Stacy Wineland v. Wal-Mart Stores, Inc.

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CA 03-842

February 25, 2004







 John F. Stroud, Jr., Chief Judge

           This is the second appeal from an order granting summary judgment. On May 21, 2003, we dismissed the first appeal for lack of a final order because appellant’s claim against a janitorial service, United Janitorial Services, Inc. (“UJS”), remained unresolved. Wineland v. Wal-Mart Stores, Inc., No. CA02-1304 (Ark. App. May 21, 2003). The trial court entered a default judgment against UJS on July 11, 2003, making the previous summary judgment in favor of appellee Wal-Mart Stores, Inc., final and appealable. We reverse and remand for trial.

           Appellant Stacy Wineland appeals from the circuit court’s granting of summary judgment in favor of Wal-Mart in her negligence suit. In her complaint, appellant alleged that she suffered injuries resulting from a fall in Wal-Mart’s Paragould store after she slipped on a wet floor that had been mopped by a UJS cleaning crew. Wal-Mart answered, denying the allegations of the complaint, and later filed a third-party complaint against UJS, alleging that UJS was responsible for the foreign substance on the floor and that UJS was liable to Wal-Mart for all or part of appellant’s claim against Wal-Mart. Appellant then followed with a “cross-complaint” against UJS, alleging that, because UJS was responsible for the foreign substance being on the floor, UJS acted negligently and was liable for damages to appellant. Wal-Mart filed its motion for summary judgment, alleging that UJS was responsible for the foreign substance being on the floor, that Wal-Mart was not responsible for the action of its independent contractor, UJS, and that there was no dispute about any material fact.

           In her deposition, appellant testified that she went to Wal-Mart’s store on March 18, 2001, at 3:00 a.m., and walked to the health and beauty aid section. She stated that she made her selection, took approximately ten steps, then slipped and fell at the end of the aisle. She also testified that, prior to asking for assistance in locating her item, both she and a store employee had walked through the area where she later fell. Appellant stated that, at that time, she noticed a man in a red Wal-Mart vest who appeared to be stocking the aisle across from where they entered. She stated that, after she fell, she noticed a person operating a floor buffer across the aisle from where she fell. She also stated that neither this man nor anyone else was around when she slipped and fell. Appellant testified that she did not see anyone mopping the floor or any caution cones or signs on the floor.

           Appellant stated that she believed she slipped in water or something left on the floor by the cleaning service. She did not have any information that would lead her to believe that anyone from Wal-Mart knew that the cleaning service had left water on the floor. Appellant stated that the only indication she had as to how long the water had been on the floor was that the employee assisting her walked down the aisle first and then she (appellant) later walked down the aisle and slipped. She guessed that the water was put on the floor between the time the salesperson walked down the aisle and when appellant walked down the aisle, which would have been a minute or two at the most.

           Excerpts from the deposition of Sandy Jarrett, the assistant manager for Wal-Mart, were provided. Jarrett was working the night shift at the time of the accident. Jarrett stated that she believed that six or seven workers comprised the cleaning crew. She stated that neither she nor any of the other employees at the Wal-Mart store in Paragould ever supervised or instructed the crew as to cleaning the floor or putting out caution signs. Jarrett also stated that she saw the cleaning crew only during the night shift but that she believed that the same people also worked during the day shift. Jarrett stated that she had no knowledge of the payment arrangements between Wal-Mart and UJS.

           Jarrett stated that the cleaning crew generally came in at approximately 10:00 p.m. and would finish up at approximately 7:00 a.m. She stated that the UJS supervisor was in charge of seeing that janitorial services were properly performed, while the store management would check to see that the store was cleaned and that the janitorial service arrived to do its job. She stated that, if she saw something that was not properly cleaned, she would go to the UJS supervisor. She also admitted that Wal-Mart has mops and water buckets displaying the words “wet floor, caution” as well as signs with the same words. Jarrett said she reported the incident where appellant fell to the claims management department of the home office but that she did not see the report or the letter that the claims management department sent to UJS at that time. She was shown a copy of the letter that claims management sent to UJS, which stated: “The accident, as reported, is claimant slipped and fell in water left on the floor from the cleaning crew. There was a caution cone down.” Jarrett stated that she was not aware of any caution cones on the floor when she was at the scene. Jarrett stated that the store has a hard tile floor and that, when water is left on it, it can become slippery.

           Jarrett identified Michael Moore, a Wal-Mart employee, as being present at the incident prior to her arrival on the scene. She stated that Moore took photographs and that he was the only other person involved in the investigation of appellant’s fall. Jarrett agreed that UJS was responsible for the presence of any foreign substances on the floor at the time of appellant’s fall. She also agreed that UJS was negligent in allowing a foreign substance to remain after cleaning the floor and was responsible for causing the accident. Jarrett stated that UJS kept its equipment at the store but that they removed their equipment when their contract was terminated. She stated that she saw water that was left by the cleaning crew up against the lip of the aisle end cap. She also stated that she believed that the noise made by the machinery used by the cleaning personnel was sufficient notice to customers so that placing cones was unnecessary.

