sears, Roebuck & Co., 140 Ga.App. 859, 232 S.E.2d 274) and are usually incapable of summary adjudication and should be resolved by trial.Ellington v. Tolar Const. Co., 237 Ga. 235, 237, 227 S.E.2d 336.Whether the invitee customer might have discovered the article or obstruction in the aisle and avoided the injury to himself by the exercise of ordinary care, must be determined in the light of all the attendant circumstances (Big Apple Super Market v. Briggs, 102 Ga.App. 11, 14, 115 S.E.2d 385, supra), and is a question for the jury.Gray v. Delta Air Lines, 127 Ga.App. 45, 52, 192 S.E.2d 521.Accordingly, the trial court did not err in denying defendant's motions for directed verdict and judgment n. o. v.

2.The...