Hinson v. Cato's, Inc.

157 S.E.2d 537 (1967) 271 N.C. 738

Lessie Mae HINSON
v.
CATO'S, INC.

No. 537.

Supreme Court of North Carolina.

November 8, 1967.

Leath, Bynum, Blount & Hinson, Rockingham, for defendant appellant.

Webb, Lee & Davis by Benny Sharpe, Rockingham, for plaintiff appellee.

PER CURIAM:

A store owner does not insure his patrons against slipping or falling upon the floor. Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281. The doctrine of res ipsa loquitur does not apply in such cases. Skipper v. Cheatham, 249 N.C. 706, 107 S.E.2d 625. To hold the owner liable, the injured person must show: (1) that the owner negligently created the condition causing the injury, or (2) that it negligently failed to correct the condition after notice, either express or implied, of its existence. The mere fact that one slips and falls on a floor does not constitute evidence of negligence, nor does the fact that a floor was waxed make the owner liable. Barnes v. Hotel O. Henry Corp., 229 N.C. 730, 51 S.E.2d 180. Also, the customer has the duty to (1) see that which can be seen in the exercise of ordinary prudence, and (2) use reasonable safeguards to protect himself. Berger v. Cornwell, 260 N.C. 198, 132 S.E.2d 317.

The plaintiff's evidence falls short on all counts. A "waxy, slick spot" could be created in many ways, such as a wad of chewing tobacco, a partially finished child's candy sucker, a bit of banana peel, a tomato, or almost any other vegetable or candy. Its presence cannot be legally ascribed to the merchant without proof. When dozens, even hundreds, of customers throng the aisles of a supermarket, it would impose an impossible burden on the owner to make him responsible for the thoughtless, or even negligent, acts of each customer who might throw an apple peel or even something more slimy or objectionable on the floor. Until the owner has, or should have had, reasonable notice to remedy such condition, he cannot be held responsible.

Even if a negligent situation could be assumed here, had it existed a week, a day, an hour, or one minute? The record is silent; and since the plaintiff must prove her case, we cannot assume, which is just a guess, that the condition had existed long enough to give the defendant notice, either actual or implied.

The plaintiff has failed to meet the requirements which permit the cause to be submitted to the jury.

Reversed.