{ "id": 8621351, "name": "LULA MAYE SKIPPER v. A. B. CHEATHAM and MARY V. CHEATHAM, t/b/a SAUNDERS DRUG STORE", "name_abbreviation": "Skipper v. Cheatham", "decision_date": "1959-03-18", "docket_number": "", "first_page": "706", "last_page": "712", "citations": [ { "type": "official", "cite": "249 N.C. 706" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "183 S.E. 536", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221437 ], "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/209/0165-01" ] }, { "cite": "94 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219461 ], "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0662-01" ] }, { "cite": "81 S.E. 2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596364 ], "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0187-01" ] }, { "cite": "56 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628309 ], "opinion_index": 0, "case_paths": [ "/nc/231/0071-01" ] }, { "cite": "187 S.E. 580", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627054 ], "opinion_index": 0, "case_paths": [ "/nc/210/0464-01" ] }, { "cite": "251 N.W. 265", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "79 S.E. 2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616732 ], "opinion_index": 0, "case_paths": [ "/nc/238/0724-01" ] }, { "cite": "101 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628149 ], "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0640-01" ] }, { "cite": "48 S.E. 642", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658805 ], "opinion_index": 0, "case_paths": [ "/nc/136/0089-01" ] }, { "cite": "41 P. 2d 1093", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "1094" } ], "opinion_index": 0 }, { "cite": "100 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626036 ], "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0195-01" ] }, { "cite": "72 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622402 ], "opinion_index": 0, "case_paths": [ "/nc/236/0083-01" ] }, { "cite": "55 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631991 ], "opinion_index": 0, "case_paths": [ "/nc/230/0694-01" ] }, { "cite": "94 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219553 ], "opinion_index": 0, "case_paths": [ "/nc/244/0666-01" ] }, { "cite": "96 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615052 ], "opinion_index": 0, "case_paths": [ "/nc/245/0580-01" ] }, { "cite": "104 S.E. 2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625450 ], "opinion_index": 0, "case_paths": [ "/nc/248/0631-01" ] } ], "analysis": { "cardinality": 694, "char_count": 14775, "ocr_confidence": 0.434, "pagerank": { "raw": 6.751639192612985e-07, "percentile": 0.9633461255849279 }, "sha256": "e50111f427334513b10df5befc61f69e9ac7a4a0754ddee7ec911cb4a574bcca", "simhash": "1:1b4dc47282349af2", "word_count": 2484 }, "last_updated": "2023-07-14T22:25:15.863799+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LULA MAYE SKIPPER v. A. B. CHEATHAM and MARY V. CHEATHAM, t/b/a SAUNDERS DRUG STORE." ], "opinions": [ { "text": "Bobbitt, J.\nAre the facts alleged, considered in the light most favorable to plaintiff, sufficient to support findings (1) that defendants were negligent in maintiaining the scales in their store entrance, and (2) that isuoh negligence proximately 'Caused plaintiff\u2019s injury?\nDefendants were not insurers of the safety of their customers. Sledge v. Wagoner, 248 N.C. 631, 104 S.E. 2d 195. The doctrine of res ipsa loquitur does not apply. Copeland v. Phthisic, 245 N.C. 580, 96 S.E. 2d 697. No inference of negligence 'arises from the mere fact of an accident or injury. Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821.\nDefendants\u2019 legal duty was ho exercise ordinary care to keep the entrance in a reasonably safe condition for the use of customers entering or leaving their store and to warn them of hidden dangers or unsafe conditions known to defendants or ascertainable by them through reasonable supervision or inspection. Fanelty v. Jewelers, 230 N.C. 694, 55 S.E. 2d 493; Lee v. Green & Co., 236 N.C. 83, 72 S.E. 2d 33; Sledge v. Wagoner, supra.\nAs stated by Rodman, J., in Harris v. Department Stores Co., 247 N.C. 195, 198, 100 S.E. 2d 323: \u201cThe law imposes liability on the owner of property for injuries sustained by an invitee which are caused by dangerous conditions known, or which should have been known, by the property owner but are unknown and not to be anticipated by the invitee.\u201d\n\u201cThe law requires a storekeeper to maintain his storeroom and the entrance thereto in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect customers' from danger while exercising ordinary care for their own safety.