Scott Nelson v. Harp's Food Stores d/b/a Harp's Marketplace

Arkansas Court of Appeals

K. Max Koonce, II

Not Designated for Publication

DIVISION III CA00-293

November 1, 2000

SCOTT NELSON AN APPEAL FROM SEBASTIAN COUNTY

APPELLANT CIRCUIT COURT

NO. CIV-99-67

V.

HONORABLE J. MICHAEL FITZHUGH,

HARP'S FOOD STORES d/b/a CIRCUIT JUDGE

HARP'S MARKETPLACE

APPELLEE AFFIRMED

This is an appeal from a summary judgment entered against appellant by the Sebastian County Circuit Court. We find that there was no genuine issue of material fact remaining and, therefore, summary judgment was proper.

It is undisputed that Scott Nelson visited Harp's Food Store on March 19, 1998, in search of cleaning supplies. On his way into the store, he stopped to look at a plant display. As he began to move away from the plant stand, he fell and his foot was caught beneath the plant stand; as a result, his leg was broken and his hand was cut as he grabbed the plant stand in an attempt to prevent his fall. Appellant filed a complaint on February 1, 1999, against appellee Harp's Food Stores, stating that the metal plant stands were open at the bottom and that the plants had been watered and the concrete ramp was wet. He said that the shelves were located next to the front entrance and that there was no canopy over the plants at the

time of the accident. He said that he was distracted by the plants and that his left foot slipped on the wet surface and was caught under the metal shelves, which caused him to break his leg.

Appellee filed a motion for summary judgment with two supporting affidavits and a brief that stated that appellant failed to establish negligence, an essential element of his claim.

Appellant filed a response and supporting brief to appellee's motion for summary judgment. He stated in his affidavit attached to his response that it had rained during the early part of the day on which he visited Harp's but that there was no water standing in the parking lot. He said that there was water on the ramp and around the plants as if appellee had watered them and that there was no warning or handrail on the ramp. Appellant said he was wearing non-skid shoes, that he was careful while walking up the ramp, and that his shoelaces were tied. He further stated that the plants distracted his attention and that appellee "had good reason to expect that their invitee's or patron's attention would be drawn to the plants as they walked up the ramp and it knew the invitee had to go around the plant display to get to the entrance door." Appellant further stated that the lighting in the area of the accident was poor.

The only issue before this court is whether summary judgment was proper. Pursuant to Rule 56(c) of the Arkansas Rules of Civil Procedure, in order to grant summary judgment, a trial court must find from the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed that there are no genuine issues of material fact. When this occurs, the moving party is entitled to judgment as a matter of law. All reasonableinferences are viewed in the light most favorable to the non-moving party. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

The standard by which this court reviews summary judgments is to decide if the granting of the motion was appropriate in view of the evidence presented by the moving party. See Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). If a material question of fact remains, then summary judgment was not proper. Id. The moving party has the burden of proving there are no remaining facts at issue, and all proof submitted is viewed in a light most favorable to the non-moving party. Id. Once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the burden then shifts to the non-moving party to rebut that proof and demonstrate the existence of a material issue of fact. Id.

In the first part of the summary judgment analysis, we determine whether the appellee made a prima facie showing of entitlement to summary judgment. Appellee filed a motion for summary judgment with supporting affidavits from Scott Campbell, who is a part-time security officer at Harp's Food Store, and Daniel Grubbs, the assistant store manager. Campbell said in his affidavit that a customer notified him that appellant had fallen outside the store. He stated that he spoke with appellant and that appellant said: "[I] was just walking across there and fell down." Campbell stated that he noticed that one of appellant's shoes was untied and that there were no wet surfaces and no obstacles over which appellant could have fallen. Campbell also said that the concrete was rough and slip-proof.

Grubbs, the assistant store manager for Harp's, stated in his affidavit that he was called to the scene after appellant fell. Appellant told him that he was looking at the plants,that he was coming around the corner and tripped, and that he had no idea what happened. Grubbs stated that he could not see anything over which appellant could have tripped but that "he could have caught his foot on the corner of the frame or foundation of this steel canopy." Grubbs stated:

Apparently, [appellant] was looking at the plants when he turned and hung his foot on the front northern corner of the shelves. I did notice one of his shoelaces was untied. The shelves were in their normal position to display the plants and were not positioned in an abnormal, unreasonable or negligent manner.... The area is well lit, no obstructions evident, no water, no substances on the ground, the canopy itself is not that long - maybe 6 ft. long -it is not dark and has plenty of walking space inside. The surface was constructed of rough concrete which is a non-slippery surface.

