Wimberley v. Winn-Dixie Greenville, Inc.

165 S.E.2d 627, 252 S.C. 117, 1969 S.C. LEXIS 218

• Court: Supreme Court of South Carolina
• Decided: January 16, 1969
• Docket: 18860
• Status: Published

Opinions

Littlejohn, Justice.

This action was brought by the plaintiff to recover damages for personal injuries sustained as the result of slipping and falling on the floor of the self-service store operated by the defendant. Admittedly there was some rice on the floor in one of the aisles where this plaintiff was shopping with a grocery pushcart furnished by the defendant.

The jury found a verdict for the plaintiff. The trial judge denied defendant’s motions for nonsuit, for a directed verdict, and for judgment notwithstanding the verdict.

The complaint alleged, inter alia, that the defendant was negligent in permitting the rice to be placed or to be on the floor, in failing to warn the plaintiff of the presence of the rice or the probability thereof, in failing to properly inspect the floor and remove the rice therefrom, in failing to provide an attendant at such location to check broken containers and thereby avoid rice and other substances being on the floor, and in furnishing shopping buggies to its customers which obstruct view of the floor immediately in front of the customer.

By answer the defendant denied the material allegations of the complaint and alleged contributory negligence on the part of the plaintiff.

Defendant’s only exception on appeal charges that the presiding judge erred in submitting the case to the jury and should have directed a verdict because there was no testimony from which a reasonable inference could be drawn of any negligence by the defendant proximately causing injury to the plaintiff. Plaintiff challenges the sufficiency of the exception, contending that it is too general. We are of the opinion, however, that the point cannot be sustained inasmuch as the gist of the defendant’s position is that there is an absence of the required evidence in this case where the burden of proof is on the plaintiff.

A review of the transcript indicates that the store of the defendant is a typical modern supermarket, the display area being about 60 feet wide and about 80 feet long. Goods are shelved on racks arranged back to back and referred to as “battleships.” The customer selects his own purchases, places them in a pushcart, and pays for them on the way out at the cashier’s desk in the front of the store.

Plaintiff’s fall occurred between 10 and 11 a. m. on a Wednesday morning. The defendant’s store closes at 1 o’clock on Wednesday and business activity on the morning involved was minimal. There were four employees in the store at the time of the fall; they were a temporary acting manager, a meat market manager, a produce manager and a cashier.

On the morning in question the store was swept shortly before 8 o’clock. The store offers rice already packaged for sale. It is displayed and shelved at a location well removed from the place of the fall. The store has a variegated colored floor, a large part of which is white, and upon which rice may be rather difficult to detect.

It is admitted that rice was on the floor at the place where the plaintiff fell. The plaintiff does not contend that there is any evidence that an employee of the store placed it there, nor is it argued that there is evidence that any employee had actual knowledge of its presence.

There is testimony that quite a number of customers had shopped in the store before the time the plaintiff fell, and that 100 to 150 shopped before closing at 1 o’clock. At the trial three years after the fall none of the employees who testified could definitely say whether any other customers had preceded the plaintiff down the aisle where the injury took place.

It has long been settled in South Carolina, and indeed in most jurisdictions, that one who operates a store is not an insurer of the safety of its customers, the duty owed them is rather the duty of exercising ordinary care to keep parts of the store as are ordinarily used by customers in a reasonably safe condition. Gilliland v. Pierce Motor Company, 235 S. C. 268, 111 S. E. (2d) 521 (1959); Hunter v. Dixie Home Stores, 232 S. C. 139, 101 S. E. (2d) 262 (1957); Anderson v. Belk-Robinson Company, 192 S. C. 132, 5 S. E. (2d) 732 (1939).

This duty was restated by this court in the case of Anderson v. Belk-Robinson Company, supra, wherein we held that in order to hold a merchant liable for injuries caused by some defect in the premises, there must be evidence tending to show that he or his agents knew or should have known, by the exercise of reasonable diligence, of the defect (in this case rice on the floor).

Then in Hunter v. Dixie Home Stores, supra, this court again canvassed the authorities on the question and reaffirmed the rule applied in Anderson.

In passing on the denial of a directed verdict this court must of course consider all the testimony and the inferences therefrom in the light most favorable to the plaintiff. The burden, however, was on the plaintiff to show that the defendant or its agents knew or should have known that the rice was on the floor and was thereby making the aisle a hazard to customers, and in our opinion the plaintiff has not carried this burden.

Under our cases in order for a customer to prevail as plaintiff in a case of this kind it must be shown (1) that the material on the floor was placed there through an agency of the store, or (2) that the merchant had notice of its presence. This notice may be actual or constructive. Constructive notice may be proved by showing in this case that the rice had been on the floor sufficiently long that the defendant should have discovered it. The only real issue in this case is whether the plaintiff has submitted evidence that the defendant had constructive notice.

A search of the record fails to reveal any evidence showing how long the rice had been on the floor. The store had been swept just before opening at 8 a. m., and the fall occurred between 10 and 11 a. m. in an area adjoining the produce area. The produce manager testified that although he went to the back of the store from time to time to procure goods from a storage area, he passed over the point where the fall occurred every ten or fifteen minutes and was stationed in the immediately adjacent produce area the entire morning. He saw no rice on the floor prior to the fall.

Mr. Boykin, in charge as assistant manager, testified that he walked up and down the aisle before the opening of the store and several times during the day. He did not see rice on the floor prior to the fall.

In addition to relying upon the law of this state counsel for plaintiff cites the case of Carl’s Markets, Inc. v. DeFeo, 55 So. (2d) 182 (Fla. 1951) in substantiation of his position. In written brief it is argued that the store premises were not kept in a reasonably safe condition because of insufficient personnel, inadequate inspection, inadequate floor maintenance, appellant’s pushcart obstructing view, and use of variegated floor. Plaintiff argues “The circumstances amply support the theory that appellant had constructive notice of the rice being on the floor and did nothing about it.” The Florida court has adopted a standard of care different from that enunciated in our cases. The tendency of the Florida cases is to eliminate the necessity of proof of actual or constructive notice. Such is not the rule in this state.

No evidence is pointed out which reasonably tends to prove that the rice was on the floor at any particular time prior to the actual fall. The jury should not be permitted to speculate that it was on the floor for such a length of time as to infer that defendant was negligent in failing to detect and remove it.

From a review of the entire evidence we conclude that the plaintiff has failed to carry the burden of proof and judgment for refendant shall be forthwith entered in keeping with Rule 27.

Reversed.

Moss, C. J., and Clarence E. Singletary, Acting Associate Justice, concur. Bussey and Lewis, JJ., dissent.