{ "id": 8526178, "name": "LINDA C. RONE, Plaintiff v. BYRD FOOD STORES, INC., d/b/a BYRD'S, Defendant", "name_abbreviation": "Rone v. Byrd Food Stores, Inc.", "decision_date": "1993-04-20", "docket_number": "No. 915SC1260", "first_page": "666", "last_page": "671", "citations": [ { "type": "official", "cite": "109 N.C. App. 666" } ], "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": "26 ALR2d 675", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "85 ALR3d 1000", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "279 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "563" } ], "opinion_index": 0 }, { "cite": "303 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574016 ], "year": 1981, "pin_cites": [ { "page": "468-69" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0462-01" ] }, { "cite": "368 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523753 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0250-01" ] }, { "cite": "130 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "283" } ], "opinion_index": 0 }, { "cite": "259 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559701 ], "year": 1963, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0199-01" ] }, { "cite": "107 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "249 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621351 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/249/0706-01" ] }, { "cite": "175 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549291 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0234-01" ] }, { "cite": "295 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525824 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0094-01" ] }, { "cite": "247 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "290" }, { "page": "291" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551832 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "53" }, { "page": "55" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0050-01" ] }, { "cite": "335 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691041, 4688166, 4688465, 4696987, 4692317 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0666-03", "/nc/314/0666-01", "/nc/314/0666-02", "/nc/314/0666-05", "/nc/314/0666-04" ] }, { "cite": "330 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525373 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0185-01" ] }, { "cite": "279 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170370 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0474-01" ] }, { "cite": "278 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170346 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0428-01" ] } ], "analysis": { "cardinality": 591, "char_count": 10969, "ocr_confidence": 0.74, "pagerank": { "raw": 1.950724572982255e-07, "percentile": 0.7366819455497212 }, "sha256": "f10a8279baec40329d08ebabc260eefd13c1119472f8aad11f261171a30ebd9e", "simhash": "1:4b9a9c341c2f0df0", "word_count": 1859 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge ORR concur." ], "parties": [ "LINDA C. RONE, Plaintiff v. BYRD FOOD STORES, INC., d/b/a BYRD\u2019S, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nPlaintiff\u2019s evidence tended to show the following: On 10 September 1989, immediately following church on a Sunday evening, Mrs. Rone came into Byrd\u2019s grocery store right before closing time to purchase a small number of grocery items, and was still in the store when the store was closed and the front doors were locked. At the time Mrs. Rone was in the store, there were just three employees there: Mr. McManus, the manager; Mr. Michael Riddle, the bagger; and Ms. Kathy Gilliam, the check-out lady.\nThe store closed at 8:00 p.m. sharp so that the floors could immediately be mopped. The tile floors were sealed with two coats of wax. The mopping was not done prior to the store closing, but was begun as soon as it closed. Byrd\u2019s policy was not to start mopping until the store closed because, in Mr. McManus\u2019 own words, \u201csomeone might slip and fall.\u201d Mr. Riddle was mopping the area in front of the aisle behind the registers when the store closed that evening.\nAt the check-out counter, Mrs. Rone realized that she had forgotten to get slaw and started to go to the produce area at a \u201cswift walk.\u201d When Mrs. Rone fell, Mr. Riddle was in the middle of the aisle mopping right behind the check-out counter and the \u201cwet floor\u201d sign was further down the aisle by the time-clock. He heard Ms. Gilliam holler, \u201cma\u2019am, the floor...\u201d and at about the same time she fell.\nPlaintiff contends that the trial court erred in granting defendant\u2019s summary judgment motion because there is a genuine issue of material fact and that defendant is not entitled to judgment as a matter of law. We agree.