\u201d Tyler v. F. W. Woolworth Co. (Wash.), 41 P. 2d 1093, 1094.\nThe cause of action consists of the facts alleged. G.S. 1-122; Lassiter v. R. R., 136 N.C. 89, 48 S.E. 642. \u201cThe complaint must show that the particular facts charged as negligence were the efficient and proximate cause, or one -of such causes, of the injury of which the plaintiff complains.\u201d Stamey v. Membership Corp., 247 N.C. 640, 645, 101 S.E. 2d 814. The facts \u00aballeged, but not .the pleader\u2019s legal conclusions, are deemed admitted where the sufficiency of a complaint is tested by demurrer. Stamey v. Membership Corp., supra.\nAs stated by Johnson, J., in Shives v. Sample, 238 N.C. 724, 79 S.E. 2d 193: . negligence is not a fact in itself, but is the legal result of certain facts. Therefore, the facts which constitute the negligence charged and also the facts which establish such negligence as the proximate cause, or as \u00abone \u00abof \u00abthe proximate causes, of the injury must be \u00aballeged.\u201d\nWhether \u00abthe scales constituted \u201c\u00aba dangerous trap\u201d or \u201ca hazardous and dangerous condition\u201d are legal conclusions. These expressions, incorporated in plaintiff\u2019s allegations, ished no light upon the facts and circumstances existing on the occasion of plaintiff\u2019s injury.\nNo facts descriptive of the scales \u00abor of \u00abthe entrance to defendants\u2019 store axe alleged except the following: The tile entrance sloped toward the \u00absidewalk. In order to make the \u00abstand of the \u00abscales level, the front portio\u00abn thereof, \"\u00abalmost contiguous with the .public sidewalk,\u201d was raised \u00aban inch \u00abox more. The -back portion thereof \u201cwas flush with the entrance walkway.\u201d\nNo facts \u00abare alleged: (1) as to the \u00absize and appearance of the scales; (2) as to the \u00absize \u00aband layout of the \u00abstore \u00abentrance; (3) as to the space available \u00abas passageways in portions of the entrance elsewhere than in clo\u00abse proximity to the \u00abscales; (4) as to whether the scales were in \u00absome manner \u00abeo\u00abnoealed \u00abor were in plain view; (5) as to whether \u00abany person other than plaintiff was using the entrance on the ocoasion o\u00abf plaintiff\u2019s injury.\nIn Smith v. Emporium Mercantile Co. (Minn.), 251 N.W. 265, the plaintiff fell when her foot struck \u00aba \u00abcomer \u00abof a movable platform, used for displaying merchandise, which protruded into an aisle. The court \u00absaid: \u201cWhere \u00aban ordinary \u00abdevice, \u00absuch as this platform, customarily used in \u00abstores for the display o\u00abf goods, is placed in a well-lighted position, is plainly observable, with nothing to conceal its presence \u00aband outlines, and with \u00absufficient piassageways going by it, the shopkeeper should not be held negligent as to one heedlessly colliding therewith. (Citations) To hold \u00abo\u00abtherwise would impose too high \u00aba degree of care upon a shopkeeper and in effect make him an insurer of \u00abthe safety of customers.\u201d\n' Whether defendants, breached their legal duty to plaintiff must be determined on the basis of lite facts and circumstances existing on the occasion of plaintiff\u2019s injury. If, on other occasions, a person\u2019s ability to see .the scales was obstructed or impaired, by crowded 'conditions in the entrance or otherwise, defendants\u2019 liability to a 'customer then injured by contact with the scales would be determined in relation to those 'circumstances 'and conditions.\nPlaintiff, in her brief, contends that the facts alleged are sufficient to raise the inference \u201cthat the scales were momentarily obscured to plaintiff\u2019s vision by the crowd of people on .the sidewalk and going to and fro in the entraocaway to the defendants\u2019 place of business . . .\u201d But we do not think a-ny inference as to the presence or absence of persons in the entrance or on the 'sidewalk on the occasion of plaintiffs injury may be drawn from plaintiff\u2019s meager factual allegations.\nUnder the rules governing defendants\u2019 legal liability to plaintiff, stated above, we reach the conclusion that the facts alleged, nothing else appearing, are insufficient to support a finding that plaintiff\u2019s injury was proximately caused by negligence on the part of defendants. Hence, the demurrer was properly 'Sustained.\nEven so, the court was in error in dismissing plaintiff\u2019s action. The demurrer should have been sustained without prejudice to plaintiff\u2019s right to move for leave to 'amend her complaint. Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580; Stamey v. Membership Corp., supra, 647.