RAMON HERNANDEZ V K MART CORP
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STATE OF MICHIGAN
COURT OF APPEALS
RAMON HERNANDEZ,
UNPUBLISHED
July 20, 2004
Plaintiff-Appellee,
v
No. 235818
Wayne Circuit Court
LC No. 98-835314-NO
K MART CORP.,
Defendant-Appellant.
Before: Zahra, P.J., and Talbot and Wilder, JJ.
PER CURIAM.
In this premises liability action, defendant appeals from the trial court’s May 1, 2001,
entry of a judgment in favor of plaintiff. We reverse.
Plaintiff brought suit after sustaining injuries as a result of a fall in defendant’s store.
Plaintiff apparently stepped on a slippery soapy substance on the store’s floor.
Defendant first argues that the trial court erred as a matter of law in denying its motion
for a directed verdict, as well as its motion for a judgment notwithstanding the verdict. We
review the trial court’s rulings on these motions de novo. Sniecinski v Blue Cross & Blue Shield
of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003).
“In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the
land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), citing Bertrand
v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). Our Supreme Court, in Clark v
Kmart Corp, 465 Mich 416, 419; 634 NW2d 347 (2001), reiterated:
The duties of a storekeeper to customers regarding dangerous conditions are well
established and were set forth in Serinto v Borman Food Stores, 380 Mich 637,
640-641; 158 NW2d 485 (1968):
“It is the duty of a storekeeper to provide reasonably safe aisles for
customers and he is liable for injury resulting from an unsafe
condition either caused by the active negligence of himself and his
employees or, if otherwise caused, where known to the storekeeper
or is of such a character or has existed a sufficient length of time
-1-
that he should have had knowledge of it.” (emphasis added by the
Serinto Court), citations omitted.
In Clark, supra, the defendant appealed from a jury verdict in favor of the plaintiff, who
slipped and fell on grapes while shopping in the defendant’s store. The issue there, as here, was
whether the plaintiff had offered sufficient evidence that the defendant should have known that
the grapes on the floor presented a hazard. In affirming the verdict for plaintiff, the Clark Court,
465 Mich at 419-420, observed:
[T]his case . . . presents evidence independent of the condition of the grapes,
indicating that the grapes had been on the floor for a substantial period of time,
making it unnecessary to determine whether Ritter [v Meijer, Inc, 128 Mich App
783; 341 NW2d 220 (1983),] was correctly decided.
In this case, there was no direct evidence of when or how the grapes came to be
on the floor of the check-out lane. There was testimony from [the defendants’]
witnesses about the responsibilities of employees for observing and either
reporting or remedying dangerous conditions. However, there was no evidence
that any employee was actually aware of the grapes in the check-out lane.
However, a KMart employee testified that the check-out lane would have been
closed no later than 2:30 a.m., about an hour before plaintiff arrived. Given that
evidence, a jury could reasonably infer that the loose grapes were, more likely
than not, dropped when a customer brought grapes to the check-out lane to buy
them while it was still open. From this, the jury could infer that an employee of
defendant should have noticed the grapes at some point before or during the
closing of the lane and either cleaned them up, or asked another employee to do
so. Further, the fact that the check-out lane had been closed for about an hour
before plaintiff fell establishes a sufficient length of time that the jury could infer
that defendant should have discovered and rectified the condition.
Although the Clark Court revived a jury award for the plaintiff, the reasoning in Clark
compels reversal here. Here, the only evidence offered by plaintiff to demonstrate that defendant
should have been aware of the soapy substance on the floor was the testimony of plaintiff and his
family that there were “dirty,” “brownish mushy” footprints in the puddle heading in the
opposite direction; this suggested that at least one other person had walked in the puddle before
plaintiff and his family did. However, there is nothing more to suggest that the puddle had been
on the floor for any significant length of time, or that defendant should have known about it. No
one except plaintiff and his family testified that they observed the footprints. It was just as likely
that the spill happened seconds before plaintiff slipped as it was that the spill happened hours
before plaintiff’s accident. In contrast to Clark, id. at 421, where our Supreme Court recognized
that the evidence relating to the closing of an aisle led to “the availability of the inference that the
grapes had been on the floor for at least an hour,” there is no such evidence here. Rather, the
jury was left to speculate as to when the spill occurred to determine whether defendant’s
employees had constructive notice. Such speculation is impermissible, and cannot serve as the
basis of a jury award. Skinner v Square D Co, 445 Mich 153, 164-166; 516 NW2d 475 (1994).
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Because there was no evidence from which the jury could conclude when the spill
occurred, plaintiff failed to establish a prima facie case of negligence. We reverse.1
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
1
Because of our reversal, we need not consider defendant’s other issues on appeal.
-3-
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