Anderson v. Winn-Dixie Greenville, Inc.
Anderson v. Winn-Dixie Greenville, Inc.
Opinion of the Court
This is an appeal by defendant from a judgment for plaintiff in her action to recover damages for personal injuries sustained when, while shopping in defendant’s store, she slipped on a fragment of banana peel and fell. The primary question on appeal is whether the evidence raised a submissible issue as to actionable negligence.
It is settled law that a merchant is not an insurer of the safety of a customer in his store. His duty is to exercise due care to keep his premises in reasonably safe condition. Proof that a dangerous condition of the floor existed because of the presence of some foreign matter thereon is insufficient, standing alone, to support a finding of negligence. Unless it is inferable from the evidence that the storekeeper was responsible for creating the hazard, knowledge of its existence, either actual or constructive, is essential to recovery against him. The defendant will be charged with constructive notice whenever it appears that the condition has existed for such length of time prior to the injury that, under existing circumstances, he should have discovered and remedied it in the exercise of due care; conversely, absent evidence of such preexistence, the defendant may not be so charged. Hunter v. Dixie Home Stores, 232 S. C. 139, 101 S. E. (2d) 262 (1957) ; Gilliland v. Pierce Motor Co., 235
The accident occurred at about 10:30 A. M. on a Friday morning. The store, located on North Main Street in the City of Columbia, had opened at 8:30. This was normally a busy time. There is no testimony on the point as to the particular morning. As plaintiff progressed through the store, she selected various items and placed them in a cart. Upon arriving at the produce section, she slipped and fell to the floor, thereby sustaining the injuries for which she seeks damages. After falling, she saw that she had stepped upon a small fragment of banana peel. It is conceded that the presence of this object upon the floor caused her to fall. She does not contend that the hazard was created by anyone for whose conduct defendant is responsible. Therefore, under the principles which have been stated, plaintiff had the burden of proving either that those conducting defendant’s business knew the peeling was on the floor in time to prevent plaintiff’s injury, or, that in the exercise of due care, they should have known of it.
Plaintiff contends that this burden was met by inferences reasonably to be drawn from a statement attributed by her to defendant’s produce manager, who saw her fall and came to her assistance. We quote: “Q. And the employee that helped pick you up, did he say anything after he had helped pick you up ? A. He helped me up off the floor and he said we should have had this place cleaned up but we just hadn’t got around to it yet.” Since the record is barren of any other evidence tending to fasten actual or constructive knowledge upon defendant, the whole issue depends upon the sufficiency of the employee’s statement, viewing it and any inferences which may reasonably be drawn therefrom in the light most favorable to plaintiff, to raise a submissible issue as to whether defendant knew of the hazard, or in the exercise of reasonable care should have discovered it.
We find no decision by this court on analogous facts. The following cases from other jurisdictions in which plaintiff unsuccessfully relied upon the post-accident statement of an employee as supporting an inference of notice, tend to support our conclusion: O'Leary v. Smith, 255 Mass. 121, 150 N. E. 878 (1926) ; F. W. Woolworth Co. v. Goldston, 155 S. W. (2d) 830 (Tex. Civ. App. 1941) ; Varner v. Kroger Grocery & Baking Co., 75 S. W. (2d) 585 (Mo. App. 1934) ; Uelentrup v. Switzerland Stores, Inc., 164 S. W. (2d) 650 (Mo. App. 1942). Compare Hewitt v. Katz Drug Co., 199 S. W. (2d) 872 (Mo. App. 1947). in which the court was justified in concluding that the post-accident statement reasonably supported the inference that defendant had prior knowledge of the hazard.
Plaintiff described the peeling as about an inch long, “black and withered up.” The produce manager agreed that
Plaintiff apparently argues that defendant’s unexplained failure to call as a witness the employee assigned to sweep the floor on the night before plaintiff’s injury raises adverse inferences, which support submission of the case to the jury. If so, she misconceives the force and effect to be given such inferences, which are not substantive evidence, and may not relieve a party of the necessity of proving his case or defense. 29 Am. Jur. (2d), Evidence, Sec. 187 (1967).
Reversed.
Dissenting Opinion
(dissenting).
When all of the evidence and the inferences reasonably deducible therefrom are viewed in the light most favorable to the plaintiff, I conclude that the instant case was properly submitted to the jury and, accordingly, dissent.
Certain additional pertinent facts should, I think, be stated. Plaintiff did not observe any debris on the floor, other than the piece of banana peel, but did observe dirt and what “looked like water around the stand.” From Monday through Thursday the floor of the store was cleaned only every night, but such was cleaned from time to time, as needed, on Fridays and Saturdays and, apparently, on the particular occasion had not been cleaned since the previous night.
The statement made by the produce manager gives rise to moré than one reasonable inference as to what he meant or had in mind, but I think no inference consistent with due care on the part of the defendant for the safety of its customers. It is important to note that the statement was made with reference to what had just happened and with knowledge of the appearance of the banana peel which admittedly caused the fall. Since he spoke with such reference, it is a fair and reasonable inference that he did have knowledge of the peeling on the floor and that such prompted him to make the statement. Hewitt v. Katz Drug Co., Inc., 199 S. W. (2d) 872 (Mo. App. 1947). Another reasonable inference is that, from the apperance of the banana peel, the produce manager concluded that it had been on the floor sufficiently long that such would have been discovered and removed had the place been cleaned up when it “should have”. Only slightly differently stated, another reasonable in ference is simply that from all of the circumstances the produce manager concluded that but for the defendant’s failure to more promptly and properly clean the place, the plaintiff most probably would not have been injured. It was for the jury to determine the proper inference to be drawn from his statement.
Reference
- Full Case Name
- Maude ANDERSON, Respondent, v. WINN-DIXIE GREENVILLE, INC., Appellant
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- 15 cases
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- Published