Summary
In Kitchens v. Davis, 96 Ga. App. 30, 34 (99 S.E.2d 266), it was held that a merchant has the right to place display objects in the aisles if they are in full sight and do not endanger those using the aisle; however, in the case sub judice the law of the case rule must prevail.
Summary of this case from Callaway v. Atlantic & Pacific Tea Co.Opinion
36718.
DECIDED JUNE 11, 1957.
Tort; invitee injured in store. Before Judge Waldroup. Douglas City Court. February 22, 1957.
Ewing Williams, Marshall Ewing, George Jordan, for plaintiff in error.
A. B. McKenney, Rufus A. Moore, contra.
1. The petition stated a cause of action for damages arising out of the plaintiff's fall allegedly caused by the defendant's negligence in obstructing an aisle in his grocery store; therefore, the court did not err in overruling the general demurrer to the petition.
2, 3. The court erred in overruling special demurrers 7 and 10 for the reasons given in divisions 2 and 3 of the opinion.
DECIDED JUNE 11, 1957.
Mrs. Martha Lee Davis sued Comer Kitchens for damages allegedly caused by the defendant's negligence. The defendant operated a retail grocery store, and while shopping in the defendant's store, the plaintiff fell and suffered certain injuries. The plaintiff contends that her fall was caused by the defendant's negligence in placing certain articles in an aisle of the store over which the plaintiff stumbled. The defendant operated a "self-service" store. On the day she fell the plaintiff entered the store through a door which led directly into a customer aisle. The plaintiff alleged in part as follows: that the aisle into which she entered was lined on its north side by the north wall shelving of the first or ground floor of the defendant's store room, and was lined or bordered on its south side by a parallel fixture in the nature of a double service "stack-shelves," a bread and cake display fixture, and a check-out stand, or cashier's register and wrapping or bagging counter, and was intersected at or near its east end by a cross-store customers' aisle, and intersected again by a cross-store customers' aisle between the bread and cake display fixture and the check-out stand, and intersected still again by a cross-store customers' aisle across the approximate west end of said store room, and the most direct way from said entrance to the storage spot for wheeled baskets, and also the most direct route from the corner entrance at Bryan Street and Peterson Avenue to the management office of the store; that the defendant's "Kitchens' Store" has, between the north wall shelving, and refrigerating equipment, frozen food fixture, fruit and vegetable bins and tables, vegetable crisper equipment, and dairy products display, which line the south wall of said store room, two units, stacks or rows of "stack shelves," each parallel with the other, and both parallel to or with the north and south walls, substantially equidistant from the north and south walls shelving and equipment, and like distance, each from the other, thus and thereby dividing said store room into three lengthwise-with-store, or east and west parallel customer aisles, and intersecting cross-store aisles, likewise for customers' use and convenience; that the customer aisle into which the petitioner entered from or through the Bryan Street entrance into said store room lies between the north wall shelving and a row or tier of "stack shelves" paralleling said north wall shelving and approximately six feet south therefrom; that the floor covering of the customer aisles referred to is of composition or asbestos tiles, approximately nine inches square, and laid in alternating colors of cherry and grey, but were so faded and soiled from long use and wear and so discolored as to interfere with, or make difficult the observation of any somber colored object such as the handy basket over which plaintiff stumbled and fell, sustaining the injury complained of; that in addition to wheeled customer baskets hereinbefore mentioned, there is used in defendant's store room and place of business green or grey painted circular wire display baskets, approximately thirty inches in height and approximately twenty-four inches in diameter, frequently, or at intervals, filled with "hurry out" merchandise or "shelf goods" of broken or odd lots, of various or numerous varieties and brands, "specialed" for quick sale at reduced prices; that also, the store room and place of business is supplied with, and there is used therein in connection with said business, green painted wire "handy" baskets, approximately twenty-four inches in length, approximately twelve inches in width, and approximately six inches in depth, for miscellaneous use; that in violation of his duty to provide to his customers safe access to his displayed merchandise, and like opportunity to safely serve themselves from said displayed merchandise, and thereby to accomplish the purchase of the desired merchandise items, the defendant, by himself or by his servants, agents and employees, had caused to be located in said customer aisle, and left there without warning notice of overt indication, at least two of the circular display baskets hereinbefore described, the first being approximately fifteen feet westward from the Bryan Street entrance used by petitioner in going into said store room, and on the north side of said aisle; and the next also on the north side of said aisle and approximately five feet westward from the first; thus there was effected a partial closure of said aisle for approximately one-third of its width for the distance of the respective diameters of said display baskets, and such arrangement of circular display basket amounted to partial closure of said customer aisle, being traversed by petitioner at the time of the injury, and amounted to a total obscuration by shadow of the floor in said aisle in the vicinity thereof, and interference with observation of smaller objects in the aisle, and even though petitioner was in the exercise of ordinary care, she did not see the obstructions, and was not advised that there were obstructions, and was not cautioned of the danger incident to traversing said aisle, even though all of these were in full view of defendant from his desk in the office space hereinbefore referred to; that in further violation of his duty to his customers, as pointed out in the paragraph next immediately preceding, the defendant negligently and carelessly placed, or permitted to be placed, and left on the floor of said store room, and between said display baskets, and extending out into said customer aisle, which she was then and there using as aforesaid, as much as four feet southward from the north wall shelving, one or more of the "handy baskets" hereinbefore referred to in paragraph seventeen; that in further violation of his duty to his customers, as