{ "id": 8527568, "name": "LILLIAN G. PRICE v. JACK ECKERD CORPORATION", "name_abbreviation": "Price v. Jack Eckerd Corp.", "decision_date": "1990-12-04", "docket_number": "No. 9010SC345", "first_page": "732", "last_page": "737", "citations": [ { "type": "official", "cite": "100 N.C. App. 732" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "61 ALR2d 110", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "279 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "562" }, { "page": "563", "parenthetical": "citation omitted" }, { "parenthetical": "emphases added" } ], "opinion_index": 0 }, { "cite": "303 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574016 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "467" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0462-01" ] }, { "cite": "363 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "212" }, { "page": "212" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358187 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "340" }, { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0337-01" ] }, { "cite": "390 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "350", "parenthetical": "citations omitted" }, { "page": "351", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523476 ], "year": 1990, "pin_cites": [ { "page": "191", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0187-01" ] } ], "analysis": { "cardinality": 524, "char_count": 10453, "ocr_confidence": 0.776, "pagerank": { "raw": 9.988170429915608e-08, "percentile": 0.5382975995897831 }, "sha256": "97967fd4db1a47416b5d068cdfe5acf1e417bd34bca095e3abe6445bbe646249", "simhash": "1:bb02d0ac047d7c5a", "word_count": 1704 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and DUNCAN concur.", "Judge DUNCAN concurred in this opinion prior to 29 November 1990." ], "parties": [ "LILLIAN G. PRICE v. JACK ECKERD CORPORATION" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiff appeals the trial court\u2019s judgment filed 1 December 1989 granting the defendant\u2019s motion for directed verdict made at the close of the plaintiff\u2019s evidence.\nThe evidence, when viewed in the light most favorable to the plaintiff, shows the following: On 6 March 1986, the plaintiff, a seventy-six-year-old woman, entered the Eckerd Drug Store located on Raeford Road in Fayetteville, North Carolina. She went to the store to buy some Turns. She searched for the Turns for some time, and when she was unable to locate them, she decided to ask a cashier for help. She walked up an aisle to the cash register behind which was a cashier, Ms. Toni- Gillis. When the plaintiff was just beyond the end of the aisle and thereby three to four steps away from Ms. Gillis, the plaintiff asked Ms. Gillis where the Turns were located, and Ms. Gillis pointed in the direction of the prescription department, which was to Ms. Gillis\u2019 left and to the plaintiffs right. The plaintiff could not see the Turns from her location because a wall of merchandise separated her from the prescription department.\nAt this point, the plaintiff was standing at an angle to Ms. Gillis. When Ms. Gillis pointed to the prescription department, the plaintiff looked over in that direction, noticing the advertisements hanging from the ceiling. She then turned on her left foot, took one step with her left foot, then took one step with her right foot, catching her right foot on a small but heavy box and falling face down upon the floor. She sustained various injuries from her fall. According to Ms. Gillis, the box had been left on the floor by one of the store managers during the process of stocking the shelves. At the time of the fall, the plaintiff was looking in the direction of the prescription department, not at the floor.\nThe plaintiff filed suit against the defendant on 18 November 1987. On 8 February 1989, the defendant filed a motion for summary judgment. The trial court denied that motion concluding that there were \u201cgenuine .issues of material fact that should be considered by the jury.\u201d The case came on for trial on 27 November 1989. After the plaintiff had presented her evidence, the defendant told the trial court that it would not be presenting any evidence. Rather, the defendant motioned for a directed verdict pursuant to N.C.G.S. \u00a7 1A-1, Rule 50, which' the trial court granted \u201con the grounds that plaintiff was contributorily [sic] negligent as a matter of law.\u201d\nAs we have recently stated,\n[t]he purpose of a motion for directed verdict is to test the legal sufficiency of the evidence for submission to the jury and to support a verdict for the non-moving party. ... In deciding the motion, the trial court must treat non-movant\u2019s evidence as true, considering the evidence in the light most favorable to non-movant, and resolving all inconsistencies, contradictions and conflicts for non-movant, giving non-movant the benefit of all reasonable inferences drawn from the evidence. . . . Non-movant\u2019s evidence which raises a mere possibility or conjecture cannot defeat a motion for directed verdict. ... If, however, non-movant shows more than a scintilla of evidence, the court must deny the motion. . . . Grant of motion for directed verdict in negligence cases is rare; the issues \u2018are ordinarily not susceptible of summary adjudication because application of the prudent man test, or any other applicable standard of care, is generally for the jury.\u2019 . . . \u2018A verdict may never be directed when there is conflicting evidence on contested issues of fact.\u2019\nMcFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350 (1990) (citations omitted). When a defendant pleads as a defense the plaintiff\u2019s contributory negligence, the defendant has \u201cthe burden of proof on the issue,\u201d and if the defendant offers no evidence, a directed verdict for the defendant \u201cbased on plaintiff\u2019s contributory negligence is appropriate only when there are no genuine issues of fact, . . . and [the] \u2018non-movant\u2019s contributory negligence [is so clearly established] that no other reasonable inference or conclusion may be drawn therefrom.\u2019 \u201d Id. at 193, 390 S.E.2d at 351 (citations omitted).\nThe issue is whether the evidence viewed in the light most favorable to the plaintiff allows but one reasonable inference, that the plaintiff was contributorially negligent with regard to her injuries.