BARBARA APPEL,
Plaintiff
v
.
Durham County
No. 00 CVS 4358
FOOD LION, L.L.C.,
Defendant
Simons & Associates, by Douglas T. Simons for plaintiff-
appellee.
The Law Office of John T. Benjamin, Jr., by John T. Benjamin,
Jr. and William E. Hubbard, for defendant-appellant.
HUNTER, Judge.
Food Lion, L.L.C. (“defendant”), presents the following
issues for our consideration: (I) Whether the trial court
erroneously denied defendant's motion for a directed verdict and
motion for judgment notwithstanding the verdict because the
evidence failed to establish negligence and proved plaintiff's
contributory negligence, and (II) whether the trial court
erroneously denied defendant's motion for a new trial. Food Lion
also contends the trial court erroneously denied defendant's
motions to quash plaintiff's subpoena duces tecum and erroneouslyinstructed the jury. After careful review we conclude the trial
court erroneously denied defendant's motion for a directed verdict.
The pertinent facts indicate that on 30 October 1999, Barbara
Appel (“plaintiff”), a 67-year old woman, was shopping with her
husband, Kenneth Appel (“Mr. Appel”), in a Durham, North Carolina,
Food Lion grocery store. Plaintiff was walking down the aisles
looking at the products and prices while her husband pushed the
grocery cart behind her. She was wearing tennis shoes, her glasses
and had her purse on her arm. As she was walking down the laundry
detergent aisle looking at the price tags for specials, plaintiff
stepped into something, looked down and realized she had stepped
into some liquid detergent. Immediately thereafter, she fell.
After she fell, she saw a bottle of liquid detergent with the cap
off against the side of the shelf.
As her husband was unable to help her up, Mr. Appel notified
store management. Store management contacted the paramedics and
went to assist plaintiff. Mr. Appel drove his wife to the
hospital. Due to the fall, plaintiff had a rotary cuff tear, torn
ligaments in her arm and underwent surgery.
On 30 October 1999, the assistant store manager, Adam Smith
(“Mr. Smith”), was working. According to Food Lion policy, the
manager walks the entire store at 8:00 a.m., 10:00 a.m., 2:00 p.m.
and 4:00 p.m. to make sure the store is neat, clean, that there is
nothing on the floor, and that there are no expired products on
display for sale. On 30 October 1999, Mr. Smith began his store
walk at 10:00 a.m. and arrived to the laundry detergent aisle atapproximately 10:45 a.m. He testified that the floor was clean and
free of debris at that time. From 11:00 a.m. until 12:30 p.m., Mr.
Smith testified he was in his office doing paperwork. Mr. Smith
did not see plaintiff's accident, however, he went to her
assistance after being notified by a customer that plaintiff had
fallen. He called paramedics and obtained information for the
accident report he had to submit to Food Lion's Risk Management
Department.
The time of the accident is disputed by the parties. The
accident report submitted by Mr. Smith indicates the accident
occurred at 12:30 p.m. However, Mr. Smith testified that 12:30
p.m. is the time at which he saw plaintiff leave the store and that
he believed the accident occurred between 11:30 a.m. and noon.
Plaintiff did not state what time the accident occurred during her
testimony; however, the emergency room report indicates she
informed the ER doctors the accident occurred at 12:30 p.m.
Nonetheless, Mr. Smith testified that he did not know the liquid
detergent had spilled prior to plaintiff's accident and that no one
had notified him of the spill. Mr. Smith testified that Mr. Appel
informed him plaintiff caused the spill by standing on the bottom
shelf and reaching for a bottle of liquid detergent. The bottle
slipped out of her hands, hit the floor and busted. She stepped
down into the liquid and fell. Mr. Appel denied making this
statement and Mr. Smith's accident report made on 30 October 1999
does not include this statement. At the beginning of the trial, defendant moved to quash two
subpoenas sent by plaintiff requesting copies of any accident
reports made on 30 October 1999. Essentially, defendant contended
the documents should have been requested by using the appropriate
procedure under the Rules of Civil Procedure and not by subpoena.
The trial court denied defendant's motion to quash. After all the
testimony was completed, defendant moved for a directed verdict
which was denied by the trial court. After rejecting defendant's
proposed jury instructions, the trial court instructed the jury and
a verdict was returned in favor of plaintiff. The jury found
defendant negligent, determined plaintiff was not contributorily
negligent and awarded damages in the amount of $50,000.00. After
judgment was entered on the verdict on 10 October 2003, defendant
moved for judgement notwithstanding the verdict and for a new
trial. From the denial of the motions for a directed verdict,
judgment notwithstanding the verdict and for a new trial, defendant
appeals.
