Hill v. Allied Supermarkets, Inc. , 42 N.C. App. 442 ( 1979 )

257 S.E.2d 68 (1979) 42 N.C. App. 442

Willie Mae HILL
v.
ALLIED SUPERMARKETS, INC.

No. 7826SC739.

Court of Appeals of North Carolina.

July 31, 1979.

Chambers, Stein, Ferguson & Becton by Melvin L. Watt, Charlotte, for plaintiff-appellant.

Walker, Palmer & Miller, by Douglas M. Martin, Charlotte, for defendant-appellee.

PARKER, Judge.

That a store proprietor is not an insurer of the safety of customers on his premises and that liability for injury suffered by a customer in his store attaches only for such injuries as result from actionable negligence on his part "is a principle of the law of negligence so familiar and so firmly established as almost to obviate the necessity of citing supporting authority." Long v. Food Stores, 262 N.C. 57, 59, 136 S.E.2d 275, 277 (1964); see Annot., 62 A.L. R.2d 6 (1958). The proprietor does owe to his customers the duty to exercise ordinary care to maintain in a reasonably safe condition those portions of his premises which he may expect they will use during business hours and to give warning of hidden perils or unsafe conditions of which he knows or of which in exercise of reasonable inspection and supervision he should have knowledge. Dawson v. Light Co., 265 N.C. 691, 144 S.E.2d 831 (1965); Gaskill v. A. and P. Tea Co., 6 N.C.App. 690, 171 S.E.2d 95 (1969). No inference of negligence on the part of the store proprietor arises from the mere fact of a customer's fall on the floor of his store during business hours, the doctrine of res ipsa loquitur not being applicable. Hinson v. Cato's, Inc., 271 N.C. 738, 157 S.E.2d 537 (1967).

When claim is made on account of injuries caused by some substance on the floor along and upon which customers will be expected to walk, in order to justify recovery, it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew, or by the exercise of due care should have known, of its presence in time to have removed the danger or given proper warning of its presence. Thus, before plaintiff can be permitted to recover she must first offer evidence tending to show (1) negligent construction or maintenance resulting in a condition which would cause a person of ordinary care to foresee that some injury was likely to result therefrom; and (2) express or implied notice of such condition.

Pratt v. Tea Co., 218 N.C. 732, 733, 12 S.E.2d 242, 243 (1940).

Applying these well established principles to the evidence in the present case, it is apparent that, even when the evidence is viewed in the light most favorable to the plaintiff, it is insufficient to take the case to the jury on an issue as to defendant's negligence. We hold, therefore, that defendant's motion for directed verdict was properly allowed.

There was no evidence from which the jury could find either what was the source of the water in which plaintiff fell or how long the water had been there. Although plaintiff testified that "the water, I guess, run from there" (referring to the vegetable bin), and that "[t]he water was standing right near the vegetable bin and had run out," it is clear from her total testimony that her statements identifying the bin as the source of the water were no more than conjectures on her part arrived at solely because of the proximity of the water to the bin. The only other witness to testify to plaintiff's fall, her niece, similarly testified that she "would say maybe it (referring to the water) ran from under the frozen tray the unit to hold the frozen vegetables, out from under the trays, . . ." and that she "would say yes" to a leading question asked by plaintiff's counsel as to whether there was "evidence of any stream of water from the vegetable bin to the puddle." Here again, however, it is apparent that these were conclusory conjectures of the witness based solely on the proximity of the water to the bin. Moreover, even if the speculations of the plaintiff and her witness identifying the bin as the source of the water should turn out to be correct, there is no evidence as to how long the water had been there nor was there any evidence to show that the defendant knew or in the exercise of reasonable inspection should have known of its presence in time to have removed it before plaintiff stepped into it and fell. There was no evidence that the freezing components of the vegetable bin were malfunctioning in any way or that, if they were, defendant knew or in the exercise of reasonable inspection should have known that this was the case. The testimony of plaintiff's niece that the water "maybe dripped" and that "[w]hen something is defrosting, the more it defrosts or runs the more water," obviously represents no more than speculation on her part. Such conjectures as to possibilities furnish no adequate basis for a jury finding that water in fact did drip from the vegetable bin as result of defrosting and that the dripping water did accumulate on the floor over a long enough period of time to give defendant notice of its presence. Upon all of the evidence, the jury could do no more than speculate about the water's source and about the length of time it had been on the floor.

In passing upon the sufficiency of the evidence the ultimate inquiry is whether it is such as might reasonably satisfy an impartial mind of the truth of the proposition sought to be proved. . . . [T]he evidence must do more than raise a suspicion, conjecture, guess, possibility or chance.

2 N.C. Evidence (Brandis rev.) § 210, pp. 152-53.

The evidence in this case is insufficient to "reasonably satisfy an impartial mind" either as to the source of the water or as to whether it had been on the floor long enough for defendant to be charged with notice of its presence.

The judgment appealed from is

Affirmed.

MITCHELL and HARRY C. MARTIN, JJ., concur.