{
  "id": 8523533,
  "name": "ADELAIDE M. KREMER and husband, H. H. KREMER, Plaintiffs v. FOOD LION, INC., Defendant",
  "name_abbreviation": "Kremer v. Food Lion, Inc.",
  "decision_date": "1991-03-19",
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    "judges": [
      "Chief Judge HEDRICK and Judge ORR concur."
    ],
    "parties": [
      "ADELAIDE M. KREMER and husband, H. H. KREMER, Plaintiffs v. FOOD LION, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant first assigns error to the trial court\u2019s denial of defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict. The party moving for a directed verdict bears a heavy burden. Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987). The movant\u2019s burden is even heavier in cases such as the one before us in which the principal issues are negligence and contributory negligence. Id. Issues arising in negligence cases are ordinarily not susceptible to summary adjudication because application of the applicable standard of care is generally for the jury. William v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979) (Citation omitted). A motion by a defendant for a directed verdict under N.C. Gen. Stat. \u00a7 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). On such a motion, the plaintiff\u2019s evidence must be taken as true and the evidence must be considered in the light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference to be drawn therefrom. Id. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Id. (Citations omitted). A motion for judgment notwithstanding the verdict is essentially a renewal of a motion for directed verdict and the rules regarding the sufficiency of the evidence to go to the jury are equally applicable. Taylor v. Walker, supra.\nThe owner of a store is not an insurer of its customer\u2019s safety but is under a duty to exercise ordinary care in keeping the store\u2019s aisles and passageways reasonably safe so as not to unnecessarily expose customers to danger. Rives v. Great Atlantic & Pacific Tea Co., 68 N.C. App. 594, 315 S.E.2d 724 (1984) (Citations omitted). Viewing the evidence in the light most favorable to plaintiff, defendant created a hazard and unnecessarily exposed customers to danger by leaving two bags of dog food protruding into the aisle next to the ice cream cooler. Plaintiff testified that the store manager reprimanded the stock boy upon discovering the bags in that location, saying, \u201cYou don\u2019t leave anything in an aisle protruding the way that was. That\u2019s not the way we put up a display. Get those damn bags out of here.\u201d Plaintiff also testified that the stock boy failed to deny responsibility. This evidence was sufficient to take the issue of defendant\u2019s negligence to the jury.\nDefendant further contends that the trial court erred by admitting the statements made by the store manager as being inadmissible hearsay. However, the manager\u2019s statements are admissible as an exception to the hearsay rule for admissions by a party opponent which include \u201cstatements by [a party\u2019s] agent or servant concerning a matter within the scope of his agency or employment made during the existence of his relationship.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d)(0) (1988).\nDefendant also contends that the trial court erred in denying defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict because the evidence showed that plaintiff was contributorily negligent. Defendant is not entitled to a directed verdict or a judgment notwithstanding the verdict unless the evidence, viewed in the light most favorable to the plaintiff, shows contributory negligence as a matter of law. Norwood v. SherwinWilliams Co., 303 N.C. 462, 279 S.E.2d 559 (1981). Although failure to discover an obvious defect will usually be considered contributory negligence as a matter of law, this general rule does not apply when circumstances divert the attention of an ordinarily prudent person from discovering an existing dangerous condition. Id. Our Supreme Court has stated that in such cases the issue of contributory negligence is not whether the reasonably prudent person would have seen the object had he looked, but whether a person using ordinary care for his or her own safety under similar circumstances would have looked down at the floor. Id.; See also Hicks v. Food Lion, Inc., 94 N.C. App. 85, 379 S.E.2d 677 (1989). Viewing the evidence in the light most favorable to the plaintiff, plaintiff walked along the left wall of defendant\u2019s store and after deciding against purchasing beer, she turned to the left in the direction of the ice cream cooler and store front. Evidence was offered that items were plaeed above the cooler designed to draw the attention of shoppers. The dog food bags were at her feet and after taking two steps she fell over the dog food bags protruding into the aisle. No other displays were in this five foot area and this evidence supports a finding that plaintiff acted prudently in looking ahead of herself and not at her feet. The trial court properly denied defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict.