Diffendal v. Kash and Karry Service Corp.

ROSALYN B. BELL, Judge. Appellants, Anna Diffendal and Joseph Diffendal, filed a complaint against appellee, Kash and Karry Service Corporation, in the Circuit Court for Baltimore City. In Count I, Anna Diffendal sought damages arising from a personal injury which she sustained while shopping in Kash and Karry’s supermarket. In Count II, the Diffendals sought damages arising from their loss of consortium resulting from the injuries suffered by Anna Diffendal as set out in Count I. Kash and Karry denied liability and alleged that the Diffendals’ cause of action was barred by the doctrine of contributory negligence.

Kash and Karry sought summary judgment on the ground that Anna Diffendal was contributorily negligent as a matter of law. The court granted the motion and appellants subsequently appealed. The issues on appeal are: —Did the trial court err in finding that Mrs. Diffendal was contributorily negligent as a matter of law? —Is the recorded statement used to support Kash and Karry’s motion for summary judgment an admission under Rule 2-501(e)? This appeal arises out of a personal injury sustained by Anna Diffendal while she was shopping in the Kash and Karry supermarket on June 23, 1983 in Glen Burnie, Maryland.

Upon arriving at the store, Mrs. Diffendal took a shopping cart and proceeded to the frozen food aisle, where she intended to select two specific items. She stopped pushing her cart, walked along the frozen food box looking for the items, picked out one, turned to place the product in her shopping cart, but, instead, fell over an “L-bed” cart which was in the aisle. That fall resulted in the injuries of which she complains in this case. Appellee filed a motion for summary judgment, claiming that Mrs. Diffendal was contributorily negligent.

A hear ¹⁷³ ing was held and the court granted the motion, finding that Mrs. Diffendal was contributorily negligent as a matter of law. Appellants appeal from that ruling. CONTRIBUTORY NEGLIGENCE Appellee argues that, based on the following statement made by Mrs. Diffendal at her deposition, the court was correct in granting its motion for summary judgment: Q: “Before you began to walk, did you look to see if your way was clear?” Mrs. Diffendal: “No, sir. I was looking in the frozen food for the waffles.” Appellee claims that, because Mrs. Diffendal was not paying attention to where she was walking, she was not exercising ordinary care for her own safety.

Thus, appellee concludes that Mrs. Diffendal was contributorily negligent as a matter of law. We disagree. Contributory negligence is defined as “conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiffs harm.” Craig v. Greenbelt Consumer Services, Inc., 244 Md. 95, 97 , 222 A.2d 836 (1966). Ordinarily, contributory negligence is a question for the jury.

Kasten Const. Co. v. Evans, 260 Md. 536, 541 , 273 A.2d 90 (1971). “The question of contributory negligence must be considered in the light of all the inferences favorable to the plaintiffs case that may be fairly deduced from the evidence. Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom, the question should be submitted to the jury. In order that a case may be withdrawn from the jury on the ground of contributory negligence, the evidence must show some prominent and decisive act which directly contributed to the accident and which ¹⁷⁴ was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Menish v. Polinger Co., 277 Md. 553, 563, 356 A.2d 233 (1976) (citations omitted) (emphasis in original).

We hold that Mrs. Diffendal’s failure to look down the aisle before proceeding to her cart was not such a “prominent and decisive act” from which reasonable minds could not differ that she was contributorily negligent. In Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552 , 192 A. 419 (1937), appellant fell over a box of canned goods sitting in the aisle of a grocery store. In holding that appellant was not contributorily negligent as a matter of law, the Court said: “There is a substantial difference between the kind and degree of vigilance which a traveler on a street must exercise to avoid danger and that which is required of a customer in a store. The storekeeper expects and intends that his customers shall look not at the floor but at the goods which he displays to attract their attention and which he hopes they will buy.

He at least ought not to complain, if they look at the goods displayed instead of at the floor to discover possible pitfalls, obstructions, or other dangers, or if their purchases so encumber them as to prevent them from seeing dangers which might otherwise be apparent. Patrons are entitled therefore to rely to some extent at least upon the presumption that the proprietor will see that the passage says provided for their use are unobstructed and reasonably safe.” 1 Chalmers, 172 Md. at 559 , 192 A. 419 . A number of other states have also held that, where a customer in a store was injured as á result of falling over an obstacle in an aisle, the question of the customer’s negligence is one of fact and not law. In Borsa v. Great Atlantic and Pacific Tea Co., 207 Pa.Super. 63 , 215 A.2d 289 (1965), the plaintiff fell while in the defendant’s store. ¹⁷⁵ Plaintiff’s evidence tended to show that she fell over a small bench protruding into an aisle.

