Anderson v. Winn-Dixie Greenville, Inc.

184 S.E.2d 77, 257 S.C. 75, 1971 S.C. LEXIS 213

• Court: Supreme Court of South Carolina
• Decided: October 6, 1971
• Docket: 19296
• Status: Published

Opinions

Brailsford, Justice.

This is an appeal by defendant from a judgment for plaintiff in her action to recover damages for personal injuries sustained when, while shopping in defendant’s store, she slipped on a fragment of banana peel and fell. The primary question on appeal is whether the evidence raised a submissible issue as to actionable negligence.

It is settled law that a merchant is not an insurer of the safety of a customer in his store. His duty is to exercise due care to keep his premises in reasonably safe condition. Proof that a dangerous condition of the floor existed because of the presence of some foreign matter thereon is insufficient, standing alone, to support a finding of negligence. Unless it is inferable from the evidence that the storekeeper was responsible for creating the hazard, knowledge of its existence, either actual or constructive, is essential to recovery against him. The defendant will be charged with constructive notice whenever it appears that the condition has existed for such length of time prior to the injury that, under existing circumstances, he should have discovered and remedied it in the exercise of due care; conversely, absent evidence of such preexistence, the defendant may not be so charged. Hunter v. Dixie Home Stores, 232 S. C. 139, 101 S. E. (2d) 262 (1957) ; Gilliland v. Pierce Motor Co., 235 S. C. 268, 111 S. E. (2d) 521 (1959) ; Wimberley v. Winn-Dixie Greenville, Inc., 252 S. C. 117, 165 S. E. (2d) 627 (1969); Pennington v. Zayre Corp., 252 S. C. 176, 165 S. E. (2d) 695 (1969).

The accident occurred at about 10:30 A. M. on a Friday morning. The store, located on North Main Street in the City of Columbia, had opened at 8:30. This was normally a busy time. There is no testimony on the point as to the particular morning. As plaintiff progressed through the store, she selected various items and placed them in a cart. Upon arriving at the produce section, she slipped and fell to the floor, thereby sustaining the injuries for which she seeks damages. After falling, she saw that she had stepped upon a small fragment of banana peel. It is conceded that the presence of this object upon the floor caused her to fall. She does not contend that the hazard was created by anyone for whose conduct defendant is responsible. Therefore, under the principles which have been stated, plaintiff had the burden of proving either that those conducting defendant’s business knew the peeling was on the floor in time to prevent plaintiff’s injury, or, that in the exercise of due care, they should have known of it.

Plaintiff contends that this burden was met by inferences reasonably to be drawn from a statement attributed by her to defendant’s produce manager, who saw her fall and came to her assistance. We quote: “Q. And the employee that helped pick you up, did he say anything after he had helped pick you up ? A. He helped me up off the floor and he said we should have had this place cleaned up but we just hadn’t got around to it yet.” Since the record is barren of any other evidence tending to fasten actual or constructive knowledge upon defendant, the whole issue depends upon the sufficiency of the employee’s statement, viewing it and any inferences which may reasonably be drawn therefrom in the light most favorable to plaintiff, to raise a submissible issue as to whether defendant knew of the hazard, or in the exercise of reasonable care should have discovered it.

We find nothing in the statement upon which to rest an inference that the employee knew, prior to plaintiff’s fall, that the peeling fragment was on the floor. Plaintiff contends that his acknowledgement that the place should have been cleaned up indicates prior knowledge of the hazard. But this is entirely implausible. The banana peel was the only bit of debris seen by any witness, including plaintiff, after her fall. If this employee had discovered it before, his simple duty to pick it up would have been exactly the same whether or not, otherwise, the area should have been cleaned up. Perhaps this spur of the moment statement, if made by the produce manager, as we must assume, was prompted by chagrin that a lady customer should have slipped on a banana peel in the aisle of his department and was intended to assuage her embarassment. But whatever may have prompted the statement, we find no inconsistency between what he then said and his sworn testimony disclaiming that, prior to plaintiff’s fall, he had any knowledge of the injury-producing hazard. Nor does this statement have any tendency to establish such actual preexistence of the hazard as would support a finding of constructive knowledge.

We find no decision by this court on analogous facts. The following cases from other jurisdictions in which plaintiff unsuccessfully relied upon the post-accident statement of an employee as supporting an inference of notice, tend to support our conclusion: O'Leary v. Smith, 255 Mass. 121, 150 N. E. 878 (1926) ; F. W. Woolworth Co. v. Goldston, 155 S. W. (2d) 830 (Tex. Civ. App. 1941) ; Varner v. Kroger Grocery & Baking Co., 75 S. W. (2d) 585 (Mo. App. 1934) ; Uelentrup v. Switzerland Stores, Inc., 164 S. W. (2d) 650 (Mo. App. 1942). Compare Hewitt v. Katz Drug Co., 199 S. W. (2d) 872 (Mo. App. 1947). in which the court was justified in concluding that the post-accident statement reasonably supported the inference that defendant had prior knowledge of the hazard.

Plaintiff described the peeling as about an inch long, “black and withered up.” The produce manager agreed that it was black and conceded that it may have been “sort of mushed up.” Plaintiff has made no argument that this testimony raises an inference that the peeling had been on the floor for a considerable time, and properly so. It is common knowledge that black splotches not infrequently appear on the skin of even sound fruit of this variety. The phrases “withered up” and “mushed up”, which were applied to the appearance of the small bit of peeling after it has been stepped upon by plaintiff, are equally insignificant.

Plaintiff apparently argues that defendant’s unexplained failure to call as a witness the employee assigned to sweep the floor on the night before plaintiff’s injury raises adverse inferences, which support submission of the case to the jury. If so, she misconceives the force and effect to be given such inferences, which are not substantive evidence, and may not relieve a party of the necessity of proving his case or defense. 29 Am. Jur. (2d), Evidence, Sec. 187 (1967).

Reversed.

Moss, C. J., and Littlejohn, J. concur. Lewis and Bussey, JJ., dissenting.