\nThe purpose of the summary judgment rule is to eliminate a trial when, based on the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are at issue. Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897 (1981). Summary judgment is a drastic measure, and it should be used with caution, especially in a negligence case in which a jury ordinarily applies the reasonable person standard to the facts of each case. Holcomb v. Insurance Co., 52 N.C. App. 474, 279 S.E.2d 50 (1981); Laughter v. Southern Pump & Tank Co., 75 N.C. App. 185, 330 S.E.2d 51, cert. denied, 314 N.C. 666, 335 S.E.2d 495 (1985).\n\u201cAll evidence before the court must be construed in the light most favorable to the non-moving party. The slightest doubt as to the facts entitles the non-moving party to a trial.\u201d Ballenger v. Crowell, 38 N.C. App. 50, 53, 247 S.E.2d 287, 290 (1978). A prima facie case of negligence is alleged when a plaintiff establishes that: defendant owed plaintiff a duty of care; defendant\u2019s conduct breached that duty; the breach was the actual and proximate cause of plaintiff\u2019s injury; and damages resulted from the injury. Southerland v. Kapp, 59 N.C. App. 94, 295 S.E.2d 602 (1982).\nThe law is well-settled in North Carolina that a store owner is not an insurer of its premises. Hull v. Winn-Dixie Greenville, Inc., 9 N.C. App. 234, 175 S.E.2d 607 (1970). The doctrine of res ipsa loquitur does not apply in such cases. Skipper v. Cheatham, 249 N.C. 706, 107 S.E.2d 625 (1959). Defendant proprietor owes to its invitees the duty to exercise \u201cordinary care to keep [its store] in a reasonably safe condition those portions of its premises which it may expect will be used by its customers during business hours, and to give warning of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision.\u201d Raper v. McCrory-McLellan Corp., 259 N.C. 199, 203, 130 S.E.2d 281, 283 (1963).\nBased on the aforementioned principles, we address plaintiff\u2019s contention that there is a genuine issue of fact as to defendant\u2019s negligence. The evidence construed in the light most favorable to plaintiff tended to show that on 10 September 1989, Mrs. Rone entered Byrd\u2019s grocery store to purchase some items; that Mrs. Rone was still in the store when the store closed and the front door locked; that Mrs. Rone was at the checkout counter when she remembered an item that she needed; that she left the checkout counter at a swift walk; that she did not see any warnings signs, hear any verbal warnings nor note any water on the floor; and that Mrs. Rone walked into the wet area and fell.\nDefendant\u2019s evidence was conflicting. Defendant had three witnesses testify at a deposition proceeding and their version of the events that transpired varied. They could not agree on where the floor was wet, how many warning signs had been placed on the floor, where the warning signs had been placed, nor where plaintiff fell in the store.\nMr. McManus testified that the floor was wet almost up to the check-out line. Ms. Gilliam testified that it was dry up to the office area. While Mr. Riddle testified the floor was half wet and half dry in the area of the office.\nMr. McManus further testified that he only saw one warning sign. However, Mr. Riddle testified that he had'placed two warnings signs on each end of the wet area. Ms.- Gilliam testified that she saw only one warning sign, but she also stated that \u201cI didn\u2019t look around the room to find the other floor signs.\u201d\nIn addition, Mr. McManus indicated that a warning sign had been placed near the back of the office area. Ms. Gilliam indicated that a warning sign had been placed directly in front of the office area. While, Mr. Riddle indicated that one warning sign had been placed in the middle of the office area and one warning sign had been placed at the end of the aisle.\nLastly, Mr. McManus indicated, by marking on the deposition exhibit, that Mrs. Rone fell right before she entered the office area. Ms. Gilliam testified that Mrs. Rone fell at a point halfway between the cash register and the office wall, and Mr. Riddle testified that Mrs. Rone fell in the middle of the office area.\nWhere there is a need to find facts, then summary judgment is not an appropriate device to employ, provided those facts are material. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199 (1988). Based on the above facts in the record and the above law, there is at least a reasonable inference that defendant was negligent in creating a wet slippery condition and in failing to adequately warn plaintiff of the presence of the slippery floor.\nPlaintiff further contends that the trial court erred in granting summary judgment on the issue of contributory negligence when the record supports an inference of no contributory negligence. We agree.