DAVID L. PAGE and wife,
CAROLYN A. PAGE,
Plaintiffs-Appellants,
v
.
Guilford County
No. 01 CVS 12017
HARRIS TEETER, INC.,
Defendant-Appellee.
McGEE, Judge.
David L. Page and Carolyn A. Page (Page) (collectively
plaintiffs) filed a complaint on 14 November 2001 against Harris
Teeter, Inc. (defendant) alleging injuries from a fall at
defendant's grocery store. The trial court granted summary
judgment in favor of defendant on 24 February 2003.
Page testified in a deposition that she entered the Harris
Teeter grocery store in Greensboro, North Carolina at 9:30 p.m. on
25 June 2001. Page completed her shopping and before checking out,
she went to the women's restroom near the front of the store. Upon
exiting the restroom, Page reached for her shopping cart. In doingso, Page alleged she slipped and fell when she stepped on
applesauce that had been spilled on the floor in the area of the
restrooms. As a result of her fall, Page broke her left wrist in
two places, fractured her tailbone, and injured her knee. Her knee
injury later required surgery.
Prior to Page's fall, a jar of applesauce had dropped and
shattered on the floor near the cash registers at the front of the
store. Christopher Nall (Nall), who was employed by defendant as
a grocery bagger and cashier, testified in his deposition that he
was instructed to clean up the spill. Nall went first to a broom
closet near the front of the store where he found a broom and a
dustpan, which he used to clean up most of the applesauce and
broken glass. He threw out the waste and returned the broom and
dustpan to the broom closet in the front of the store. He then
looked around the front of the store to see if he could find a mop
and bucket. When he could not, he walked to the back of the store
where he did find a mop and bucket. He finished cleaning up the
spill and put down a warning cone to caution customers. Nall
claimed that he "didn't even go near" the area where Page fell. He
further stated that he had "[a]bsolutely no idea" how applesauce
ended up on the floor near the area of the restrooms, far away from
the site of the initial spill.
Approximately five to ten minutes after Nall cleaned up the
spill, Page slipped near the area of the restrooms. A store
customer heard Page's scream and went to help her. At Page's
request, the customer went to find Page's husband, who was waitingoutside of the store in their truck.
Plaintiffs argue that the trial court erred in granting
summary judgment because there were genuine issues of material fact
which should have been decided by a jury. For the reasons stated
below, we disagree.
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). The movant has the burden of "establishing the lack of any
triable issue of fact." Pembee Mfg. Corp. v. Cape Fear Constr.
Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). This burden
may be met by "proving that an essential element of the opposing
party's claim is nonexistent, or by showing through discovery that
the opposing party cannot produce evidence to support an essential
element of his claim[.]" Collingwood v. G.E. Real Estate Equities,
324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). "Once a moving party
meets its burden, then the nonmovant must 'produce a forecast of
evidence demonstrating that the plaintiff will be able to make out
at least a prima facie case at trial.'" Roumillat v. Simplistic
Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)
(quoting Collingwood, 324 N.C. at 66, 376 S.E.2d at 427). "When a
motion for summary judgment is made and supported as provided in
[Rule 56], an adverse party may not rest upon the mere allegations
or denials of his pleading, but his response, by affidavits or asotherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial." N.C. Gen. Stat.
§ 1A-1, Rule 56(e) (2003). "All inferences of fact must be drawn
against the movant and in favor of the nonmovant." Roumillat, 331
N.C. at 63, 414 S.E.2d at 342.
Under North Carolina case law, a store owner does not insure
its patrons against slipping and falling. Hinson v. Cato's, Inc.,
271 N.C. 738, 738, 157 S.E.2d 537, 538 (1967). A store owner's
duty is to use "ordinary care to keep its store in reasonably safe
condition and to warn of hidden dangers or unsafe conditions of
which the store owner knows or should know." Thompson v. Wal-Mart
Stores, Inc., 138 N.C. App. 651, 653, 547 S.E.2d 48, 50 (2000).
Thus, to hold a defendant liable, an injured plaintiff must show
either that the defendant (1) "negligently created the condition
causing the injury" or (2) "negligently failed to correct the
condition after actual or constructive notice of its existence."
Nourse v. Food Lion, Inc., 127 N.C. App. 235, 238, 488 S.E.2d 608,
611 (1997), aff'd, 347 N.C. 666, 496 S.E.2d 379 (1998).
In the case before us, plaintiffs presented no evidence
indicating that defendant or any of its employees possessed actual
knowledge of a dangerous condition, being the spilled applesauce on
the floor near the restrooms. No evidence has been presented that
anyone, including Page herself, saw the spilled applesauce on the
floor prior to her fall. Page admitted that she had no reason to
believe that any employee of defendant knew that there was an
applesauce spill on the floor near the restroom area. As there is no evidence that any employee of defendant had
actual knowledge of the spill by the restrooms, the inquiry must
turn to whether defendant "was negligent because it had
constructive knowledge of the spill." See Thompson, 138 N.C. App.
at 654, 547 S.E.2d at 50. The burden is on a plaintiff to show
that a dangerous condition existed for such a length of time that
the defendant should have known of its existence through the
exercise of reasonable care. Id. "Evidence that the condition
(causing the fall) on the premises existed for some period of time
prior to the fall can support a finding of constructive notice."
Carter v. Food Lion, Inc., 127 N.C. App. 271, 275, 488 S.E.2d 617,
620, disc. review denied, 347 N.C. 396, 494 S.E.2d 408 (1997). A
plaintiff may establish constructive knowledge in one of two ways.
Thompson, 138 N.C. App. at 654, 547 S.E.2d at 50. A plaintiff can
either "present direct evidence of the duration of the dangerous
condition" or "present circumstantial evidence from which the fact
finder could infer that the dangerous condition existed for some
time." Id. An inference "must be based on established facts, not
upon other inferences." Id.
