Kelley v. National Union Fire Ins. Co.

Elaine KELLEY and Marissa Kelley, by Elaine
Kelley, Mother and Next Friend v. NATIONAL
UNION FIRE INSURANCE COMPANY of Pittsburgh
for the Little Rock National Airport and
Floors & More, Inc.

96-999                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 17, 1997


1.   Judgment -- summary judgment -- standard of review. -- Summary judgment
     should be granted only when it is clear that there is no
     genuine issue of material fact to be litigated; the burden of
     proving that there is no genuine issue of material fact is
     upon the movant, and all proof submitted must be viewed in a
     light most favorable to the party resisting the motion; any
     doubts and inferences must be resolved against the moving
     party; when the movant makes a prima facie showing of
     entitlement, the respondent must meet proof with proof by
     showing that a genuine issue exists as to a material fact.

2.   Judgment -- summary judgment -- slip-and-fall case -- movant cannot shift
     burden to plaintiff to show genuine issue of material fact. --  In the
     slip-and-fall context, it is not appropriate to grant summary
     judgment when the movant relies solely on the plaintiff's
     statement that she did not know where the substance came from
     or how long it had been on the premises; this is because the
     burden is on the moving party to show that he or she is
     entitled to judgment, and the movant cannot shift that burden
     to the plaintiff to show a genuine issue of fact when the
     movant initially makes no offer of proof on a controverted
     issue; the movant must offer his own proof to show that
     reasonable minds could not differ regarding the conclusions
     they could draw from the facts presented and that the issue is
     appropriately resolved as a matter of law.

3.   Negligence -- slip-and-fall case -- necessary proof. -- The principles
     governing slip-and-fall cases are set against the general
     backdrop that a property owner has a duty to exercise ordinary
     care to maintain the premises in a reasonably safe condition
     for the benefit of invitees; to prevail in a slip-and-fall
     case, the appellant 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 floor for such a length of time that the appellee knew or
     reasonably should have known of its presence and failed to use
     ordinary care to remove it; the mere fact that a person slips
     and falls does not give rise to an inference of negligence;
     possible causes of a fall, as opposed to probable causes, do
     not constitute substantial evidence of negligence.

4.   Negligence -- slip-and-fall case -- proof necessary to avoid summary
     judgment. -- Mere proof that a floor is slippery will not defeat
     summary judgment; there must be proof of a substance on the
     floor such as water, grease, or wax; to avoid summary
     judgment, a plaintiff must offer some proof to contravene a
     movant's proof if the movant has shown that the substance was
     not there due to the movant's negligence and that there was no
     substantial interval between the time the substance appeared
     on the floor and the time of the accident.

5.   Judgment -- summary judgment -- appellant's testimony and sister's
     affidavit sufficient to raise material fact question concerning foreign
     substance. -- Because all doubts and inferences must be resolved
     in favor of the nonmoving party in summary-judgment
     proceedings, the supreme court viewed appellant's testimony
     and her sister's affidavit as sufficient to raise a material
     fact question concerning the presence of dust or dirt on the
     tile on which appellant slipped and fell.

6.   Judgment -- summary judgment -- plaintiff's recollection does not
     constitute offer of proof. -- The initial burden in summary
     judgment matters is on the movants, and the plaintiff's
     recollection of events does not constitute an offer of proof
     on a controverted issue.
7.   Negligence -- slip-and-fall case -- fact question raised concerning whether
     tile was swept and vacuumed on date of accident. -- In light of
     evidence that appellee airport was relying on appellee
     contractor to clean up construction dust and that appellee
     contractor routinely failed to rid the concourse of dust and
     dirt, the supreme court concluded that a fact question had
     been raised under Ark. R. Evid. 406(a), which governs the
     admissibility of evidence of the routine practice of an
     organization, concerning whether the tile on which appellant
     slipped and fell was swept and vacuumed on the date of the
     accident.

8.   Judgment -- summary judgment reversed -- matter remanded. -- Because
     there were material fact questions that needed to be resolved
     concerning the presence of dust on the tile and the failure of
     appellees to clean the premises, the supreme court reversed
     the summary judgment and remanded the matter to the trial
     court for further proceedings.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
reversed and remanded.
     Satterfield Law Firm, by: G. Randolph Satterfield, for
appellant.
     Wright, Lindsey & Jennings, by: Patrick J. Goss and Stephen R.
Lancaster, for appellee National Union Fire Insurance Company of
Pittsburgh, Pennsylvania.
     Matthews, Sanders & Sayes, by: Margaret M. Newton and Roy Gene
Sanders, for appellee Floors & More, Inc.