\nDefendant also assigns error to the trial court\u2019s failure to set aside the verdict and order a new trial pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59 on the grounds of the manifest disregard by the jury of the proper instructions of the court and insufficiency of the evidence to justify the verdict. Having determined that sufficient evidence exists to support a verdict for plaintiff, we find no error in the trial court\u2019s failure to set aside the verdict.\nDefendant assigns error to the trial court\u2019s failure to grant defendant\u2019s motion for \u201cremittitur\u201d on the grounds that the jury manifestly disregarded the court\u2019s proper jury instructions and the insufficiency of the evidence to justify the verdict as to damages. Defendant contends the verdict is excessive and that the jury manifestly disregarded the trial court\u2019s instructions to the jury to refrain from basing their verdict on anger for the defendant or sympathy for the plaintiff. In his assignment of error and the discussion found in his brief, defendant fails to mention N.C. Gen. Stat. \u00a7 1A-1, Rule 59. Nevertheless, we address defendant\u2019s contention involving \u201cremittitur\u201d in the context of Rule 59. Rule 59 of the North Carolina Rules of Civil Procedure states \u201cA new trial may be granted . . . [when] ... (6) excessive or inadequate damages appear[] to have been given under the influence of passion or prejudice. . . .\u201d\n[I]t is plain that a trial judge\u2019s discretionary order pursuant to G.S. [\u00a7] 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown. . . . [A]n appellate court should not disturb a discretionary Rule 59 motion unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a miscarriage of justice.\nWorthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). Initially we note that defendant did not request that the trial court make findings of fact or enter conclusions of law on its motion. See Andrews v. Peters, 318 N.C. 133, 347 S.E.2d 409 (1986). Second, we note that defendant\u2019s brief only makes limited reference to the evidence on plaintiff\u2019s injuries and damages, attempting to cast the evidence in a light favorable to defendant. Plaintiff\u2019s injuries were substantial, requiring two operations on her hip. Her recuperation was slow and she suffered a partial permanent disability in the use of her right leg. On this record, we can find no abuse of discretion in the trial court\u2019s ruling.\nNo error.\nChief Judge HEDRICK and Judge ORR concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Brown, Robbins, May, Pate, Rich, Scarborough & Burke, by P. Wayne Robbins and Carol M. White, for plaintiffs-appellees.",
      "Anderson, Broadfoot, Johnson & Pittman, by T. Alan Pittman, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "ADELAIDE M. KREMER and husband, H. H. KREMER, Plaintiffs v. FOOD LION, INC., Defendant\nNo. 9020SC597\n(Filed 19 March 1991)\n1. Negligence \u00a7 57.5 (NCI3d)\u2014 slip and fall \u2014 grocery store-obstructed aisle \u2014directed verdict for defendant denied\nThe trial court did not err by denying defendant\u2019s motions for a directed verdict and judgment n.o.v. in an action arising from plaintiff\u2019s fall in defendant\u2019s grocery store. Viewed in the light most favorable to plaintiff, defendant created a hazard and unnecessarily exposed customers to danger by leaving two bags of dog food protruding into the aisle next to an ice cream cooler; the store manager reprimanded the stock boy upon discovering the bags in that location; and the stock boy did not deny responsibility.\nAm Jur 2d, Premises Liability \u00a7 551.\nLiability for injury to customer from object projecting into aisle or passageway in store. 26 ALR2d 675.\n2. Evidence \u00a7 36 |NCI3d)\u2014 slip and fall \u2014 statements by store manager \u2014 admissible\nStatements by a grocery store manager after a customer\u2019s fall were admissible in the subsequent negligence action as a hearsay exception for admissions of the agent of a party opponent. N.C.G.S. \u00a7 8C-1, Rule 801(d)(D).