The jury returned a plaintiff’s verdict, and defendant appealed from the trial court’s denial of its motion for judgment notwithstanding the verdict. The Borsa Court stated: “The standard of care applicable to a customer in a store is not as high as that imposed upon a pedestrian on a sidewalk. In determining whether a business visitor’s failure to observe a dangerous condition on the premises constitutes negligent inattention, the fact that the possessor of the premises has eyecatching objects on display which divert the visitor’s attention is an important factor for consideration. In view of the fact that there were displays all around the area in which [the plaintiff] fell ... we cannot say as a matter of law that [she] failed to exercise due care for her own protection.

Whether or not she was using the caution expected of a reasonably prudent person under the circumstances was a question of fact for the jury and not of law for the court.” Borsa, 215 A.2d at 292-93 . Similarly, in Norwood v. Sherwin-Williams Co., 303 N.C. 462 , 279 S.E.2d 559 (1981), the plaintiff was injured when she tripped over a raised pallet which extended into an aisle in the defendant’s store. The jury found the defendant negligent and the plaintiff not contributorily negligent, but the trial court entered a judgment notwithstanding the verdict for the defendant. The plaintiff appealed.

In reaching its conclusion that entry of judgment notwithstanding the verdict was improper, the Norwood Court found: “[plaintiff’s evidence is sufficient to permit the inference that the corner of the pallet would not have been obvious to one exercising ordinary care. Additionally, there is evidence that the display and the placing of the impulse items were intended to attract and keep the customer’s attention at eye level. When a merchant entices a customer’s eyes away from a hazardous condition, we do not think he should be heard to complain when ¹⁷⁶ his efforts succeed. Likewise, when the designs of the merchant have the desired effect upon a customer, we cannot conclude as a matter of law that the customer was contributorily negligent in not looking down at the floor." Norwood, 279 S.E.2d at 563-64 (emphasis added); see also Gourges v. Schwegmann Brothers Giant Super Markets, Inc., 339 So.2d 929 (La.App.1976); Schuller v. Hy-Vee Food Stores, Inc., 328 N.W.2d 328 (Iowa 1982). “The standard of care to be used in measuring contributory negligence is the conduct of an ordinarily prudent person under the same or similar circumstances, and not that of a very cautious person, and even if the doing of what was done turns out to have been an error of judgment, this of itself does not make the act negligence if an ordinarily prudent person would have made what proves to have been the same error.” Sanders v. Williams, 209 Md. 149, 153 , 120 A.2d 397 (1956).

More than one inference is permitted under the circumstances of this case. It could be inferred that, under these circumstances, Mrs. Diffendal was not negligent in failing to have noticed the cart over which she fell, or in failing to have avoided the injury she sustained. In addition, Mrs. Diffendal stated in an affidavit that she did not see the L-cart before she fell. Thus, it may be inferred that the cart was placed in the aisle after she began looking for the waffles.

A reasonable inference is that an ordinarily prudent person, while shopping in a supermarket, with her attention drawn to the selection of merchandise displayed in an open food freezer, could make the same error of judgment, and trip over a cart placed in an aisle near the displays of merchandise. Appellee relies on three cases to support its claim that Mrs. Diffendal was contributorily negligent as a matter of law. Each of them is distinguishable from the case sub judice. In Lloyd v. Bowles, 260 Md. 568 , 273 A.2d 193 (1971), appellant fell while leaving appellee’s beauty parlor.

At the time of the incident, the entrance to the shop was ¹⁷⁷ being remodeled. The Court held that appellee was not negligent in its maintenance of the entrance way. Thus, the Court expressly declined to decide whether appellant was contributorily negligent. Lloyd, 260 Md. at 575 , 273 A.2d 193 .

In Southern Maryland Electric Cooperative, Inc. v. Blanchard, 239 Md. 481 , 212 A.2d 301 (1965), appellee was injured when a television antenna he was holding came in contact with an uninsulated electric wire belonging to the cooperative. The cooperative appealed a jury verdict in favor of appellee. The Court of Appeals reversed, holding that appellee was contributorily negligent. The present case is distinguishable in two ways.

First of all, in Blanchard , the Court held that, because appellee was familiar with electricity, and the location of wires in the area and because appellee had been working near the wires for almost an hour before the accident, he was charged with knowledge of the uninsulated wire. Blanchard, 239 Md. at 490-91 , 212 A.2d 301 . In the case sub judice, Mrs. Diffendal stated that she had never seen an unattended L-cart in the store before. She also claimed that she had never seen