\nThe defendant argues that the plaintiff was contributorially negligent as a matter of law \u201cbecause the evidence clearly established that [the] plaintiff fell over the box because she was not looking where she was going.\u201d\n\u201cNegligence is the failure to exercise a duty of care for the safety of another.\u201d Thomas v. Dixson, 88 N.C. App. 337, 340, 363 S.E.2d 209, 212 (1988). Because the plaintiff entered the defendant\u2019s store to purchase the defendant\u2019s goods, the plaintiff is considered an invitee. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 467, 279 S.E.2d 559, 562 (1981). Because the plaintiff was an invitee, the defendant owed the plaintiff \u201cthe duty to exercise ordinary care to keep its store in a reasonably safe condition and to warn her of hidden dangers or unsafe conditions of which it had knowledge, express or implied.\u201d Id. The defendant also owed the plaintiff the duty \u201cto maintain its aisles and passageways in such condition as a reasonably careful and prudent person would deem sufficient to protect its patrons while exercising ordinary care for their own safety.\u201d Id.\nWhen a plaintiff does not discover and avoid an obvious defect, that plaintiff will usually be considered to have been contributorially negligent as a matter of law. Thomas, 88 N.C. App. at 341, 363 S.E.2d at 212. However, \u201cwhere there is \u2018some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition,\u2019 \u201d the general rule does not apply. Id. (citation omitted). Additionally, our Supreme Court has rejected an unbending application of the general rule stating that the contributory negligence defense does not automatically bar from recovery the \u201c \u2018plaintiff who trips or falls over an object on the premises of another,\u2019 \u201d even when the object was \u201c \u2018in a position at which the plaintiff would have seen it had he or she looked.\u2019 \u201d Norwood, 303 N.C. at 468, 279 S.E.2d at 563 (citation omitted).\nThe basic issue with respect to contributory negligence is whether the evidence shows that, as a matter of law, plaintiff failed to keep a proper lookout for her own safety. The question is not whether a reasonably prudent person would have seen the . . . [object] had he or she looked but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the floor.\nId. (emphases added).\nViewed in the light most favorable to the plaintiff, the evidence supports a reasonable inference or conclusion that she was not contributorially negligent in failing to look down at the floor. When she asked the cashier where the Turns were located, the cashier pointed toward the prescription department. The plaintiff looked toward the prescription department and noticed advertisements hanging from the ceiling. Paying attention to the cashier\u2019s directions, the plaintiff turned and began walking. The box over which she fell was so close to her that she had barely taken two steps before tripping over it. Whether a reasonably prudent person using ordinary care for her safety under similar circumstances would have looked down at the floor and seen the box before walking or would have proceeded in the same manner as the plaintiff is a question the jury must resolve. On these facts, a reasonable juror could find either way. Likewise, given the possibility that the plaintiff\u2019s attention was diverted by the cashier\u2019s directions and by the advertisements, we cannot say as a matter of law that the plaintiff was contributorially negligent in bringing about her injuries. Whether her attention was in fact diverted and whether the circumstances facing her would have diverted the attention of an ordinarily prudent person from discovering or seeing the box are questions of fact. If the plaintiff\u2019s attention was in fact diverted, and if the same would have happened to an ordinarily prudent person, then the general rule would not apply, and the plaintiff cannot be considered to have been contributorially negligent as a matter of law. Thomas. Accordingly, the judgment of the trial court directing verdict for the defendant is vacated, and the case is remanded for a new trial.\nNew trial.\nJudges ORR and DUNCAN concur.\nJudge DUNCAN concurred in this opinion prior to 29 November 1990.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "McNamara, Pipkin, Knott & Carruth, by J. T. Knott, III and Ashmead P. Pipkin, for plaintiff-appellant.", "Bell, Davis & Pitt, P.A., by J. Dennis Bailey and Joseph T. Carruthers, for defendant-appellee." ], "corrections": "", "head_matter": "LILLIAN G. PRICE v. JACK ECKERD CORPORATION\nNo. 9010SC345\n(Filed 4 December 1990)\nNegligence \u00a7 57.5 (NCI3d)\u2014 fall in store \u2014contributory negligence \u2014 directed verdict for defendant improper\nThe trial court should not have granted a directed verdict for defendant in an action arising from plaintiff\u2019s fall in a store where plaintiff asked a cashier for help in locating an item; looked in the direction in which the cashier pointed and noticed advertisements hanging from the ceiling; took one step with her left foot and one step with her right foot; caught her right foot on a small but heavy box; and fell face down upon the floor. Whether a reasonably prudent person using ordinary care under similar circumstances would have looked down at the floor and seen the box before walking is a question the jury must resolve; likewise, given the possibility that plaintiff\u2019s attention was diverted by the cashier\u2019s directions and by the advertisements, it cannot be said as a matter of law that plaintiff was guilty of contributory negligence in bringing about her injuries.\nAm Jur 2d, Premises Liability \u00a7\u00a7 782, 783.\nLiability of proprietor of store, office, or similar business premises for injury from fall due to presence of obstacle placed or dropped on floor. 61 ALR2d 110.\nJudge DUNCAN concurred in this opinion prior to 29 November 1990.\nAPPEAL by plaintiff from judgment filed 1 December 1989 by Judge James H. Pou Bailey in WAKE County Superior Court. Heard in the Court of Appeals 24 October 1990.\nMcNamara, Pipkin, Knott & Carruth, by J. T. Knott, III and Ashmead P. Pipkin, for plaintiff-appellant.\nBell, Davis & Pitt, P.A., by J. Dennis Bailey and Joseph T. Carruthers, for defendant-appellee." }, "file_name": "0732-01", "first_page_order": 764, "last_page_order": 769 }