     Robert L. Brown, Justice.
     This is a slip-and-fall case in which the trial court granted
summary judgment in favor of appellees National Union Fire
Insurance Company of Pittsburgh (NUFI) for Little Rock National
Airport (Airport) and Floors & More, Inc.  Because we conclude that
issues of material fact remain to be decided, we reverse the
summary judgment and remand the case for further proceedings.
     Appellants Elaine Kelley and Marissa Kelley, by her mother and
next friend, filed their complaint against the Airport alleging
that injuries were suffered and damages incurred as a result of the
negligence of the Airport and Floors & More.  According to their
amended complaint, on July 19, 1994, Elaine Kelley was carrying her
daughter, Marissa, age 11 months, after they exited an airplane at
the Little Rock Airport.  While walking down the main concourse,
Elaine Kelley stepped onto ceramic tile.  Her feet went out from
under her, and she fell, causing injury to herself and to her
daughter.  Kelley alleged "[t]hat the ceramic tile in front of gate
(six) 6 was covered in construction dust, causing the floor to
become unexpectedly slippery."  She further alleged that Floors &
More had been performing construction work on the concourse. 
Kelley asserted that the Airport was negligent in failing to clean
up the dust that had been on the floor for a sufficient amount of
time for Airport personnel to know of its existence.  She prayed
for damages in the amount of $5,000 for injuries to Marissa's lip,
front teeth, and gums.  On her own behalf, she alleged injuries to
her hip, back, leg, a tooth, and "shock to her entire nervous
system" and asked for damages in excess of $50,000.
     NUFI answered on behalf of the Airport and also admitted that
a fall occurred but denied any negligence on the part of its
insured.  NUFI affirmatively pled comparative fault and filed a
cross-claim against Floors & More for contribution or indemnity. 
Floors & More answered, and it, too, admitted that a fall had
occurred but denied any negligence.  It claimed that any dust on
the floor was due to deficient maintenance by the Airport and
affirmatively pled that the condition of the floor was an open and
obvious danger.  It denied NUFI's cross-claim.
     Discovery ensued followed by motions for summary judgment. 
Floors & More moved for summary judgment on the basis that Elaine
Kelley had failed to show that any alleged dust on the floor was
the result of Floors & More's negligence.  The company relied on
Kelley's admission in her deposition that she did not personally
observe dust on the floor but was informed of the dust by another
passenger.  Floors & More further contended that even if the dust
existed, Kelley failed to prove negligence on its part because
there had not been any construction in the area for four days
before the accident, and the area had been swept and vacuumed since
that time.
     Floors & More also attached the affidavit of Dan Billingsley,
the president of the company, in support of its motion. 
Billingsley stated under oath that his crew was last present at the
airport on July 15, 1994 -- four days before the accident -- and on
that date, the crew was laying carpet at the opposite end of the
terminal from where the accident occurred.  The tile crew last
worked in that same area on July 8, 1994, according to Billingsley. 
Billingsley averred that Floors & More cleaned the area after
construction on each of those days and that the Airport maintenance
crew continually swept and vacuumed the construction area and the
remainder of the Airport.  He further stated that Floors & More did
not receive any complaints or hear of any falls from July 8, 1994
to July 19, 1994.
     NUFI filed its own motion for summary judgment and contended
that Kelley failed in her deposition to establish either the
presence of a substance on the new tile or that the substance had
been on the tile for such a length of time that the defendants
reasonably should have known of its presence.
     In response to the two summary-judgment motions, Kelley
asserted that Floors & More had admitted that there was a substance
on the floor, thereby rendering summary judgment inappropriate.  In
addition, she submitted several items of proof with her response to
establish that dust was on the tile floor and that Floors & More
had routinely failed to clean around its construction site.  Her
proof included her own deposition; the affidavit of her sister
Melinda Frint, which referred to a "gritty" substance on the tile;
Floor & More's contract with the Airport where the company agreed
to keep the work area and surrounding area clean; a letter from the
architect to Floors & More dated February 15, 199[4], regarding
cleanliness in the concourse; preconstruction meeting minutes
dated March 3, 1994, concerning the dust problem; a letter from the
architect to Floors & More dated April 28, 1994, regarding dust in
the main concourse; a photograph dated July 25, 1994, depicting a
sign that said "PARDON OUR DUST While We Improve Your Airport;" a
letter dated August 8, 1994, stating that tape and dirt remained in
the concourse; and the affidavit of Little Rock Police Officer
Richard Jordan, who averred that he was made aware by the other
Airport patrons of the slippery condition of the new tile that was
being installed.
     The trial court conducted a hearing on the motions.  At the
conclusion of the hearing, the trial court observed that there was
no evidence of what caused Kelley to fall and that for a jury to
decide in her favor would be commensurate with imposing strict
liability.  An order of summary judgment was subsequently entered.

