Rives v. Great Atlantic & Pacific Tea Co. , 68 N.C. App. 594 ( 1984 )

315 S.E.2d 724 (1984)

Ethel Lee RIVES
v.
GREAT ATLANTIC AND PACIFIC TEA COMPANY.

No. 8310SC113.

Court of Appeals of North Carolina.

June 5, 1984.

Michaels & Jernigan by Leonard T. Jernigan, Jr., Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Ronald C. Dilthey, Raleigh, for defendant-appellee.

WEBB, Judge.

We believe the trial court erred in directing a verdict for the defendant. It is well established that the owner or proprietor of a business is not an insurer of the safety of his customers, however, the proprietor has the duty to exercise ordinary care to keep the aisles and passageways of his store, where customers are expected to go, in a reasonably safe condition so as not to expose customers unnecessarily to danger, and to give warning of hidden dangers and unsafe conditions of which he knows or, in the exercise of reasonable supervision and inspection, should know. See Long v. Food Stores, 262 N.C. 57, 136 S.E.2d 275 (1964); Powell v. Deifells, Inc., 251 N.C. 596, 112 S.E.2d 56 (1960); Lee v. Green and Co., 236 N.C. 83, 72 S.E.2d 33 (1952). A proprietor is charged with knowledge of an unsafe condition on his premises created by his own negligence, or the negligence of his employee acting within the scope of his employment, or of an unsafe condition of which his employee has notice. Long, supra, 262 N.C. at 60, 136 S.E.2d at 278.

Plaintiff contends defendant's employee, Mr. Franks, negligently created an unsafe and hazardous condition when he left the shopping cart containing the tilted, open box of grapes in the middle of the produce aisle unattended and failed to promptly inspect the area for fallen grapes and remove the cart from the produce aisle after the customer had selected her grapes. The evidence tends to show that the grapes on which plaintiff slipped came from the open box in the shopping cart rather than from the produce counter. Most likely, the grapes were dropped on the floor by a customer though it is conceivable that the grapes fell out of the box as Mr. Franks pushed the cart down the aisle or when he stopped the cart. Either way, the jury could reasonably infer that Mr. Franks' action in putting the cart in such a position caused the ultimate hazard of grapes on the floor and thus proximately caused plaintiff's accident.

Mr. Franks was aware that customers rummage through produce looking for the freshest items, which can cause produce to fall on the floor, and he knew that produce on the floor can cause serious accidents. He knew at least one customer, the customer requesting the freshest grapes, would be handling the grapes that were in the shopping cart, and should have realized that other people were likely to handle the grapes also because the store was having a special on grapes that day, and the grapes on the display counter were not as fresh as those in the shopping cart. It was the busiest day of the week for the store and the beginning of its rush hour; therefore, it was foreseeable that numerous people might handle the grapes.

Given such circumstances, we believe a reasonable man would have foreseen that there was a substantial risk that customers would accidently drop some grapes on the floor around the shopping cart and that someone might slip on them. It was also foreseeable that the risk of an accident was greater than usual because of the number of people expected to be in the store at the time, and because the shopping cart was placed in the middle of the produce aisle where customers would not expect to find dropped produce on the floor. Nevertheless, Mr. Franks left the shopping cart in the aisle unattended and did not return to inspect the area after the customer had selected her grapes to see if any grapes had been dropped on the floor. He did not place astroturf mats around the cart to reduce the risk of an accident as instructed by the procedure manual, nor did he take any other precautionary measure to protect the customers from the potential hazard. In addition, one could reasonably infer from the manager's comment, "I've told them and told them not to bring these things out here until they're ready to be put up", that it was not a safe practice to leave a cart containing produce in the middle of the aisle as was done here, and that the employees were aware of this. We believe the jury could reasonably infer from the evidence that defendant failed to maintain the aisles of its store in a reasonably safe condition; therefore, the question of defendant's negligence should have been submitted to the jury.

Moreover, this is not a case where the defendant is entitled to a directed verdict based on the plaintiff's contributory negligence. The basic issue with respect to contributory negligence is whether the evidence shows, as a matter of law, that the plaintiff failed to keep a proper lookout for her own safety.

"When a defendant moves for a directed verdict on the grounds that the evidence establishes plaintiff's contributory negligence as a matter of law the question before the trial court is whether ``the evidence taken in the light most favorable to plaintiff establishes her negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than the trial judge.' (Citations omitted.)"

Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468-69, 279 S.E.2d 559, 563 (1981).

Here, plaintiff said she was looking where she was going, that the grapes were pale green and very small, and that the color of the floor tile was a light color with some green in it. The evidence shows the grapes were located near the shopping cart in the middle of the aisle where customers are less likely to expect to find loose produce on the floor. We do not believe this evidence allows no reasonable inference except plaintiff's negligence: that a reasonably prudent and careful person exercising due care for his or her safety would have looked down and seen the grapes on the floor, as is required to support a directed verdict for defendant on this issue. See Norwood, supra, at 469, 279 S.E.2d at 563.

We hold that plaintiff presented sufficient evidence to submit the issues of defendant's negligence and her contributory negligence to the jury, and that the entry of a directed verdict for defendant was improper. The judgment of the trial court is

Reversed.

WELLS and WHICHARD, JJ., concur.