Defendant argues the evidence did not establish defendant's
negligence, and therefore, the trial court erroneously denied its
motion for a directed verdict and judgment notwithstanding the
verdict. Specifically, defendant argues plaintiff failed to
establish by the greater weight of the evidence that defendant had
actual or constructive knowledge of the detergent spill.
As explained in Thompson v. Wal-Mart Stores, Inc., 138 N.C.
App. 651, 547 S.E.2d 48 (2000), when reviewing the grant or denial
of a directed verdict in the context of a slip and fall case: Our review of [the grant or denial of] a
[motion for a] directed verdict is limited to
a determination of whether the evidence was
sufficient to go to a jury. We review the
evidence in the light most favorable to the
non-moving party, accepting the non-moving
party's evidence as true and giving her the
benefit of reasonable inferences. Reasonable
inferences must be drawn from established
facts, not other inferences or speculation.
To present a prima facie case based on
negligence, a plaintiff must present evidence
that the defendant had a duty to conform to a
certain standard of conduct, the defendant
breached that duty, and the breach of duty was
the proximate cause of the plaintiff's injury.
In North Carolina, a store owner's duty
to its customers 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. To show that a store owner
breached its duty of care, a plaintiff must
show that the store owner either negligently
created the condition causing her injury or
negligently failed to correct the condition
after actual or constructive knowledge of its
existence.
Thompson, 138 N.C. App. at 653-54, 547 S.E.2d at 49-50 (citations
omitted). In this case, no evidence was presented indicating
defendant either negligently caused the spill or had actual
knowledge of the spill's existence prior to plaintiff's fall.
Indeed, plaintiff testified that she did not know who caused the
spill and she did not know whether defendant knew of the spill's
existence prior to the fall. Mr. Smith testified that the floor
was clean and free of debris at 10:45 a.m. and that no one had
informed him of a spill prior to the plaintiff's fall. Mr. Smith
also testified that if one of the employees had either seen or been
notified of the spill, the employee would have reported the spillto management. Mr. Smith testified that none of the employees had
informed him of the spill prior to the accident. Therefore, in
order to establish defendant's negligence, plaintiff would have had
to present sufficient evidence of defendant's constructive
knowledge of the spill's existence. See id., see also Williamson
v. Food Lion, Inc., 131 N.C. App. 365, 507 S.E.2d 313 (1998).
The plaintiff bears the burden of showing
that a dangerous condition existed for such a
period of time that the defendant through the
exercise of reasonable care should have known
of its existence. Constructive knowledge of a
dangerous condition can be established in two
ways: the plaintiff can present direct
evidence of the duration of the dangerous
condition, or the plaintiff can present
circumstantial evidence from which the fact
finder could infer that the dangerous
condition existed for some time.
Circumstantial evidence may be used to
establish an inference. However, inferences
must be based on established facts, not upon
other inferences. In other words, a jury may
draw an inference from a set of facts, but may
not then use that inference to draw another
inference.
Thompson, 138 N.C. App. at 654, 547 S.E.2d at 50 (citations
omitted). In this case, plaintiff did not offer any direct
evidence of when the spill occurred or how long the spill had been
on the floor. Thus, plaintiff was required to provide
circumstantial evidence from which the jury could infer the liquid
laundry detergent spill had existed on the floor for some time.
The evidence viewed in the light most favorable to plaintiff
indicates the assistant store manager walked the store beginning at
10:00 a.m. and did not find any debris or liquid on the laundry
detergent aisle floor at 10:45 a.m. Although disputed, viewed inthe light most favorable to plaintiff, the accident occurred at
12:30 p.m., the time indicated on the store accident report and the
time plaintiff told emergency room doctors the accident occurred.
Between 10:45 a.m. and 12:30 p.m. store management did not “walk”
the store. Food Lion policy did not require management walks
between the 10:00 a.m. and 2:00 p.m. store walks, which is
typically the store's busiest time period when employees are
assisting customers. Between 10:45 a.m. and 12:30 p.m., none of
the store personnel or customers reported a spill on the floor.
Plaintiff testified that there were no footprints or shopping cart
tire tracks in the spill. The store manager testified that at the
time of the accident, the floor was clean except in the area where
the spill was located.