Appellee deposed appellant, and in his deposition testimony, appellant stated that his foot slipped and that the shelf caught the whole end of the toe of his shoe. He stated that he did not know what caused his foot to slip and that he was looking at the plants when the incident occurred.

As noted above, appellee had the burden of making an initial showing that there were no remaining facts at issue. In the present case, after reviewing the proof submitted, it is evident that appellee made this showing and therefore established a prima facie entitlement to summary judgment. The burden then shifted to appellant to offer proof-for-proof evidence that material facts still exist.

In his response, appellant said that appellee had been negligent by placing the plants in a location it knew would distract invitees, thereby drawing their attention away from where they were walking. However, appellant admitted in his deposition that he did not know what caused him to slip, and he has offered no proof of the cause.

In slip-and-fall cases the plaintiff must prove either one of two things: 1) that the presence of a substance upon the premises was the result of the defendant's negligence, or 2) that the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993).

Appellant stated in his deposition that he supposed his foot slipped because the concrete was slick from the water. However, conjecture and speculation are not enough to establish negligence; the burden is always on the party asserting negligence to prove it, as negligence is never presumed. Morehart v. Dillard Dep't Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). Water on the walkway alone is not enough to establish negligence. See Mankey v. Wal-Mart Stores, Inc., supra. Appellant offered no proof that appellee knew of the water on the entryway or that appellee allowed it to remain there. Appellee submitted affidavits to the contrary from the assistant store manager and from the security officer on site, and this information, combined with appellant's admission that he did not know what caused him to slip is sufficient to warrant summary judgment. Appellant also alleged that he was injured because of the open-bottom shelves. Appellant did not allege that the shelves were the cause of his fall but rather that, after he fell, his toe became lodged under the shelves and his leg was broken.

Appellant argues that the obvious-danger rule and its exception are applicable to the case at bar. The obvious-danger rule provides that any duty owed by an owner or occupier of land to a business invitee ends if the plaintiff knows of the danger; and the exception is that the rule does not bar recovery when the invitee is forced, as a practical matter, toencounter that danger in order to perform his or her job. Jenkins v. International Paper Co., 318 Ark. 663, 873 S.W.2d 300 (1994). The obvious-danger rule is inapplicable to the case at bar because appellant failed to prove that a danger existed in that he did not know what caused his fall.

The supreme court affirmed a summary judgment in Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992), when the appellant noticed a brown substance on the floor in a grocery store after she fell. In her deposition, Sanders admitted that she did not know what the substance was but believed it to have been tobacco juice; that she had no idea whether an employee of the store was responsible for the substance being on the floor; and that she did not know how long the substance had been on the floor. The store manager said in his affidavit that, to the best of his knowledge, no employee of the store was aware of a substance on aisle four on the day of the accident. In his deposition, the manager said that his duties included checking the floor for foreign objects, that all employees were trained to do the same, and that the floors were mopped twice a day. Another employee gave an affidavit and stated that he had checked that aisle fifteen minutes prior to the accident and that he had not seen a foreign substance on the floor. He said that, after the accident, he checked the floor again and still did not find a foreign substance. The court held that the appellant did not satisfy the first prong of the test because she failed to prove that a foreign substance was present due to negligence. Regarding the second prong of the slip-and-fall test, the court held that the appellant failed to establish the time between the appearance of the substance on the floor and the time of the accident. The supreme court held that summary judgment was proper.

In the instant case, appellant failed to offer any proof to rebut the facts that appellee presented in its motion for summary judgment and supporting affidavits on the issue of negligence. Appellant admitted that he does not know how he slipped. That is a key fact that is needed to establish that appellee was negligent.

After reviewing the pleadings, together with appellant's deposition and the affidavits supporting the motion for summary judgment, it is evident that no genuine issue of material fact remains. We therefore affirm the trial court's decision to grant summary judgment.

Affirmed.

Stroud and Griffen, JJ., agree.