Skinner v. Piggly Wiggly of Lagrange, Inc.

CLARK, Judge. The sole issue in this case is whether there was sufficient evidence from which a jury could infer actionable negligence on the part of either of the defendants. We hold that the record in this case would not support a finding of actionable negligence. The record is devoid of any facts that show specific acts of negligence on the part of defendants, that defendants had actual or implied knowledge of an existing defect or dangerous situation, that the defendant failed to routinely inspect the soft drink display, that the “same or similar” type of injury had occurred with similar displays elsewhere, that the display was inherently dangerous, that there was anything unusual about the way the bottles were stacked at or around the time of the accident, and that there was no opportunity for interference or intervening negligence by other customers within a short period of time prior to the accident. In sum, we find no breach of the store owner’s or distributor’s duty to stack bottles in a reasonable manner so as to avoid injury to the store’s customers. We note that while the store owes the customer as an invitee a duty of reasonable care in building displays, “[t]he proprietor of a business establishment is not required to take extraordinary precautions for the safety of his invitees . . . .” Gaskill v. Great A & P Tea Co., 6 N.C. App. 690, 694, 171 S.E. 2d 95 (1969). The store owner “is not an insurer of the safety of a customer while on the premises.” Watkins v. Taylor Furnishing Company, 224 N.C. 674, 676, 31 S.E. 2d 917 (1944). See also, Bodenheimer v. National Food Stores, Inc., 255 N.C. 743, 122 S.E. 2d 715 (1961). Even if specific acts constituting a breach of due care on the part of the store owner or distributor were shown, there is still insufficient evidence from which a jury could conclude that such acts were the proximate cause of plaintiff’s injury. There is no evidence, for example, which would indicate that had a guard rail or vertical supports been installed that they would have prevented the occurrence in this case. As the plaintiff has failed to show that other customers did not have access to the soft drink display, and therefore that the store owner had exclusive control over the positioning of the bot304 ties on the display, we cannot apply the doctrine of res ipsa loquitur. Phillips v. Bottling Co., 256 N.C. 728, 729, 125 S.E. 2d 30 (1962); Jackson v. Neill McKay Gin Co., 255 N.C. 194, 120 S.E. 2d 540 (1961); Watkins v. Taylor Furnishing Co., supra; Peterson v. Winn-Dixie, 14 N.C. App. 29, 187 S.E. 2d 487 (1972); Farmer v. Drug Corp., 7 N.C. App. 538, 173 S.E. 2d 64 (1970); Gaskill v. Great A & P Tea Co., supra; Connor v. Thalhimers Greensboro, Inc., 1 N.C. App. 29, 159 S.E. 2d 273 (1968). The holding in this case should not be construed to mean that those who display soft drinks can never be found to be negligent in the manner of their display or that the doctrine of res ipsa lo-quitur can never apply in these cases. See, for example, the extended compilation of cases found in Annot., 38 A.L.R. 3d 363 (1971). We are also aware that there is a fine line of distinction, if any, between the scope of the storekeeper’s duty and the standard of proximate causation in these cases. Id. The fact situation in the instant case, however, does not require us to expound upon this question. Affirmed. Judges Hedrick and Erwin concur.