dissenting.
Based on the logic of France v. Winn-Dixie Supermarket, 70 N.C. App. 492, 320 S.E.2d 25 (1984), disc. review denied, 313 N.C. 329, 327 S.E.2d 889 (1985), I must respectfully dissent from the majority opinion.
Plaintiff’s argument on appeal is that the trial court erred in granting summary judgment for defendant because there are genuine issues of material fact and defendant is not entitled to judgment as a matter of law. Plaintiff argues that whether the dangerous condition existed for such a length of time that the defendant knew, or by the exercise of reasonable care should have known, of its existence is a genuine issue of material fact which makes summary judgment improper.
Plaintiff cites and relies on Warren v. Rosso and Mastracco, Inc., 78 N.C. App 163, 336 S.E.2d 699 (1985). In that case, the plaintiff slipped and fell in human excrement which was on the floor of defendant’s business. The defendant submitted affidavits from two employees which stated that they saw the excrement fall from an elderly woman walking immediately in front of the plaintiff. The plaintiff submitted her own affidavit which stated that the excrement she stepped in was dried and had footprints in it. This Court, in reversing summary judgment for the defendant, found that the evidence showed there were disputed facts as to how long the excrement was on the floor before the defendant stepped in it.
The present case is distinguishable because there are no disputed facts as to how long the puddle was on the floor before plaintiff stepped in it. The evidence in the record shows that the area was checked at 8:30 a.m., and again at 9:30 a.m. when the store opened, and at both times the floor was clean. Testimony was given that plaintiff’s fall occurred sometime between 10:15 a.m. and 11:00 a.m. An eyewitness to plaintiff’s fall stated in his deposition that he had observed the area for approximately fifteen to twenty minutes prior to the accident, and that he had not noticed the puddle nor had he seen anyone spill any liquid during that time.
Defendant argues that the facts and holding of France v. Winn-Dixie Supermarket, 70 N.C. App. 492, 320 S.E.2d 25 (1984), disc. *577review denied, 313 N.C. 329, 327 S.E.2d 889 (1985), are more closely analogous to the case at bar. In France, the évidence tended to show that the plaintiff slipped and fell in a puddle of pickle juice on the floor of the defendant’s store. Even though the plaintiff presented evidence that another customer, who had been in the store for fifteen or twenty minutes, had seen the broken jar and juice on the floor before the plaintiff fell, the court concluded that the jury could only speculate as to how long the pickle juice had been on the floor. Therefore, the court logically concluded that a directed verdict for the defendant was appropriate.
In order to hold a store owner liable for injuries suffered by one of its customers in its store, the injured customer must show that the owner negligently created the condition causing the injury, or that the owner negligently failed to correct the condition after actual or constructive notice of its existence. Hinson v. Cato’s, Inc., 271 N.C. 738, 157 S.E.2d 537 (1967). If the unsafe condition causing injury was not created by the store owner or one of its employees, the customer alleging injury must show that the condition had existed for such a length of time that the store owner, by the exercise of reasonable inspection, should have known of its existence in time to have removed the danger or given warning of its presence. Pratt v. Tea Co., 218 N.C. 732, 12 S.E.2d 242 (1940).
Plaintiff does not allege that defendant negligently created the condition causing the injury. Furthermore, there is no evidence in the record showing when the spill occurred or for how long the dangerous condition existed. Testimony offered by the parties merely showed that the floor was clean as late as 9:30 a.m., and that an eyewitness had not observed anyone spill anything for the fifteen to twenty minutes prior to plaintiff’s fall. Therefore, it follows that the trier of fact could only speculate as to how long the liquid had been on the floor and whether that length of time was such that defendant knew, or by the exercise of reasonable care should have known, of the existence.of the hazard. Plaintiff has failed to meet his burden of proof and the trial court was correct in declining to speculate as to whether the condition had existed long enough to give defendant notice, either actual or implied. Therefore, I would affirm summary judgment for defendant.