Filed 2 September 1980
Negligence 57.5 — pallet protruding into store aisle — injury to customer — contributory negligence In an action to recover for personal injuries received by plaintiff when she tripped over a pallet which protruded into the aisle of defendant's store, the evidence showed that plaintiff was contributorily negligent as a matter of law where it showed that the pallet supported a tall display; nothing obstructed plaintiff's view of the corner of the pallet which was in the aisle; plaintiff did not look down; and plaintiff should have seen the pallet in the exercise of ordinary care.
APPEAL by plaintiff from Herring, Judge. Judgment entered 2 April 1979 in Superior Court, DURHAM County. Heard in the Court of Appeals 20 March 1980.
Watson, King and Hofler, by R. Hayes Hofler III and Malvern F. King, Jr., for plaintiff appellant.
Haywood, Denny and Miller, by John D. Haywood and Charles H. Hobgood, for defendant appellee.
Judge WELLS dissenting.
This action involves a claim by plaintiff for personal injury incurred on 9 November 1974 when she tripped over a pallet which protruded into the aisle of a store operated by the defendant. The pallet was three or four inches off the floor and supported a tall display in the center. It was placed at the end of a counter and the edge of the pallet extended three or four inches into the aisle. The plaintiff was in the defendant's store at approximately 11:45 a.m. to purchase art supplies. After making her selection of art supplies, she started walking down the aisle toward the cash register. Nothing obstructed her view of the corner of the pallet that was in the aisle. The manager of the store testified: "The lighting fixtures in the retail part of the store are eight feet tubular lighting running parallel with the store. I believe there are four different sections of lighting and they run the length of the store, four tubes per section." The plaintiff testified: "The floor was poorly lit or it looked shadowed. The counter on the right shadowed the aisle. The display also shadowed the aisle." The plaintiff also testified: "I walked down this aisle . . . I did see this display standing out in the corner of my eye. I could tell there was something tall there, but I wasn't looking down at the floor because I thought that display went all the way down to the floor." The plaintiff tripped on the pallet, suffering an injury.
At the end of all the evidence the defendant made a motion for a directed verdict which was denied. The jury returned a verdict for the plaintiff. The court then entered a judgment notwithstanding the verdict for the defendant. Plaintiff appealed.
If the defendant was entitled to a directed verdict at the end of all the evidence, the judgment notwithstanding the verdict was properly entered. See Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). We hold that all the evidence shows the plaintiff was contributorily negligent and we affirm the judgment of the superior court.
A plaintiff who trips or falls over an object on the premises of another is barred from recovery by his or her contributory negligence if the object is in a position at which the plaintiff would have seen it had he or she looked. See Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E.2d 1 (1964); Jones v. Pinehurst, Inc., 261 N.C. 575, 135 S.E.2d 580 (1964); Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338 (1963); Little v. Oil Corp., 249 N.C. 773, 107 S.E.2d 729 (1959); Porter v. Niven, 221 N.C. 220, 19 S.E.2d 864 (1942); Farmer v. Drug Corp., 7 N.C. App. 538, 173 S.E.2d 64 (1970). The plaintiff, relying on Hunt v. Meyers Co., 201 N.C. 636, 161 S.E. 74 (1931) contends that there was evidence in this case that the area in which the pallet was placed was dark or shadowed such that she could not see the pallet. The difficulty with this argument is that the evidence does not show the shadows prevented the plaintiff from seeing the pallet. She testified she did not look down. She did not testify that she looked and the shadows prevented her from seeing the pallet. Plaintiff also contends that the lady at the cash register, the tall display on the pallet, the merchandise along the aisle, and the impulse items diverted her attention from the pallet. Our Supreme Court has held in Walker v. Randolph County, 251 N.C. 805, 112 S.E.2d 551 (1960) that a person is excused from seeing what he should ordinarily have seen by a condition which might divert the attention of a prudent person from looking. In that case Randolph County maintained a bulletin board which extended 19 inches over a staircase. The plaintiff was looking up for a notice on the board and fell down the steps. We do not believe we should extend this doctrine of diversion to say that a person may reasonably be diverted from seeing what he or she should have seen by the normal activities in a retail store.
We hold that the pallet was in plain view where the plaintiff should have seen it by the exercise of due care.
Judge HEDRICK concurs.
Judge WELLS dissents.