\nObviously, if plaintiff\u2019s injury was proximately caused by defendants\u2019 negligence, she has a good cause of action. The defect here is the deficiency in plaintiff\u2019s factual allegations. Davis v. Rhodes, 231 N.C. 71, 56 S.E. 2d 43, and cases cited. Hence, plaintiff may move for leave to amend ,in accordance with G.S. 1-131. When a demurrer is sustained, the action will 'be then dismissed only if the allegations of the complaint affirmatively .disclose a defective cause of action, that i\u00ae, that plaintiff has no cause of action against the defendant. Mills v. Richardson, 240 N.C. 187, 190, 81 S.E. 2d 409; Burrell v. Transfer Co., 244 N.C. 662, 664, 94 S.E. 2d 829.\nDefendants\u2019 contention that the facts alleged establish plaintiff\u2019s contributory negligence as a matter of law is untenable.\n\u201cIn all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon'as a defense, it must be set up in the answer and proved .on the trial.\u201d G.S. 1-139. Where contributory negligence is the ground of objection, the demurrer will be sustained \u201conly where on the face of .the complaint itself the contributory negligence of the plaintiff is patent and unquestionable.\u201d Ramsey v. Furniture Co., 209 N.C. 165, 169, 183 S.E. 536, 'and cases cited. Defendant\u00ae cannot rely upon plaintiff\u2019s failure 4o allege facts sufficient to negative contributory negligence. The facts alleged must affirmatively shew contributory negligence as a matter of law.\nThe allegations that, as plaintiff left the store, she was \u201clooking for her sister,\u201d 'and that, when she \u201c'spied\u201d her sister, waiting for her in a parked oar, she \u201cheaded in that 'direction,\u201d are -insufficient to establish plaintiff\u2019s contributory negligence as a matter of law.\nWhile, as stated above, plaintiff did not allege, expressly or by implication, that her vision or ability to see the scales was obscured or impaired by other persons in the entrance or otherwise, it is equally trae that she did not allege that the existing conditions were such that she saw or by the exercise of due care could have -seen the scales and so could have avoided injury.\nThe portion of tire judgment sustaining the demurrer is affirmed. However, the portion thereof dismissing the action is erroneous and should be stricken therefrom. It is so ordered. As so modified, the judgment is affirmed.\nModified and affirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Aaron Goldberg and Rountree & Clark for 'plaintiff, appellant.", "Poisson, Campbell & Marshall for defendants, appellees." ], "corrections": "", "head_matter": "LULA MAYE SKIPPER v. A. B. CHEATHAM and MARY V. CHEATHAM, t/b/a SAUNDERS DRUG STORE.\n(Filed 18 March, 1959.)\n1. Negligence \u00a7 4f\u2014\nThe proprietors of a store are not insurers of the safety of their customers.\n2. Same\u2014\nThere is no inference of negligence, nor does the doctrine of res ipsa loquitur apply to a fall by a patron on the premises of a store.\n8. 'Same\u2014\nThe duty of proprietors of a store is to exercise ordinary care to keep the premises in a reasonably safe condition for the use of customers and to warn them of hidden dangers or unsafe conditions known to \u25a0the proprietors or ascertainable by them through reasonable supervision \u25a0or inspection.\n4. Negligence \u00a7 16\u2014\nNegligence and proximate cause are legal conclusions from the facts, and therefore the complaint in an action to recover for negligent injury must allege particular facts sufficient to support these conclusions, and \u25a0mere averments that the conditions constituted a \u201cdangerous trap,\u201d or \u25a0were hazardous, are ineffectual as mere legal conclusions.\n5. Pleadings \u00a7 15\u2014\nA demurrer admits the facts alleged, but not the legal conclusions of the pleader.\n6. Negligence \u00a7 4f\u2014 Complaint held insufficient to state cause of action to recover for fall of customer on store premises.\nAllegations to the effect that plaintiff customer tripped and fell when her foot caught under scales maintained by defendants at the entrance of their store, that the entrance sloped and that the front part of the scales had been raised in order to make them level, and that the front \u00a1pant 'of the scales extended almost to the sidewall;:, with further allegation that defendants knew or should have known that a multitude of \u25a0people would be passing from t\u00edme to time and that the condition created a dangerous hazard, are held, in the absence of any allegation .that on the occasion hi question plaintiff\u2019s ability to see the scales was obstructed or impaired, etc., insufficient to state a cause of action for negligence.