Thompson v. American Drug Stores, Inc.

Ola Mae THOMPSON v. AMERICAN DRUG STORES,
INC.

96-615                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Negligence -- slip-and-fall cases -- proof required in
     foreign-substance cases. -- In slip-and-fall cases involving
     a foreign substance on the floor, the plaintiff must prove
     either that the presence of the substance upon the floor was
     the result of the defendant's negligence or that the substance
     had been on the floor for such a length of time that the
     defendant's employees knew or reasonably should have known of
     its presence and failed to use ordinary care to remove it; a
     plaintiff may also allege that a defendant has been negligent
     in cleaning or waxing a floor; if wax is applied to the floor,
     it must be in a manner that affords reasonably safe conditions
     for the proprietor's invitees; if such compounds cannot be
     used on a particular type of floor material without violation
     of the duty to exercise ordinary care for the safety of
     invitees, by reason of the dangerous conditions they create,
     they should not be used at all.

2.   Jury -- instructions -- when reversal may be warranted. --   
     An appellant may not obtain a reversal on an instruction
     unless the instruction proffered by the appellant would have
     allowed the judge to properly instruct the jury; if a
     proffered instruction is as incorrect as the instruction it
     purports to replace, reversal is not warranted.

3.   Jury -- instruction proffered by appellant incomplete --
     court's failure to issue proffered instruction did not warrant
     reversal. -- Had the court given the instruction proffered by
     appellant rather than the instruction that was given, the jury
     would not have been properly instructed; the version of the
     instruction proffered by appellant was as incomplete as the
     instruction given by the court; it did not contain the
     elements of proof necessary for a traditional, foreign-
     substance slip-and-fall cause of action; had the court given
     the proffered instruction, it would have erred; therefore, the
     court declined to reverse on this issue. 

4.   Appeal & error -- record on appeal confined to that which is
     abstracted -- issue not reached. -- The two arguments raised
     by appellant regarding evidentiary rulings by the trial court
     were not addressed on appeal due to deficiencies in the
     appellant's abstract; the abstract did not contain the
     appellant's objections to the evidence, the proffers of
     evidence, or the court's rulings; the record on appeal is
     confined to that which is abstracted; the court will not
     consider matters contained in the argument portion of the
     brief as a substitute. 


     Appeal from Pulaski Circuit Court; John Ward, Judge; affirmed.
     J.R. Nash, for appellant.
     Wright, Lindsey & Jennings, by:  Alston Jennings, Jr., for
appellee.

     Bradley D. Jesson, Chief Justice.
     The appellant, Ola Mae Thompson, slipped and fell at an Osco
Drug Store in Little Rock.  The store was owned and operated by the
appellee, American Drug Stores, Inc.  Mrs. Thompson sued American
Drug Stores for negligence, and the case went to trial.  The jury
found in favor of American Drug Stores.  We affirm.
     It was raining on the morning of May 24, 1993, when Mrs.
Thompson entered the Osco Drug Store for the purpose of getting a
prescription filled.  A short distance inside the store, near the
shopping carts, she fell.  She was assisted to her feet by store
employees, got her prescription filled, and left the store.  A
short time later, she went to the hospital, where she complained
that she had hurt her knee, her neck, and her lower back in the
fall.  Over the next two years, she incurred over $13,000.00 in
medical bills.   
     In July of 1995, Mrs. Thompson filed suit against American
Drug Stores.  She alleged that she had stepped in water on the
floor, which had caused her to fall.  She also claimed that
American Drug had failed to warn its patrons that its floor became
extremely slick when wet.  When the case went to trial, Mrs.
Thompson presented two alternative theories of recovery.  Part of
her proof was directed to her contention that she fell because
there was water on the floor.  She testified that, while she had
not actually seen water on the floor, when she arose from the fall,
the back of her dress was wet.  The other part of her proof was
directed to the theory that American Drug had negligently used a
type of wax in its entry area which became extremely slick when
wet.  In support of this theory, Mrs. Thompson presented the
testimony of Mr. Kelly Rogers.  Rogers, who had been in the tile
business for thirty-six years, said that the wax on the Osco floor
"looked to me like it was an acrylic-type wax".  He further
testified that acrylic wax is extremely slick when wet.  The
appellee's expert, Billy Rutledge, testified that the type of wax
used on the floor had a "wet look" but was actually very slip-
resistant.  On appeal, Mrs. Thompson argues that the trial court's
instructions to the jury did not encompass both of her theories.  
     The jury was instructed with the following version of AMI 3d
1105:

     Plaintiff contends that she slipped and fell on water
     which was present on defendant's premises.  Defendant,
     American Drug Stores, Inc., owed plaintiff a duty to use
     ordinary care to maintain the premises in a reasonably
     safe condition.  To establish a violation of this duty,
     plaintiff must prove either that the presence of the
     water upon the floor was the result of negligence on the
     part of the defendant, American Drug Stores, Inc., or
     that the defendant, American Drug Stores, Inc., knew of
     the presence of the water upon the floor, or that the
     water had been on the floor for such a length of time
     that the defendant, American Drug Stores, Inc.,
     reasonably should have known of its presence and failed
     to use ordinary care to remove it.


