Stokes v. Peyton's, Inc.
| Decision Date | 26 February 1976 |
| Docket Number | No. 74-3290.,74-3290. |
| Citation | 526 F.2d 372 |
| Parties | Robert P. STOKES, Plaintiff-Appellant, v. PEYTON'S INC., and Travco Plastics Company, Inc., Defendant-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Foy R. Devine, Thomas J. Hughes, Jr., Atlanta, Ga., for plaintiff-appellant.
John A. Sherrill, J. Bruce Welch, William Q. Bird, Eugene G. Partain, Daniel M. Coursey, Jr., Atlanta, Ga., for Peyton, Inc.
Before BELL and DYER, Circuit Judges, and MEHRTENS, District Judge.
Rehearing and Rehearing En Banc Denied February 26, 1976.
Appellant brought a diversity action for damages arising from injuries sustained when he impaled his left eye upon a J-hook affixed to the outer edge of a display shelf in a SupeRx Drug Store where he was employed as store manager. The injury occurred as Stokes bent over to assist a customer in locating certain merchandise. Although designed to promote impulse buying, the hook apparently held no merchandise at the time of the injury.
Stokes contends that Travco negligently designed the J-hook and that the product was not merchantable and reasonably suited to the use intended, asserting liability under Georgia Code Section 105-106. He further alleges that the merchandiser, Peyton's, Inc., had negligently selected, installed and maintained the J-hook. Action against the drug store was barred by the workmen's compensation statutes, Georgia Code Section 114-103. The trial court, after all the evidence had been presented by plaintiff and defendants, directed a verdict in favor of both defendants, having taken defendants' motions for directed verdict under advisement at the close of plaintiff's case.
Applying the standards of Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969), the motions for directed verdict in favor of defendants were properly granted under the circumstances of this case.1 We agree with the trial judge that the facts and inferences point so strongly and overwhelmingly in favor of the defendants that reasonable men could not have arrived at a verdict contrary to that directed by the district court.
Appellant asserts that a jury of reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on the issues of his exercise of ordinary care and the liability of Peyton's and Travco Plastics for their alleged negligence.
As to the ordinary care of appellant, Stokes admitted at trial that he simply did not see the hook, which had been installed approximately one month prior to the sustaining of the eye injury. The hooks had been in the store for some one hundred days, and Stokes, as store manager, had constructive, if not actual, knowledge of the presence of the hooks on the shelves. See Barrow v. James, 107 Ga.App. 377, 378, 130 S.E.2d 352 (1963). Nonetheless, appellant offered no explanation for his failure to see the hook. Ordinary care requires that one see and be aware of what is open and obvious, that is, to perceive that which would be obvious upon the ordinary use of one's senses. Dvorak v. Holiday Inns of America, Inc., 429 F.2d 54 (5th Cir. 1970). The principle stated in Dvorak, which involved the application of Florida law, also reflects the Georgia law on this question. See Holliday v. Mayor & Council of Athens, 10 Ga.App. 709, 713, 74 S.E. 67 (1912) and Slaughter v. Slaughter, 122 Ga.App. 374, 177 S.E.2d 119, 122 (1970).
Under the circumstances of this case, Stokes had the burden of showing that he could not have seen the hook in the exercise of ordinary care. Lane Drug Stores, Inc. v. Story, 72 Ga.App. 886, 35 S.E.2d 472 (1945). Having failed to carry this burden, appellant could not recover. Georgia Code Section 105-603 provides that:
Assuming, arguendo, that appellant had exercised ordinary care for his own safety, the evidence as to the negligence of either defendant was insufficient to require consideration of this issue by the jury. In regard to the defendant, Peyton's, Inc., the record strongly and overwhelmingly indicates that Stokes was the very person charged with the duty to install and maintain the J-hook program. Any failures in this respect, such as failure to stock the hooks with merchandise or failure to attach red tips to the hooks, are attributable to Stokes and not to Peyton's, Inc. This is so notwithstanding the fact that a representative of Peyton's took the initiative to install the hooks when, after receipt of the hooks by the store, appellant failed to implement the J-hook program.
Although the evidence reflects...
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