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Wintersteen v. Food Lion Inc.6/14/1999
Wintersteen v. Food Lion, Inc.
Appeal From Orangeburg County
Charles W. Whetstone, Jr., Circuit Court Judge
Heard March 9, 1999
REVERSED
In this classic slip-and-fall case, the jury found in favor of Teresa Wintersteen and awarded her $500,000 in actual damages (to be reduced by her 45% comparative negligence) and $500,000 punitive damages. Food Lion appeals. We reverse.
I.
At approximately 10:30 a.m. on December 24, 1994, Wintersteen slipped and fell on a puddle of clear liquid in a Food Lion grocery store. Wintersteen was walking near a self-service soda fountain equipped with an ice dispenser when the fall occurred. As a result of the fall, Wintersteen suffered a back injury and eventually underwent surgery for herniated disks.
At trial, Wintersteen testified that she did not know what she had fallen in and that she did not know how the liquid had gotten on the floor or how long it had been there. Although two Food Lion employees testified that they had in the past seen ice bounce from the ice machine onto the floor, there was no testimony establishing that any Food Lion employee saw anything on the floor before Wintersteen's fall, nor was there any other evidence establishing how long the liquid had been on the floor.
Bryan Durig, a mechanical engineer, testified on Wintersteen's behalf. Durig testified that, based on his investigation and review of various depositions, interrogatories, and photographs, the liquid upon which Wintersteen slipped "was most likely or most probabl ice from the drink machine that spilled on the floor in this area." According to Durig, ice from self-service dispensers frequently bounces off the grate over the dispenser's drain and onto the floor, where "it will sit on the floor and melt and leave puddles of water in that area in front of the drink machine." Durig described the self-service drink and ice machine as a "hazard," and testified that easiest way to eliminate the hazard was by putting a mat in front of the machine. Durig also recommended more frequent inspections of the area by Food Lion employees.
At the close of Wintersteen's case, Food Lion moved for a directed verdict on the issue of liability. Food Lion contended that Wintersteen presented no evidence establishing that any Food Lion employee had actual or constructive notice of the presence of water or ice on the floor prior to the accident. The trial court denied the motion, concluding that Food Lion, by providing its customers with a self-service soda fountain equipped with an ice dispenser, created a foreseeable risk that ice would fall onto the floor and create a dangerous condition. After the jury returned its verdict, Food Lion moved for judgment notwithstanding the verdict or, alternatively, for a new trial due to excessiveness of the verdict. The trial court denied the motions.
II.
On appeal, Food Lion argues the trial court erred in failing to direct a verdict against Wintersteen on the issue of negligence. We agree.
It is well-established in South Carolina that
"a merchant is not an insurer of the safety of his customer but owes them only the duty of exercising ordinary care to keep the premises in reasonably safe condition. The negligence which must therefore be proved by the plaintiff may be proved under our cases by showing (1) that the material causing the fall was placed on the floor through an agency of the store, or (2) that the merchant had actual or constructive notice of the presence of the material on the floor and failed to remove it." Pennington v. Zayre Corp., 252 S.C. 176, 178, 165 S.E.2d 695, 696
Page 1 2 3 South Carolina Personal Injury Attorneys
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