Plaintiffs set forth three theories by which an inference is
raised that would allow the jury to conclude that defendant
"negligently failed to correct the condition after notice . . . of
its existence." Nourse, 127 N.C. App. at 238, 488 S.E.2d at 611.
First, Nall, the employee who cleaned up the original applesauce
spill, could have unwittingly tracked the applesauce to the
restroom area as he was searching for a wastebasket to dispose ofthe applesauce and glass. Secondly, Nall could have tracked the
applesauce to the restroom area while he was searching for a mop
and bucket. Thirdly, an unidentified customer could have tracked
the applesauce from the area of the cash registers to the restroom
area by walking through the spill, either before Nall swept it up,
or while Nall was searching for a mop and bucket.
Plaintiffs' theories one and three are no more than "mere
speculation or conjecture." See Williamson v. Food Lion, Inc., 131
N.C. App. 365, 369, 507 S.E.2d 313, 316 (1998), aff'd, 350 N.C.
305, 513 S.E.2d 561 (1999). Plaintiffs offer no evidence that Nall
tracked the applesauce while looking for a waste receptacle.
Similarly, plaintiffs offer no evidence that an unidentified
customer tracked the applesauce to the restroom area. These
inferences must therefore be disregarded.
The crux of plaintiffs' argument lies with the second asserted
theory that Nall tracked the applesauce while searching for a mop
and bucket. Though plaintiffs contend that Nall walked over to the
restroom area, Nall's testimony indicates that he never entered
the restroom area where Page fell. Nall denied going near the
restroom area several times during his deposition:
Q. Okay. Did you go near or into the
ladies' room while you were cleaning up
that spill?
A. No.
. . . .
Q. . . . So it wasn't necessary for you to
go near the ladies' room?
A. No.
. . . .
Q. . . . So you have no idea how applesauce
could have been left near the ladies'
room?
A. Right. . . . I thought that was crazy,
how someone could fall way over there.
Thus, throughout his deposition, Nall specifically and repeatedly
denied that he went near the restroom area. However, plaintiffs
rely on one specific statement by Nall, "[s]o I went over there[,]"
to argue that Nall tracked the applesauce to the restroom area.
This statement is embedded in the following portion of Nall's
deposition testimony:
Q. Okay. What was stored there near the
ladies' restroom in the way of cleaning
materials?
A. Usually a mop bucket. That's for, like,
cleaning the bathrooms. They get pretty dirty
sometimes, I guess. Maybe a broom sometimes
but mostly_-it's usually just a mop bucket.
Q. Okay. And was that the mop bucket that
was employed in cleaning up the applesauce?
A. Huh-uh. No.
Q. It was not?
A. No, because I remember_-I remember_-like,
I mean, you see something spilled. You don't
want to_-you want to look for a mop bucket.
You don't want to go all the way to the back
of the store and get a mop bucket, but I
didn't_-I didn't see one. I looked all
around. I looked over_-I didn't go in the
bathroom to look, but I just glanced over
there. I didn't see one, so I went to the
back of the store to get it.
Q. Yeah. But you did look in there at the
ladies' room to see if there was a mop bucket
available to clean up the applesauce?
MR. BAILEY: Object to form.
A. Well, I glanced over there. The bathrooms
are kind of_-like, in a sense, there's like a
invisible door.
Q. (By Mr. McLendon) Yeah.
A. And then the bathrooms are back behind
there.
Q. Right.
A. Where I was at, I looked over there, and I
didn't see one.
Q. Right.
A. So I went over there.
Q. But you did notice that_-you did look to
see if there was a bucket available there at
the bathroom or near the bathroom?
A. Uh-huh.
Q. And you didn't see one?
A. I didn't see one, but there could have
been one there. Like, there's a_-there's
like_-it's like a wall behind there, and,
like, if somebody is standing there, you
wouldn't be able to see them. So there might
have been a mop bucket there and I just
didn't_-.
Plaintiffs argue that the statement, "[s]o I went over there[,]"
supports a reasonable inference that Nall tracked the applesauce to
the restroom area. However, this testimony does not amount to an
assertion that Nall, in fact, walked into the restroom area where
Page fell. Rather, read in context with the rest of the deposition
testimony where Nall unambiguously rejected the assertion that he
walked into the restroom area, this statement more likely means
that he looked in the general direction of the restroom area fromsome unspecified distance. Nall was not asked during his
deposition how close he walked to the restroom area.
Plaintiffs cite Long v. Food Stores, 262 N.C. 57, 136 S.E.2d
275 (1964) to support their argument that the failure to prove
exactly how the applesauce was tracked to the restroom area is not
fatal to their claim. In Long, the plaintiff testified that she
slipped on mashed and dusty grapes on the floor. Id. at 58, 136
S.E.2d at 277. Alongside the mashed grapes, there was "dust and
lint on the floor. The grapes that were not mashed were dirty and
juicy, full of lint and dirt." Id. at 59, 136 S.E.2d at 277. Our
Supreme Court held that two reasonable inferences were permitted to
be drawn. Either a store employee had swept the grapes and dirt
into that location or the grapes had been there for a sufficient
length of time to become dirty and dusty, thereby placing the
defendant on constructive notice of their existence. Id. at 61,
136 S.E.2d at 278-79. Long, however, is distinguishable from the
present case. Here, plaintiffs' argument relies wholly upon
complete speculation regarding how applesauce ended up on the floor
by the restroom area. Plaintiffs are unable to put forth evidence
upon which to rest a reasonable inference. According to
plaintiffs' argument, Nall, or any one of numerous unidentified
customers, could have tracked the applesauce. Thus, this argument
lacks evidence that would lend credence to this speculation.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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