Defendant contends this case is similar to Thompson v. Wal-
Mart Stores, Inc., 138 N.C. App. 651, 547 S.E.2d 48, and Williamson
v. Food Lion, Inc., 131 N.C. App. 365, 507 S.E.2d 313. In
Williamson, the plaintiff allegedly slipped on a grape in a Food
Lion grocery store. Williamson, 131 N.C. App. at 366, 507 S.E.2d
at 314. The plaintiff had entered the store at approximately 8:30
a.m. and approximately twelve minutes later, plaintiff slipped on
a grape and fell. Id. The plaintiff did not see the grape prior
to her fall, but opined the black juice smeared on the floor
afterwards indicated to her that the floor must have been dirty.
Id. A Food Lion employee had walked down the aisle in question at
7:34 a.m. and 7:59 a.m. and did not report any grapes were on the
floor. Id. Rather, the Food Lion employee reported a loaf ofbread was on the floor and picked it up. Id. Thus, approximately
thirty minutes before the plaintiff's accident in Williamson, the
evidence indicated the floor was free of debris and dirt. The
trial court granted Food Lion's motion for summary judgment. Id.
We affirmed the trial court's grant of summary judgment because the
“plaintiff [was] unable to establish through anything more than
'mere speculation or conjecture' that defendant knew or should have
known of the grape, and as such her case [could] not withstand
defendant's motion for summary judgment.” Williamson, 131 N.C.
App. at 369, 507 S.E.2d at 316.
In Thompson, the plaintiff slipped and fell while reaching for
an item in the shampoo aisle. Thompson, 138 N.C. App. at 652, 547
S.E.2d at 49. On the floor, the plaintiff saw some small pieces of
glass tucked up under the overhang of the lowest shelf. Id. She
also saw and felt a puddle that was clear, slimy and thick. Id.
After reporting her fall to an employee, the employee cleaned up
the shampoo and the plaintiff continued shopping and left the
store. Id. The trial court directed verdict in favor of Wal-Mart.
Id. at 653, 547 S.E.2d at 49. This Court affirmed the directed
verdict because constructive knowledge could be established in
Thompson only by using an inference to draw another inference. Id.
at 655, 547 S.E.2d at 50. As “[r]easonable inferences must be
drawn from established facts, not other inferences or
speculation[,]” we concluded the trial court correctly granted Wal-
Mart's motion for a directed verdict. Id. at 653, 547 S.E.2d at
49. Plaintiff argues this case is most analogous to Furr v. K-Mart
Corp., 142 N.C. App. 325, 543 S.E.2d 166 (2001). In Furr, the
plaintiff slipped and fell in some clear liquid that was on the
floor in front of a column of shelves holding Wisk detergent
containers. Id. at 326, 543 S.E.2d at 167. Above the liquid there
was a pink, dried substance on the tops and sides of the shelves
holding the Wisk containers, as well as on the base structure
between the lowest shelf and the floor. Id. The plaintiff also
presented photographs of the accident area taken four days later
that also showed the pink substance on the tops and sides of the
lowest two shelves. Id. at 326, 543 S.E.2d at 167-68. In
reversing summary judgment in favor of K-Mart, this Court stated
the plaintiff presented “evidence . . . sufficient to raise an
inference that the liquid detergent had been leaking for such a
length of time that defendant should have known of its existence in
time to have removed the danger or to have given proper warning of
its presence.” Id. at 328, 543 S.E.2d at 169. This conclusion was
based upon the evidence that the liquid had leaked from a container
on a shelf, down the side of the shelving structure onto the floor
and that some of the liquid had dried. Id. This case is not
analogous to Furr. Unlike the circumstances in Furr, none of the
liquid had dried nor had any of the liquid leaked from a container
on a shelf. Rather, the bottle was on the floor, the puddle did
not have any debris, footprints or tire tracks in it, and the rest
of the aisle was clean. We find the facts of this case are analogous to Williamson and
Thompson. In this case, plaintiff argues we can infer constructive
knowledge of the spill from the fact that no one checked the
cleanliness of the floor between 10:45 a.m., when the assistant
store manager was on the laundry detergent aisle, and 12:30 p.m.,
when the accident occurred. However, there is no indication of
when during this one hour and forty-five minute time period the
spill occurred. The lack of debris, footprints or tire tracks
through the liquid tends to indicate the spill had not been there
for a lengthy period of time. We conclude that on these facts
there was insufficient evidence of constructive knowledge.
Accordingly, the trial court erroneously denied defendant's motion
for a directed verdict.
As we have concluded the trial court should have granted
defendant's motion for a directed verdict, we do not reach
defendant's remaining arguments.
Reversed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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