           The deposition testimony of Terry Melton was also introduced. Melton stated that he was hired in December 2000 as the manager of the Paragould store and, at that time, UJS was providing cleaning services to the store. Melton testified that he was not responsible for hiring UJS but would send the invoices to the invoice office for payment. He stated that UJS operated out of Memphis, Tennessee, and that their boss was Karen Rensch. Melton stated that the local store had to approve the invoice and that the home office would mail a check. The invoices did not show how many hours the personnel worked or give other information. Melton stated that UJS was the only cleaning crew since he took over in December 2000. He stated that they cleaned the store every night and had a porter who worked during the day. Melton stated that he never instructed them on how to do the cleaning but that, occasionally, he would advise the crew to strip and wax a certain section of the store. Melton admitted that, if water gets on the tile floor, it can become slick. He also admitted that, if no caution cone or other warning was visible, a customer would not be able to tell whether there was water present unless there was an excessive amount. Melton stated that he was not aware of any Wal-Mart employees having any knowledge of the presence of the substance on the floor before appellant stepped in it. He also stated that he was not aware of any Wal-Mart employees causing the substance to be on the floor. He agreed that Wal-Mart had a responsibility to maintain the store in a reasonably safe condition and that, if water was left on the floor, it would not be safe.

           The deposition testimony of Michael Moore was also introduced. Moore stated that, at the time of the accident, his job title was team member, which entailed helping the assistant manager with various duties. He stated that he stocks shelves or assists customers in locating items but that he does not have anything to do with cleaning. He stated that he never mopped the floor unless he made a spill himself. He also stated that, if he saw a spill on the floor, he would stand there and instruct another associate to get a mop to clean up the spill. Moore admitted that Wal-Mart has mops and buckets for that type of incident and that they have caution signs that are routinely placed inside the store.

           Moore stated that an outside janitorial service was in charge of cleaning the floors in March 2001. He stated that they did not report to store management but that they would just come in and do their job. He also admitted that the crew kept its equipment at the store and that they did not use Wal-Mart equipment. He stated that the scrubber released water to the scrub pads, and that a squeegee on the back helped vacuum up the water.

           Moore stated that he was stocking freight on the grocery side of the store between 3:00 a.m. and 4:00 a.m. on the morning of March 18, when he was paged to the cosmetics section and met appellant, who took him to the place where she fell. He said he noticed a puddle of water about the size of a half dollar against the kick plate of the shelf but that he did not notice a wet streak along the side of the aisle. He admitted that there were no wet floor signs or other warnings visible. He reported the incident to Sandy Jarrett, who told appellant to fill out a report. Moore stated that the puddle was on the base of the end cap and that he took a photograph of the scene but with a wrong type of camera. He also stated that the scene was later photographed with another camera. Moore stated that he could not remember whether anyone was stocking merchandise at the end of aisle near the scene of the accident. He also admitted that, if there was water on the floor without caution warnings, that would be an unsafe condition. Moore stated that he had seen cleaning personnel block off an aisle while they were using the scrubbing machine. In those instances, they would take a yellow caution ribbon and tie it around the area where they were working. He also stated that they would turn buggies upside down at the ends of the aisles. He admitted that the aisle was not blocked off at the time of the accident. He also stated that the only time the cleaning crew blocked off an aisle was when they were stripping the floor in preparation for waxing.

           In the circuit court’s order granting Wal-Mart summary judgment, the court concluded that the cleaning crew operated as an independent contractor. This appeal followed.

           On appeal, appellant argues that the circuit court erred in granting summary judgment because there were genuine issues of material fact regarding whether (1) the UJS cleaning crew was an independent contractor, (2) Wal-Mart was negligent in failing to supervise UJS, and (3) Wal-Mart was negligent in violating health and safety regulations. Because we agree with appellant’s first point, we reverse and remand without addressing her remaining points.

           The standard of review in summary-judgment cases is well established. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

           Appellant argues that the trial court erred in granting summary judgment because an issue of material fact remained as to whether UJS was an independent contractor or had a master-servant relationship with Wal-Mart. An employer is not liable for the acts of an independent contractor, even when the independent contractor acts within the scope of his or her employment. Copeland v. Hollingsworth, 259 Ark. 603, 535 S.W.2d 815 (1976); Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W.2d 484 (1940). To determine whether an individual was acting as a servant or an independent contractor, the court should look to the totality of the circumstances. Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990). The factors that should be considered in this inquiry are: (1) the extent of control which, by the agreement, the master may exercise over the details of the work; (2) whether or not the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the person is employed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a part of the regular business of the employer; (9) whether or not the parties believe they are creating the relation of master and servant; (10) whether the principal is or is not in business. Id.; see also D.B. Griffin Warehouse v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999).

           Among these factors, Griffin and Overholt make it clear that the extent of control is the principal factor in determining the nature of the relationship. These factors, taken from the Restatement (Second) of Agency § 220, are not absolutes that preclude examination of each work relationship as a whole, but are a means of analysis. Whether the requisite right of control exists to establish an agency or a master-servant relationship is a question of fact. St. Joseph’s Reg’l Health Ctr. v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996); Razorback Cab of Fort Smith v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (1991). The burden is on the one asserting the independence of the contractor to show the true relationship of the parties. Phillips Coop. Gin Co. v. Toll, 228 Ark. 891, 311 S.W.2d 171 (1958).

           Here, an evaluation of the Griffin/Overholt factors indicates that there is evidence from which a jury could find that there was a master-servant relationship: (1) there was no written contract between Wal-Mart and UJS; (2) the same UJS crew worked at the store for over three years on the same schedule; (3) janitorial services are usually regarded as unskilled work; (4) the crew was paid on a weekly basis (instead of by the job) from Wal-Mart’s home office. See Restatement (Second) of Agency § 220, comments h, i, and j (1957). As stated earlier, the existence of a master-servant relationship is a question of fact. Because we conclude that a material issue of fact remained regarding this issue, we hold that the trial court erred in granting summary judgment to Wal-Mart.

           Reversed and remanded.

           Bird and Vaught, JJ., agree.