\n7. Negligence \u00a7 16: Pleadings \u00a7 2\u00a10% \u2014\nWhere a complaint, in an action to recover for negligent injury, is defective in falling to allege sufficient facts to support the legal conclusion of negligence, the cause should not be dismissed upon demurrer \u25a0but plaintiff should be allowed to move for leave to amend, G.S. 1-131, since it is only when the allegations affirmatively disclose a defective cause of action that the action should be dismissed upon demurrer.\n8. Negligence \u00a7 16\u2014\nIn an action to recover for negligent injury, demurrer on the ground of contributory negligence may be allowed only if the facts alleged in the complaint affirmatively show contributory negligence as a matter of law, and it is not required that the pleading allege facts sufficient to negative contributory negligence.\nAppeal by plaintiff from Bone, J., September Civil Term, 1958, of New Hanovee.\nPersonal injury action, heard below on demurrer to complaint.\nPlaintiff\u2019s allegations may be summarized as follows:\nA drugstore, operated by defendants, is located on the east side of Front Street, Wilmington, N. C. Plaintiff, a customer, entered this store on January 18, 1957, about 10:00 a.m. Sbe had. a .prescription filled and paid defendants therefor. She was to take the prescribed medicine to her mother.\nPlaintiff\u2019s sister, by automobile, had brought plaintiff to the store. The sister was to wait for plaintiff and take her to their mother.\nPlaintiff left the store and was walking in a westerly direction toward the sidewalk when suddenly her foot was caught under a set of penny scales and she was hurled to the inclined tile entrance to defendants\u2019 .store and to the sidewalk. As she left the store, she was \u201clooking for her sister.\u201d She \u201cspied her sister waiting for her in the automobile, parked on the east side of Front Street near this Saunders Front Street Drug Store,\u201d and was \u201cheaded in that direction\u201d when \u201cher foot hooked\u201d under said scales.\nDefendants had placed the scales on their property at a point almost touching the sidewalk and derived an income \u201cfrom the weighing charges when the scales were used by the public generally and by the defendants\u2019 customers.\u201d\nOn account of her fall, proximately caused by .the negligence of defendants, plaintiff suffered painful, serious and permanent injuries.\nPlaintiff alleged that \u201cin so placing the weighing scales as to make them a hazard to the general public land this plaintiff in particular as a business invitee,\u201d defendants were negligent in that:\n\u201ca. Because of the slope of the entrance and exit from the sidewalk on the east side of Front Street to the interior of the store of Saunders Drug Store, the stand of the scales was so arranged, in order to be level, that the after or fear portion of the stand was flush with the entrance walkway but the forepart of the stand of the scales was raised an 'inch or more, resulting in >a dangerous trap for the public generally and those using the store on business.\n\u201cb. . . . the scales were placed by the defendants \u00a1at a spot almost contiguous with \u00a1the public sidewalk on the east side of Front Street where the defendants knew or should have known that oftentimes there would be a multitude \u00a1of .people coming \u00a1and going on the sidewalk and coming and going in and out of their drugstore, temporarily obscuring the vision of persons using the store .and customers of the store, as well as others, thereby creating a hazardous and dangerous condition on their premises. (Our italics)\n\u201cc. . ... the dangerous placement of the \u00a9calas . . . had existed for a long time to the knowledge of the defendants who did nothing to correct 'or remedy the dangerous condition thereby created, when they knew \u00a1or should have known that \u00a1such a condition was likely to cause injuries to the general public and in particular to the defendants\u2019 cus-turners and business invitees using the defendants\u2019 Front Street Drug Store.\nDefendants demurred on the ground that the facts alleged by plaintiff (1) are not sufficient to constitute a cause of action against defendants for actionable negligence, and (2) affirmatively disclose contributory negligence as a matter of law.\nThe judgment of Judge Bone sustained the demurrer and dismissed the action.\nPlaintiff excepted and appealed.\nAaron Goldberg and Rountree & Clark for 'plaintiff, appellant.\nPoisson, Campbell & Marshall for defendants, appellees." }, "file_name": "0706-01", "first_page_order": 748, "last_page_order": 754 }