hereinbefore pointed out, and particularly of his duty to this petitioner, the defendant negligently and carelessly placed, or permitted to be placed and left on the floor of said store room and place of business, and in proximity to said display baskets and to said "handy baskets" referred to in the next paragraph preceding, and elsewhere in this petition, certain boxes, cartons, packages and/or containers holding merchandise being, or about to be, placed for display and notice, on the line, row or tier of "stack-shelves" then forming the south side of the said customer aisle, closed the foot passage in the said customer aisle, which said boxes, cartons, packages, and containers, holding merchandise, were of various sizes and weights, from 6'x10'x4' to 8'x18'x12' and contained merchandise for display as aforesaid but the boxes and cartons had not been opened and the contents could not be observed by the petitioner, but the facts are well known to the defendant; that the commingling of colors of floor, "handy baskets," "display baskets," vari-colored merchandise and packages of merchandise, combined with the poor lighting used for the entire store, and the shadows created thereby, and the failure to mark or signal the customer aisle obstructions hereinbefore referred to, by some noticeable device, directly and proximately caused petitioner, even though exercising due care for her own safety, to walk into and stumble over the said "handy basket" and the boxes of merchandise placed and left on the floor of said aisle adjacent to, in the vicinity of, and against said "handy basket" and, despite her efforts to prevent the same, to fall onto the floor of said aisle for customers, and into and among the merchandise packages being allowed to remain threat and thereon, and against the row, line or tier of "stack shelves" which resulted in enumerated injuries; that because of the defendant's negligence and carelessness, and failure to exercise ordinary care in keeping said aisle, being traversed by petitioner, free from obstructions, and to so light and illuminate his store room and the aisle therein, as that obstructions of aisles could not be seen, and in permitting his servants, agents and employees to negligently and carelessly create hazards to the safety of his customers by placing and leaving baskets and packages of merchandise on the floor and in the aisle referred to, petitioner was caused to fall and sustain the injury heretofore mentioned, and described, and thereby to be damaged in the full sum of fifty thousand ($50,000) dollars; that petitioner did not see the basket, over which she stumbled or know of its existence in the said aisle which was provided as a walk-way for customers, and could not have seen the same, or known of its existence without special inspection to determine if the aisle was clear.
The defendant demurred specially and generally to the petition as amended. To the overruling of these demurrers the defendant excepts.
1. The plaintiff alleged that the customer aisle she was using and which was formed by wall shelves on one side and stack shelves and display counters on the other was six feet in width but that the placement of the large and small display baskets and the various sized boxes and containers in the aisle closed the aisle to foot passage. A merchant has the right to place display baskets in the aisles of his store and he may place cartons and containers in the aisles while he places articles on the display shelves, and a customer may expect to find such objects in the aisles; nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone. Tinley v. F. W. Woolworth Co., 70 Ga. App. 390 ( 28 S.E.2d 322). In the instant case we do not believe the plaintiff was required to anticipate that the defendant might place articles in the aisles of his store so as to nearly or completely close the aisle to foot traffic under the conditions alleged. It is contended that the plaintiff was the author of her own misfortune in negligently trying to traverse an aisle which was closed to foot passage. This would depend on whether by the exercise of ordinary care the plaintiff could have discovered that the aisle was blocked. One might ordinarily presume that a person could discover that an aisle was completely blocked, but that question would depend upon the nature of the blockage and the attendant circumstances. Here the plaintiff alleged that the aisle was partially blocked by the large baskets which cast shadows and that the remaining portion of the aisle was blocked by the small baskets and small cartons, and that because of the colors of the floor, baskets and merchandise, the lighting of the store and the shadows cast, she was unable in the exercise of ordinary care to see the articles she tripped over and unable to discover that the aisle was completely blocked. These facts present a jury question and state a cause of action against a general demurrer. What ordinarily might be discovered under good lighting conditions might not be detectable under poor lighting conditions combined with surrounding physical conditions. See Atlanta Enterprises v. Douglass, 93 Ga. App. 237 ( 91 S.E.2d 296); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 ( 179 S.E. 415); Hanson v. Atlanta Lodge No. 78, B.P.O. Elks, 88 Ga. App. 116 ( 76 S.E.2d 77); Pilgreen v. Hanson, 89 Ga. App. 703 ( 81 S.E.2d 18).
2. Special demurrer No. 7 attacks paragraph 12 of the amended petition on the ground that the allegation was meaningless, surplusage and failed to illustrate any issue in the case. Paragraph 12 alleged that the merchandise on the store shelves was so displayed as to engage the attention and interest of the customers. The plaintiff does not allege that at the time she fell her attention was partially diverted to such attractively displayed merchandise and does not allege that such display contributed to her fall. Since the plaintiff does not tie in the allegations of paragraph 12 with her falling, the defendant's special demurrer was good and the court erred in overruling it.
3. That portion of special demurrer 10 which attacks the allegations of paragraph 20 of the petition that "one or more" of the "handy baskets" were placed between the display baskets and extended out into the customer aisle "as much as four feet" is meritorious. The defendant is entitled to know the approximate number of "handy baskets" that were placed between the display baskets and how far such "handy baskets" extended out into the customer aisle or is entitled to more detailed allegations concerning the number of baskets and how they were placed so as to partially close the customer aisle.
The court erred in overruling special demurrers Nos. 7 and 10. The court did not err in overruling the general demurrer and the other special demurrers.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.