Randall Goodwin and Claudia Goodwin v. Wal-Mart Stores, Inc. d/b/a Wal-Mart Discount City

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

RANDALL GOODWIN and

CLAUDIA GOODWIN

APPELLANTS

V.

WAL-MART STORES, INC. d/b/a

WAL-MART DISCOUNT CITY

APPELLEE

CA 00-620

FEBRUARY 21, 2001

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CA 00-620]

HONORABLE KIM M. SMITH, CIRCUIT JUDGE

AFFIRMED

The appellants, Randall and Claudia Goodwin, brought this tort action against the appellee, Wal-Mart Stores, Inc., after Mr. Goodwin allegedly slipped and fell in appellee's store. Appellants allege that Mr. Goodwin slipped and fell on a plastic bag containing a Halloween wig, which was laying on appellee's aisle floor. After reviewing the pleadings, answers to interrogatories and depositions, the Washington County Circuit Court granted summary judgment in favor of appellee. On appeal, appellants maintain that the trial court erred in granting summary judgment. We find no error and affirm.

On October 12, 1993, Randall Goodwin went to a Wal-Mart store located on 6th Street in Fayetteville, Arkansas. He entered through the front door and walked toward the sporting goods department. In route, he turned down an aisle known as the seasonal aisle. At that time, it was stocked with items for Halloween. This aisle could be observed from

the cashregisters. Mr. Goodwin took only a few steps down the aisle when he allegedly stepped on a wig and fell, landing on his right hip. As a result of the fall, Mr. Goodwin suffered severe physical injury to his back, including a ruptured disk. Kelly Evans, an employee for appellee, was standing at the end of her check-out stand when Mr. Goodwin approached her and informed her that he had fallen on an item in the seasonal aisle. She stated that she "saw what he was talking about."

Appellants filed their lawsuit on November 14, 1994, and took a voluntary non-suit on November 19, 1996. The case was re-filed on November 17, 1997. The complaint alleged that Mr. Goodwin was entitled to damages for appellee's negligence and that Mrs. Goodwin was entitled to damages for loss of services, society, and companionship as a result of that negligence. Subsequently, appellee filed a motion for summary judgment, which the trial court granted.

Rule 56(c) of the Arkansas Rules of Civil Procedure provides that a court should render summary judgment only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If there is any doubt as to whether there are issues to be tried, the motion should be denied. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). In this case the defendant, as the moving party, bore the burden of showing that there were no genuine issues of material fact. Id. Plaintiffs are entitled to have all doubts and inferences resolved in their favor, and summary judgment is not proper if reasonable minds could reach different conclusions when given thefacts. Tullock v. Eck, 311 Ark. 564, 785 S.W.2d 31 (1993).

A property owner has a general duty to exercise ordinary care to maintain his or her premises in a reasonably safe condition for the benefit of invitees. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). The burden of establishing a violation of this duty in a slip-and-fall case is well established. In order to prevail in a typical slip-and-fall case involving an invitee, the plaintiff must show either (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 premises 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. Fred's Stores v. Brooks, 66 Ark. App. 38, 987 S.W.2d 287 (1999). Appellants ask this court to adopt a standard different from the one espoused in Fred's Stores, but we decline to do so. Appellants direct us to Conagra, Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999), which involved a slip-and-fall case in a non-public area. The Conagra case is clearly distinguishable from the case at bar in that Mr. Goodwin allegedly fell in a store open to the public.

The paramount issues in this appeal are whether appellants have shown that there is an issue of material fact as to whether a Halloween wig on appellee's store floor was there due to appellee's negligence, or whether the wig had been on the floor for such a length of time that appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. The supreme court has stated that the mere fact a patron slips and falls in a store does not raise an inference of negligence. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). To prevail against appellee's motion for summaryjudgment, appellants are required to show that a genuine issue of material fact exists in showing Mr. Goodwin's injuries resulted from appellee's negligence and, in deciding whether appellants have succeeded, we view all reasonable inferences in their favor. See Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

After reviewing the pleadings, we believe that appellants were unable to show how or when the wig came to be on the floor; whether the wig was on the floor before Mr. Goodwin fell; if the wig was there before he fell, how long it had been on the floor; or whether any of appellee's employees were aware of the wig being on the floor and failed to pick it up. Mr. Goodwin testified that as he turned the corner to start down the seasonal aisle, he was looking at Halloween masks on display. Mr. Goodwin admitted that he did not see the wig until after he fell and only assumes that is what he fell on. Appellants submitted no evidence to show that any of appellee's employees placed the wig on the floor or knew of its presence on the floor prior to the alleged fall. In fact, Kelly Evans testified that it is appellee's policy to pick up items that are on the floor. We can find no evidence that the wig was on the floor for such a length of time that appellee should have known of its existence and failed to remove it.

At trial, appellants suggested that appellee was negligent in overstocking its seasonal aisle. Ken Hatcher, a former employee of appellee who worked in the loss-prevention department, stated in his affidavit that customers routinely rummaged through merchandise, including Halloween costumes, and left merchandise on the floor. This supports appellee's position that the presence of the wig was caused by an unidentified customer rather than appellee overstocking or some other act of negligence. Kelly Evans, the cashier working forappellee at the time of the accident, testified in her deposition that based on her experience and knowledge while she worked for appellee, she did not believe that appellee overstocked its shelves at that particular time. Appellants presented no evidence that appellee overstocked its shelves.

Summary judgment is no longer referred to as a "drastic" remedy but rather as one of the tools in a trial court's efficiency arsenal. Wallace, supra. We believe that the trial court granted the motion for summary judgment because the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file were such that appellees were entitled to summary judgment.

Affirmed.

Hart and Jennings, JJ., agree.