Game v. CHARLES STORES CO. INC. , 268 N.C. 676 ( 1966 )

151 S.E.2d 560 (1966) 268 N.C. 676

Mrs. Louise GAME
v.
CHARLES STORES COMPANY, Inc., and King's Department Stores of Raleigh, Inc.

No. 524.

Supreme Court of North Carolina.

December 14, 1966.

Smith, Leach, Anderson & Dorsett, Raleigh, for plaintiff appellant.

Broughton & Broughton, Raleigh, for defendant appellees.

HIGGINS, Justice.

The plaintiff has appealed from a judgment sustaining the demurrer and dismissing the action upon the ground the complaint failed to state a cause of action. In passing on the appeal, this Court is required to examine the complaint and to determine as a matter of law whether it contains sufficient factual averments to survive the demurrer. "If the complaint, in any portion of it or to any extent, presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, it will survive the challenge of a demurrer based on the ground that it does not allege a cause of action. Bailey v. Bailey, supra; (243 N.C. 412, 90 S.E.2d 696)" Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148.

The facts alleged are sufficient to permit a finding the plaintiff was an invitee on the defendants' premises at the time of her injury. This relationship does not constitute the defendants insurers of her safety, and res ipsa loquitur is not applicable; nevertheless, liability attaches for injuries resulting from the defendants' actionable negligence. Morgan v. Great Atlantic & Pacific Tea Co., 266 N.C. 221, 145 S.E.2d 877; Long v. National Food Stores, Inc., 262 N.C. 57, 136 S.E.2d 275. The owner of a store must exercise ordinary care to keep in a reasonably safe condition that part of the premises where during business hours invitees are expected. The owner's duty extends to a parking lot provided by the owner for the use of the invitees. Berger v. Cornwell, 260 N.C. 198, 132 S.E.2d 317.

The driveway into and out of the parking lot parallels the front of the store. At the time of plaintiff's injury, that portion of the driveway adjacent to the building was used for the display of azalea and other plants. These were contained in wooden boxes placed on that portion of the driveway nearest the wall of the building. An automobile operated on the driveway by another customer ran over one of the soft drink bottles. The moving wheel caused the bottle to be thrown with "terrific" force against the plaintiff, inflicting serious and permanent injuries. Charles Stores Company, Inc., had carelessly and negligently permitted the bottles and other trash and material to accumulate and to remain in this parking area after it had notice of their presence and location and had ample time and opportunity to remove them. The plaintiff's injuries required hospitalization and surgery. As a result of the cost of treatment, the loss of time from work, and other elements of damage, the plaintiff alleges she is entitled to recover $25,000.00.

From the facts alleged, it may be inferred the defendant, Charles Stores, should have anticipated (1) an invitee would use the only approach from the parking area to the entrance into the store; (2) that a customer would or might be on the driveway near the empty bottles and other debris the defendants had negligently permitted to accumulate and to remain in the driveway; (3) that customers would operate their motor vehicles over the driveway entering and leaving the parking area; (4) that the wheel of a moving automobile would, or might, make a missile out of one of the loose bottles and injure another customer attempting to enter the store from the parking area.

We think the facts alleged and the legitimate inferences from them meet the minimum standards, and state a cause of action.

This case is now in the pleading stage and the discussion involves allegations only. This decision now goes no further than to hold that if the plaintiff proves all she has alleged she will be entitled to have the jury pass on appropriate issues. The judgment sustaining the demurrer is

Reversed.