\nAm Jur 2d, Evidence \u00a7 605.\n3. Negligence \u00a7 58 (NCI3d)\u2014 slip and fall \u2014 grocery store\u2014 contributory negligence of customer \u2014 directed verdict denied\nThe trial court did not err by denying defendant\u2019s motions for a directed verdict and judgment n.o.v. based on plaintiff\u2019s contributory negligence in an action arising from plaintiff\u2019s fall in defendant\u2019s grocery store where, viewing the evidence in the light most favorable to plaintiff, plaintiff walked along the left wall of defendant\u2019s store and turned to the left, toward the store front and an ice cream cooler; items were placed above the cooler designed to draw the attention of shoppers; dog food bags were at plaintiff\u2019s feet; after taking two steps, plaintiff fell over the dog food bags, which were protruding into the aisle; no other displays were in this five-foot area; and this evidence supports a finding that plaintiff acted prudently in looking ahead of herself and not at her feet.\nAm Jur 2d, Premises Liability \u00a7\u00a7 795, 808.\n4. Negligence \u00a7 57.5 (NCI3d|\u2014 slip and fall in grocery store\u2014 evidence sufficient \u2014 new trial on disregard of instructions and evidence \u2014 denied\nThe trial court did not err by not setting aside a negligence verdict and ordering a new trial on the grounds of manifest disregard by the jury of the proper instructions of the court and insufficiency of the evidence to justify the verdict where there was sufficient evidence to support the verdict.\nAm Jur 2d, Evidence \u00a7\u00a7 1080, 1163.\n5. Damages \u00a7 178 (NCI4th)\u2014 slip and fall \u2014 damages\u2014remittitur denied \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a negligence action arising from plaintiff\u2019s fall in defendant\u2019s grocery store by failing to grant defendant\u2019s motion for remittitur on the grounds that the jury manifestly disregarded the court\u2019s proper jury instructions and that the evidence was insufficient as to damages. Plaintiff\u2019s injuries were substantial, requiring two operations on her hip; her recuperation was slow; and she suffered a partial permanent disability in the use of her right leg.\nAm Jur 2d, Damages \u00a7\u00a7 332-335.\nExcessiveness or adequacy of damages awarded to injured person for injuries to trunk or torso. 12 ALR3d 117; 16 ALR4th 238.\nAPPEAL by defendant from judgment entered 5 March 1990 in MOORE County Superior Court by Judge C. Preston Cornelius. Heard in the Court of Appeals 12 December 1990.\nOn 28 April 1986 plaintiff Adelaide Kremer entered defendant\u2019s grocery store in Aberdeen, North Carolina to purchase a few items. After selecting two tomatoes in the produce department located in the front right corner of the store, plaintiff carried the tomatoes in her hand and circled the perimeter of the store. Plaintiff walked along the left wall toward the front of the store. After deciding against purchasing beer displayed along the left wall, she turned toward the front of the store in the direction of the ice cream coolers five feet away in order to select ice cream. No displays, carts or other items were in this five foot space between the beer and ice cream coolers. After taking two steps, plaintiff fell over two 25 lb. bags of dog food located on the floor, according to her testimony, protruding 10 inches in front of the ice cream cooler. According to testimony at trial, a manager came to plaintiff\u2019s assistance and angrily told a stock boy that this was no way to make a display and to \u201c[g]et those damn bags out of here.\u201d\nPlaintiff suffered a fracture of the right hip requiring surgery and resulting in 20% permanent partial injury to her right leg. At trial the jury found defendant to be negligent and plaintiff not contributorily negligent and awarded plaintiff $90,000.00. Defendant moved for directed verdict and judgment notwithstanding the verdict pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 50 and to set aside the verdict and order a new trial pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59 on the grounds that the jury manifestly disregarded the proper jury instructions and insufficiency of the evidence to support the verdict. The trial court denied defendant\u2019s motions. Defendant appeals.\nBrown, Robbins, May, Pate, Rich, Scarborough & Burke, by P. Wayne Robbins and Carol M. White, for plaintiffs-appellees.\nAnderson, Broadfoot, Johnson & Pittman, by T. Alan Pittman, for defendant-appellant."
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  "file_name": "0291-01",
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