WAL-MART STORES, INC. v. JOHN HULSE
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002369-MR
WAL-MART STORES, INC.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 99-CI-00037
v.
JOHN HULSE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Wal-Mart Stores, Inc., appeals from
a jury verdict awarding damages to appellee, John Hulse, as a
result of injuries incurred by Hulse in a slip and fall accident
at a Wal-Mart store.
As the trial court erred in denying Wal-
Mart's motion for a directed verdict, we reverse.
On February 15, 1998, John Hulse, along with his wife
and two relatives, went to the Wal-Mart store in Jackson,
Kentucky.
After entering the store, Hulse separated from the
others and went to the sporting goods section of the store.
short time later, Hulse came back out to the main aisle, and
decided to find his wife in the craft department.
Hulse cut
A
through the middle of two displays in order to avoid people
coming down the aisle.
As he stepped around the corner of one of
the displays, Hulse slipped in a liquid and fell to the floor,
injuring his right shoulder, arm, and wrist.
Hulse brought a negligence action against Wal-Mart, and
a jury trial was held on September 18, 2000.
At trial, Hulse
testified that he did not see the spill, which he described as a
clear liquid covering four or five tiles, until after he had
fallen.
Hulse stated that after he fell, he raised up and looked
around for help, but did not see any Wal-Mart employees.
Hulse
testified that he saw two customers walking in his direction, but
they turned away and did not come over to help.
Hulse got up and
located two employees in what he believed was a break room, and
told them he had fallen in liquid on the floor and that it needed
to be cleaned up.
One of the employees, whom Hulse believed to
be Polly Clemons, left quickly, while the other employee gave
Hulse some towels to wipe the liquid off of his pants.
Hulse
then proceeded back to the spill, at which time he met Wal-Mart
assistant manager Agnes Hall and two other employees on their way
to clean up the spill.
Hulse estimated that from the time he
fell, found the employees in the break room, and met Hall, could
have been as much as five minutes or more.
Hulse testified that
Wal-Mart did not make any announcements.
Brenda Jewell testified that she was shopping in the
Wal-Mart on the same day when she, too, slipped and fell in a
clear liquid.
She got up after two or three seconds, did not see
any Wal-Mart personnel around, and therefore went to the back of
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the store where she found two Wal-Mart employees who returned to
the spill site with her.
Jewell stated that it took her two or
three minutes to find the Wal-Mart employees.
Jewell testified
that after returning to the spot with the two employees, Agnes
Hall came up to the site.
Jewell testified that she remembered
seeing Hulse standing near the site while it was being cleaned
up, and that he had a wet spot on his back.
Jewell described the
substance that she fell in as a clear liquid which covered at
least a three-foot circle.
Jewell testified that she did not
hear any announcements made over the store's speaker.
Agnes Hall, an assistant manager of the Wal-Mart,
testified that Jewell walked up to her and informed her that
there was a spill on the floor and that she (Jewell) had fallen
in it.
Hall stated that she and several associates immediately
went to the site of the spill to get it under control.
Hall
testified that caution cones and buggies were placed to block
people from approaching the spill.
Despite the cones, a
customer, Tina Hernandez started to come through the area with a
baby.
Hall stepped in and tried to stop Hernandez, at which
point Hall fell and Hernandez fell on top of her.
Hall testified
that the spill was about two feet long and two feet wide, and
that it was later determined the liquid had come from a bottle
that had been opened and put back on a shelf.
Hall was not sure
if Hulse fell before, or after, Jewell had fallen.
Hall testified that the employee responsible for the
area where the spill was located, the "chemical section", that
day was Jason Fugate, who was responsible for a total area of
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about four aisles.
Hall stated that Fugate's job was to stay in
those four aisles, unless he was on a break or getting something
down for a customer.
Hall testified that the falls all occurred
sometime between 2:30 and 3:00 p.m., at which time the employees
were engaged in "zone defense".
Zone defense occurs from 1:00 to
3:00, at which time employees are required to patrol their areas,
and do nothing but straighten and clean, unless a customer needs
help.
Hall testified that when there is a spill, "code white" is
announced, at which time employees in the area come to assist.
Hall testified that even during times other than "zone defense",
spills are cleaned up immediately after they are discovered, and
that when a spill is noted, an employee goes directly to the
spill and guards it until it is taken care of.
Polly Clemons, a Wal-Mart support team manager,
testified that she was in the layaway department, when Hulse
approached and told her that there was a spill on the floor.
Clemons stated that she immediately went to the spill site, which
Hulse had pointed to, and found Agnes Hall present and the
caution cones in place.
Clemons testified that it was her job to
walk around the store and make sure everyone was in "zone
defense".
Clemons testified that she had been through the area
of the spill a few minutes prior to Hulse's reporting it to her,
but had not seen a spill.
Jason Fugate, the chemical section
employee, testified that he had been away from the section for
five or ten minutes, helping get down a vacuum cleaner for a
customer, when he heard the "code white" over the intercom, after
which he immediately returned to the chemical section.