\n\u201cLike negligence, contributory negligence is rarely appropriate for summary judgment.\u201d Ballenger, 38 N.C. App. at 55, 247 S.E.2d at 291. The North Carolina Supreme Court has set out in detail the standard of review for adjudication of retail store slip and fall claims on the grounds of the alleged contributory negligence of the plaintiff. The Supreme Court stated the basic rule as follows:\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. . . . When a defendant moves for a directed verdict on the grounds that the evidence establishes plaintiffs contributory negligence as a matter of law the question before the trial court is whether the evidence taken in the light most favorable to plaintiff establishes her negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff\u2019s evidence must be resolved by the jury rather than the trial judge.\nNorwood v. Sherwin-Williams Co., 303 N.C. 462, 468-69, 279 S.E.2d 559, 563 (1981).\nBased on the above principle of law, we find the record does support an inference that plaintiff was not contributorily negligent as a matter of law. As stated earlier, plaintiffs evidence shows that she was not aware of any warning signs indicating the floor was wet nor did she notice any water on the floor when she walked swiftly to retrieve her last grocery item. The conflicting testimony of defendant\u2019s own witnesses supports plaintiff\u2019s argument that there is at least a reasonable inference that plaintiff was not con-tributorily negligent as a matter of law. \u201cWhere diverse inferences can be drawn the question of contributory negligence is for the trier of fact.\u201d Ballenger, 38 N.C. App. at 54, 247 S.E.2d at 291.\nAccordingly, the decision of the trial court is reversed.\nChief Judge ARNOLD and Judge ORR concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Gabriel Berry & Weston, by M. Douglas Berry, for plaintiff-appellant.", "Elrod & Lawing, P.A., by Pamela A. Robertson, for defendant-appellee." ], "corrections": "", "head_matter": "LINDA C. RONE, Plaintiff v. BYRD FOOD STORES, INC., d/b/a BYRD\u2019S, Defendant\nNo. 915SC1260\n(Filed 20 April 1993)\nNegligence \u00a7\u00a7 106, 109 (NCI4th)\u2014 slip and fall in grocery store \u2014 employee mopping floor immediately after closing \u2014 customer still in store \u2014 summary judgment inappropriate\nIn a negligence action in which plaintiff alleged that she suffered injuries when she fell on a wet floor in defendant\u2019s grocery store, the trial court erred in granting defendant\u2019s summary judgment motion where there was a genuine issue of material fact as to defendant\u2019s negligence and where the record supported an inference of no contributory negligence based on evidence tending to show that plaintiff entered defendant\u2019s grocery store to purchase some items; plaintiff was still in the store when the store closed and the front door was locked; plaintiff was at the check-out counter when she remembered an item that she needed; she left the checkout counter at a swift walk; she did not see any warning signs, hear any verbal warnings, or note any water on the floor; plaintiff walked into the wet area and fell; and defendant\u2019s witnesses could not agree on where the floor was wet, how many warning signs had been placed on the floor, and where plaintiff fell in the store.\nAm Jur 2d, Premises Liability \u00a7\u00a7 29, 786, 790.\nStore or business premises slip-and-fall: Modern status or rules requiring showing notice of proprietor of transitory interior condition allegedly causing plaintiff\u2019s fall. 85 ALR3d 1000.\nLiability for injury to customer from object projecting into aisle or passageway in store. 26 ALR2d 675.\nAppeal by plaintiff from order entered on 22 August 1991 by Judge J. B. Allen, Jr. in Alamance County Superior Court. Heard in the Court of Appeals on 2 December 1992.\nThis is a negligence action instituted by the filing of plaintiff\u2019s complaint on 15 March 1990 in which she alleges that she suffered injuries when she fell on a wet floor in defendant\u2019s grocery store on 10 September 1989. Defendant timely served an answer on 17 March 1990.\nOn 5 July 1991, defendant filed a motion for summary judgment. This matter came on for hearing before Judge J. B. Allen, Jr. in Alamance County Superior Court on 19 August 1991. In an order filed 22 August 1991, Judge Allen allowed defendant\u2019s motion for summary judgment. Plaintiff gave timely notice of appeal.\nGabriel Berry & Weston, by M. Douglas Berry, for plaintiff-appellant.\nElrod & Lawing, P.A., by Pamela A. Robertson, for defendant-appellee." }, "file_name": "0666-01", "first_page_order": 694, "last_page_order": 699 }