     Mrs. Thompson objected to the use of 1105 as follows:

     I object to 1105 because it tells the jury that they can
     disregard the wax and problems presented by the wax.  The
     testimony of the defendant's expert was this wax on the
     floor, the wax makes it look like water on the floor,
     extremely difficult for plaintiff or any other people to
     see water on the floor.  If we go simply with a foreign
     substance instruction, as it pertains to water, that
     tells the jury to disregard the problems presented to
     pedestrians by this wax and its "deep wet look" that they
     admitted they used by the defendant.  I think negligence
     is already covered when we get to the foreign substance,
     it misleads the jury in what they can consider.  I offer
     1104 to be a better instruction.


     AMI 3d 1104, which Mrs. Thompson proffered in place of 1105,
read as follows:

     In this case, Ola Thompson was a business invitee upon
     the premises of American Drug Stores, Inc.  American Drug
     Stores, Inc. owed Ola Thompson a duty to use ordinary
     care to maintain the premises in a reasonably safe
     condition.

 

     In her brief, the appellant states that, "the negligence of
the defendant in letting water get on the floor and letting it stay
there was a secondary consideration and certainly not the thrust of
the plaintiff's case.  There is a definite and clear distinction
between these two theories of negligence in fall cases. . . ."  
The appellant is correct.  In slip-and-fall cases involving a
foreign substance on the floor, the plaintiff must prove either
that the presence of the substance upon the floor was the result of
the defendant's negligence, or, that the substance had been on the
floor for such a length of time that the defendant's employees knew
or reasonably should have known of its presence and failed to use
ordinary care to remove it.  Wal-Mart Stores, Inc. v. Kelton, 305
Ark. 173, 806 S.W.2d 373 (1991).  A plaintiff may also allege that
a defendant has been negligent in cleaning or waxing a floor.  In
National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488
(1972), we quoted, with approval, the following language from
Nicola v. Pacific Gas & Electric Co., 50 Cal. App. 2d 612, 123 P.2d 529 (1942):

     If wax, or, as in the present case, both wax and soft
     soap, are applied to the floor, it must be in such manner
     as to afford reasonably safe conditions for the
     proprietor's invitees, and if such compounds cannot be
     used on a particular type of floor material without
     violation of the duty to exercise ordinary care for the
     safety of invitees, by reason of the dangerous conditions
     they create, they should not be used at all.



     We also impliedly recognized such a theory of recovery in J.M.
Mulligan's Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554
(1989), but said that the plaintiff did not prove her case.
     The AMI 1105-based instruction given by the court did not
encompass both of the appellant's theories.  However, the appellant
may not obtain a reversal unless the instruction that she proffered
would have allowed the judge to properly instruct the jury.  If a
proffered instruction is as incorrect as the instruction it
purports to replace, reversal is not warranted.  Ozark Kenworth,
Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984);  Dickerson
Constr. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).  Had the
court given the 1104-based instruction in place of the 1105-based
instruction, the jury would not have been properly instructed.  The
version of AMI 3d 1104 proffered by Mrs. Thompson was as incomplete
as the instruction given by the court.  It did not contain the
elements of proof necessary for a traditional, foreign-substance
slip-and-fall cause of action.  That, too, was a part of Mrs.
Thompson's case.  Had the court given the proffered instruction, it
would have erred.  Therefore, we will not reverse on this issue.
     Mrs. Thompson makes two other arguments on appeal, both
regarding evidentiary rulings by the trial court.  She claims that,
when she returned from the hospital on the day of her fall, she
telephoned the Osco store and told them to get the water off the
floor.  Supposedly, an employee responded that they already had.  
The trial court granted American Drug's motion in limine regarding
this testimony.   The court also excluded the testimony of expert
witness Kelly Rogers regarding the types of tile or floor covering
used by other stores, which, in his opinion, should have been used
by Osco.  We are unable to address these issues due to deficiencies
in the appellant's abstract.  The abstract does not contain the
appellant's objections to this evidence, the proffers of evidence,
or the court's rulings.  Some of the material which should have
been abstracted is set out in the argument portion of the
appellant's brief.  However, the record on appeal is confined to
that which is abstracted.  We will not consider matters contained
in the argument portion of the brief as a substitute.  In the
Matter of the Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735
(1996);  Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994).
     Affirmed.
     Newbern and Roaf, JJ., dissent.

=================================================================
           David Newbern, Associate Justice, dissents.
     The majority opinion correctly points out that AMI 3d 1105 was
a proper instruction to the jury in view of the evidence that Mrs.
Thompson's fall may have been caused by a foreign object on the
floor of the drug store, i.e., water.  It is also correct for the
majority to say that, had the Trial Court refused to give AMI 3d
1105 and given only the much more general AMI 3d 1104, that would
have been error.    
     As the majority seems to concede, however, AMI 3d 1104 would
have been a proper instruction, as it would have brought before the
jury the question of negligence in the use of a particular kind of
wax on the floor where Mrs. Thompson fell.  The proper course of
the Trial Court would have been to give both instructions.  
     Although Mrs. Thompson asked that 1104 be given in place of
1105, I would not punish her for the error in asking that 1105 not
be used.  She proffered 1104.  It would have been a correct
instruction, and I think she has demonstrated prejudice as a result
of the instruction not being given.  She proffered the instruction
and explained why it was appropriate.  See Ark. R. Civ. P. 51; City
of Little Rock v. Webber, 298 Ark. 382, 767 S.W.2d 529 (1989).  It
should have been given.
     I respectfully dissent.
     Roaf, J., joins.