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Fugate
stated that he had not seen a spill before he left the chemical
section.
At the close of Hulse's case, and again at the close of
all of the evidence, Wal-Mart moved for a directed verdict, both
of which motions the court denied.
The jury found Wal-Mart 100%
liable for Hulse's injuries, and awarded him $73,670.40 in
damages.
On September 28, 2000, Wal-Mart filed a motion for
judgment notwithstanding the verdict and new trial, which the
court denied on October 6, 2000.
This appeal followed.
On appeal, Wal-Mart argues that the court erred in
denying its motion for directed verdict, due to the lack of
evidence that Wal-Mart knew of the substance on the floor and
lack of evidence as to how long the substance had been there.
"It is well settled law in Kentucky that a business is not
absolutely liable to its invitees."
Stump v. Wal-Mart Stores,
Inc., 946 F. Supp. 492, 493 (E.D. Ky. 1996), citing Wiggins v.
Scruggs, Ky., 442 S.W.2d 581, 583 (1969).
A store owner has a
duty to exercise ordinary care to have his premises in a
reasonably safe condition for the expected use of the invitee.
Smith v. Smith, Ky., 441 S.W.2d 165 (1969).
Where the floor condition is one which is
traceable to the possessor's own act - that
is, a condition created by him or under his
authority - or is a condition in connection
with which the possessor is shown to have
taken action, no proof of notice of the
condition is necessary. However, where it is
not shown that the condition was created by
the possessor or under his authority, or is
one about which he has taken action, then it
is necessary to introduce sufficient proof by
either direct evidence or circumstantial
evidence that the condition existed a
sufficient length of time prior to injury so
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that in the exercise of ordinary care, the
possessor could have discovered it and either
remedied it or given fair adequate warning of
its existence to those who might be
endangered by it.
Cumberland College v. Gaines, Ky., 432 S.W.2d 650, 652 (1968).
No testimony was presented at trial, and Hulse does not allege,
that Wal-Mart created the spill on the floor.
Id.
Thus, Hulse
was required to establish either by direct or circumstantial
evidence that the substance was on the floor a sufficient length
of time prior to his fall so that in the exercise of ordinary
care, Wal-Mart could have discovered it.
Jones v. Jarvis, Ky.,
437 S.W.2d 189 (1969); Gaines, 432 S.W.2d at 652.
The standard of review of a trial court's denial of a
motion for directed verdict is as follows:
Upon review of the evidence supporting a
judgment entered upon a jury verdict, the
role of an appellate court is limited to
determining whether the trial court erred in
failing to grant the motion for directed
verdict. All evidence which favors the
prevailing party must be taken as true and
the reviewing court is not at liberty to
determine credibility or the weight which
should be given to the evidence, these being
functions reserved to the trier of fact. The
prevailing party is entitled to all
reasonable inferences which may be drawn from
the evidence. Upon completion of such an
evidentiary review, the appellate court must
determine whether the verdict rendered is
"'palpably or flagrantly' against the
evidence so as 'to indicate that it was
reached as a result of passion or
prejudice.'"
Lewis v. Bledsoe Surface Mining Co., Ky., 798 S.W.2d 459, 461-462
(1990) (citations omitted).
No evidence was presented at trial which would indicate
the amount of time the liquid was on the floor prior to Hulse's
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fall.
Smith v. Wal-Mart Stores, Inc., Ky., 6 S.W.3d 829 (1999);
Jones, 437 S.W.2d 189.
Hall testified that the spill came from a
bottle that had been opened and put back on a shelf.
The
evidence indicated that Hulse slipped within a short time of
Brenda Jewell.
Jewell testified that it took her 2-3 minutes
from the time she fell until she located the Wal-Mart employees,
who immediately returned to the site to clean up the spill.
There was no evidence to indicate that Wal-Mart knew of the spill
prior to Jewell's report.
Clemons, the support team manager,
did not know how long the spill had been there, but testified
that she had walked through the area within a few minutes of
Hulse reporting the spill, at which time there was nothing on the
floor.
Fugate, on duty in the chemical section, testified that
he had not seen a spill prior to leaving the area, five to ten
minutes prior to learning of the spill's existence.
As insufficient evidence was presented as to the length
of time the liquid was on the floor, we conclude that a jury
could not reasonably infer that the spill existed for a
sufficient length of time prior to Hulse's fall so that Wal-Mart,
in the exercise of ordinary care, could have discovered its
existence, and remedied or warned of it.
652; Jones, 437 S.W.2d 189.
Gaines, 432 S.W.2d at
Hence, the question of negligence
should not have been submitted to the jury and Wal-Mart was
entitled to a directed verdict.
Smith, 6 S.W.3d 829; Jones, 437
S.W.2d 189.
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For the aforementioned reasons, we reverse the judgment
of the Breathitt Circuit Court and remand for the entry of an
appropriate order.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jason E. Williams
London, Kentucky
Brendon D. Miller
Jackson, Kentucky
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