Urban v. Wait's Supermarket, Inc.

• Decision Date: 18 March 1980
• Docket Number: No. 12737,12737
• Citation: 294 N.W.2d 793
• Parties: Florence A. URBAN, Plaintiff and Appellee, v. WAIT'S SUPERMARKET, INCORPORATED, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 793

294 N.W.2d 793

Florence A. URBAN, Plaintiff and Appellee, v. WAIT'S SUPERMARKET, INCORPORATED, Defendant and Appellant.

No. 12737.

Supreme Court of South Dakota.

Considered on Briefs March 18, 1980.

Decided July 16, 1980.

Charles Rick Johnson of Johnson, Johnson & Eklund, Gregory, for plaintiff and appellee.

John F. Cogley of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and appellant.

MARTIN, Circuit Judge.

Plaintiff brought an action to recover damages for personal injury she sustained in a fall while shopping at defendant's supermarket. The case was submitted to a jury, which returned a verdict for plaintiff in the amount of $20,000 upon which the trial court entered judgment. We affirm.

The incident took place on July 21, 1977, in Chamberlain, South Dakota. Plaintiff was sixty-three years of age at the time of the incident and had lived for many years in the Pukwana, South Dakota, area. She had shopped at defendant's supermarket on other occasions and was familiar with the fact that the supermarket periodically displayed watermelons along the edge of one of the aisles in the store. On the day in question, watermelons were displayed along the edge of one of the aisles. The aisle in question was about four feet wide and the watermelons were lying end to end. About two-thirds of the way into the aisle is an opening that permits shoppers to cross into yet another aisle. Plaintiff had gone through this opening and ventured into another aisle, where she had parked her shopping cart and began selecting merchandise. She had her purse in one hand and a box of alum and a sack of candy in the other, when she remembered that she needed cupcake holders and therefore proceeded back through the opening into the aisle wherein the watermelons were situated. Intent upon locating the cupcake holders on a shelf which was about head high or perhaps higher to her, plaintiff, according to her testimony, tripped and her foot fell backwards over a watermelon, causing her to fall. Plaintiff did not know whether she was walking forward or backwards at the time she fell over the watermelon, because she was looking back and forth and did not observe the watermelon at that instant. Plaintiff testified that she was looking at the shelf as opposed to the floor, even though she was aware that the watermelons were present along the edge of the aisle. She also testified that one of the the watermelons was located a little farther out into the aisle than the others.

Defendant's president testified that his company had displayed watermelons on the floor in the aisles for some thirty years, during which time no one had ever been injured as a result of their being there. He conceded that there were times when shoppers would thump on the watermelons or bump into them with their shopping carts, which would, on some occasions, relocate the watermelons, but that any of the watermelons which would be rolled away from the edge of the aisle into the aisle would be pushed back to the edge of the aisle.

The husband of one of defendant's employees testified that he had observed plaintiff reaching for some merchandise on the shelf just prior to the accident. It appeared that plaintiff could not reach what she wanted, whereupon she put her foot up on one of the watermelons in an effort to raise herself. The watermelon rolled, causing plaintiff to fall. This witness' observations were made from a point approximately sixty feet from where the melons were located. That the jury was interested in the witness' vantage point was evidenced by the note sent to the trial court stating, "We would like to know which picture in evidence pertains to (the witness') view from where he was sitting . . .. "

Plaintiff denied ever trying to step on a watermelon and further denied that she was reaching for anything at the time she fell. Plaintiff further testified that she was walking normally and shopping in a normal manner at the time she fell.

Defendant contends on appeal that a verdict should have been directed in its favor because it owed no duty or, in the alternative, because plaintiff's conduct constituted contributory negligence that as a matter of law was more than slight.

It is not our function on appeal to weigh the evidence and to substitute our judgment for that of the jury's. Neb. Elec. Generation & Trans. Co-op. v. Walkling, 90 S.D. 253, 241 N.W.2d 150 (1976). In determining whether the evidence was sufficient to warrant submission to the jury, plaintiff is entitled to have every controverted fact resolved in her favor and to have the benefit of all reasonable inferences that can be deducted from the evidence. The test is whether there is any substantial, credible evidence which, when viewed in a light most favorable to the plaintiff, would tend to sustain a verdict. Stenholtz v. Modica, 264 N.W.2d 514 (S.D.1978); Bunkers v. Mousel, 83 S.D. 45, 154 N.W.2d 208 (1967); Parham v. Dell Rapids Township, 80 S.D. 281, 122 N.W.2d 548 (1963). We believe there is such evidence.

As a general rule, the possessor of land owes an invitee, or business visitor, the duty of exercising reasonable or ordinary care for his safety and is liable for the breach of such duty. Norris v. Chicago, M., St. P. & P. R. Co., 74 S.D. 271, 51 N.W.2d 792 (1952); Restatement (Second) of Torts § 343 (1965). There was evidence to substantiate a finding by the jury that defendant breached its duty to plaintiff herein. Defendant relies, however, on the exception to this general rule applied when injury results from dangers that are "obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant." Norris, 74 S.D. at 274, 51 N.W.2d at 793. Restatement (Second) of Torts § 343 A. (1), p. 218 summarizes the exception as follows:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Comment f to § 343 points out that there are cases in which the possessor of land can and should anticipate that the dangerous condition would cause harm to the invitee notwithstanding its known or obvious dangers. In such case, the possessor...