Norwood v. Sherwin-Williams Co.
Norwood v. Sherwin-Williams Co.
Opinion of the Court
If the defendant was entitled to a directed verdict at the end of all the evidence, the judgment notwithstanding the verdict was properly entered. See Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). We hold that all the evidence shows the plaintiff was contributorily negligent and we affirm the judgment of the superior court.
A plaintiff who trips or falls over an object on the premises of another is barred from recovery by his or her contributory negligence if the object is in a position at which the plaintiff would have seen it had he or she looked. See Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E. 2d 1 (1964); Jones v. Pinehurst, Inc., 261 N.C. 575, 135 S.E. 2d 580 (1964); Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338 (1963); Little v. Oil Corp., 249 N.C. 773, 107 S.E. 2d 729 (1959); Porter v. Niven, 221 N.C. 220, 19 S.E. 2d 864 (1942); Farmer v. Drug Corp., 7 N.C. App. 538, 178 S.E. 2d 64 (1970). The plaintiff, relying on Hunt v.
We hold that the pallet was in plain view where the plaintiff should have seen it by the exercise of due care.
Affirmed.
Dissenting Opinion
dissenting:
Plaintiff’s evidence in this case showed that while walking along an aisle in defendant’s store, her foot caught under a plywood pallet which was protruding into the aisle and was elevated about three inches off the floor. The pallet supplied the base upon which a tall paint sprayer display was mounted. Plaintiff noticed the paint sprayer display but did not see the protruding pallet before she caught her foot underneath it. The aisles of the store were very narrow and crowded with merchan
At the close of plaintiff’s evidence, defendant’s motion for directed verdict was denied. Defendant presented the testimony of Richard McDaniel who was defendant’s assistant store manager at the time of plaintiff’s injury. He testified as to the location and design of the display pallet. There were two aspects of his testimony which we regard as favorable to plaintiff. We quote:
The pallet was in an open area because it was a fairly large device used for spraying houses and commercial work and it is something that you set it out there and you don’t want a whole lot of things to distract from it. We really didn’t have anything else to put around it at the time. It was more or less as a display.
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To my knowledge, the base of the display was constructed of two by fours as the base and plywood nailed to the top of it. The plywood would have been four inches off the floor. The edges were exposed. There was bare plywood sticking out around the base, and there was an overhang.
Defendant also presented the testimony of Crandall Nelson, defendant’s store manager at the time of plaintiff’s injury. There was one aspect of his testimony we regarded as favorable to plaintiff. We quote:
The pallet and the display itself were located right in the middle of the busy area in front of the wrapping counter. That pallet was constructed so that it had the plywood*539 edges exposed. It was painted and had carpet on it. We did not have a drop cloth on top of it. The very edge of the pallet was painted and smooth. There was no guard around it. There was nothing to warn customers that this low-lying pallet was there; we did not put up a sign there. We figured the 2X4 would act as a kick-board. I built these pallets and I let the 2 X 4’s underneath serve as a kick-board. A customer’s foot could have gone underneath there but not very far.
The airless pump spray gun was probably four and one-half feet high. It was a sort of turquoise color. Back through a period of the sixties to 1975, the merchandising idea at that time was the mass-marketing idea. The idea was to pile high and let it fly. We never did go along with that too much.
At the close of all the evidence, defendant’s motion for directed verdict was again denied. Following the charge of the court, the jury answered the issues as follows:
“1. Was the plaintiff injured by the negligence of the defendant as alleged in the Complaint?
Answer: ‘Yes.’
2. Did the plaintiff contribute to her own injuries as alleged in the Answer?
Answer: ‘No.’
3. What amount, if any, is the plaintiff entitled to recover of the defendant?
Answer: ‘$90,000.00.’ ”
Upon the jury’s verdict on 2 March 1979, the trial court entered judgment for plaintiff in the amount of $90,000.00. On 6 March 1979, defendant moved for judgment notwithstanding the verdict. On 2 April 1979, the trial court entered an order granting defendant’s motion for judgment n.o.v.
Plaintiffs evidence must be taken in the light most favorable to her. Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974); Home Products Corp. v. Motor Freight, Inc., 46 N.C. App. 276, 264 S.E. 2d 774 (1980). To the extent defendant’s evidence explains or clarifies plaintiff’s evidence, it must be considered in the light most favorable to plaintiff. In that light, plaintiff’s and defendant’s evidence clearly shows that a large display was mounted by defendant in a crowded, busy area of the store. The display was mounted to attract the attention of customers. The display reached near eye level. It was mounted on a pallet elevated from the floor by about four inches, a height sufficient to create the illusion of floor level, but with an overhang under which there was room for plaintiff’s foot to catch. This condition, created by defendant, constituted a hidden danger, a danger with which plaintiff could not reasonably be expected to discern, observe, or otherwise be aware of. In the words of Justice Ervin, plaintiff’s conduct
must be judged in the light of the general principle that the law does not require a person to shape his behavior by circumstances of which he is justifiably ignorant, and the resultant particular rule that a plaintiff cannot be guilty of contributory negligence unless he acts or fails to act with knowledge and appreciation, either actual or constructive, of the danger of injury which his conduct involves.
Chaffin v. Brame, 233 N.C. 377, 380, 64 S.E. 2d 276, 279 (1951).
Under such circumstances as were deliberately created by defendant in this case, we do not believe it was the duty of the plaintiff to anticipate that defendant’s display would be mounted on a pedestal not flush with the floor, protruding in such a way that if she did not tiptoe around it, she might catch her foot underneath it.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.