                       I. Summary Judgment
     Kelley argues on appeal that the trial court erred in granting
summary judgment and in concluding that there was no evidence of
the cause of her accident.  Our standards for reviewing summary
judgments and slip-and-fall cases have been often stated.  Summary
judgment should be granted only when it is clear that there is no
genuine issue of material fact to be litigated.  Brumley v. Naples,
320 Ark. 310, 896 S.W.2d 860 (1995); Hickson v. Saig, 309 Ark. 231,
828 S.W.2d 840 (1992).  The burden of proving that there is no
genuine issue of material fact is upon the movant -- in this case
NUFI and Floors & More -- and all proof submitted must be viewed in
a light most favorable to the party resisting the motion.  Wyatt v.
St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505
(1994).  Any doubts and inferences must be resolved against the
moving party.  Brumley v. Naples, supra; Brunt v. Food 4 Less,
Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).  When the movant makes
a prima facie showing of entitlement, the respondent -- here,
Kelley -- must meet proof with proof by showing that a genuine
issue exists as to a material fact.  Sanders v. Banks, 309 Ark.
375, 830 S.W.2d 861 (1992).
     In the slip-and-fall context, we have held that it is not
appropriate to grant summary judgment when the movant relies solely
on the plaintiff's statement that she did not know where the
substance came from or how long it had been on the premises. 
Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980).  We reasoned in Collyard that this is because the
burden is on the moving party to show that he or she is entitled to
judgment and that the movant cannot shift that burden to the
plaintiff to show a genuine issue of fact, when the movant
initially makes no offer of proof on a controverted issue.  Id. 
The movant must offer his own proof to show that reasonable minds
could not differ as to the conclusions they could draw from the
facts presented and that the issue is appropriately resolved as a
matter of law.  See, e.g., Tyson Foods, Inc. v. Adams, 326 Ark.
300, 930 S.W.2d 374 (1996); Brunt v. Food 4 Less, Inc., supra.
     Over the years, this court has frequently stated the
principles that govern slip-and-fall cases.  Those principles are
set against the general backdrop that a property owner has a duty
to exercise ordinary care to maintain the premises in a reasonably
safe condition for the benefit of invitees.  See Black v. Wal-Mart
Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994); Sanders v. Banks,
supra.  We have said:
     In order to prevail in a slip and fall case, the
     appellant must show either (1) the presence of a
     substance upon the premises was the result of the
     defendant's negligence, or (2) the substance had been on
     the floor for such a length of time that the appellee
     knew or reasonably should have known of its presence and
     failed to use ordinary care to remove it.  Dunklin, 307
     Ark. 12, 817 S.W.2d 873; Safeway Stores, Inc. v. Willmon,
     289 Ark. 14, 708 S.W.2d 623 (1986); see also AMI Civil
     3rd, 1105.  The mere fact that a person slips and falls
     does not give rise to an inference of negligence.  J.M.
     Mulligan's Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1990).  Possible causes of a fall, as opposed
     to probable causes, do not constitute substantial
     evidence of negligence.  Willmon, 289 Ark. 14, 708 S.W.2d 623.
Brunt v. Food 4 Less, Inc., 318 Ark. at 430, 885 S.W.2d  at 896,
quoting Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991).  Mere proof that a floor is slippery will not defeat
summary judgment; there must be proof of a substance on the floor
such as water, grease, or wax.  See Thompson v. American Drug
Stores, Inc., 326 Ark. 536, 932 S.W.2d 333 (1996); Black v. Wal-
Mart Stores, Inc., supra.  Moreover, to avoid summary judgment, a
plaintiff must offer some proof to contravene a movant's proof, if
the movant has shown that the substance was not there due to the
movant's negligence and that there was no substantial interval
between the time the substance appeared on the floor and the time
of the accident.  See Sanders v. Banks, supra; Moore v. Willis, 244
Ark. 614, 426 S.W.2d 372 (1968).

                      II. Foreign Substance
     We first turn to the issue of the presence of some foreign
substance on the tile.  Both appellees present Kelley's deposition
as proof that she did not see what caused her fall.  The opposing
proof offered by Kelley was that she observed dust on a bystander's
fingertips after her fall.  The bystander was assisting Kelley
after she fell and wiped the tile with her hand and showed the dust
on her fingertips to Kelley.  Added to this evidence was the
affidavit of Kelley's sister, Melinda Frint, who averred that she
and Kelley walked from concrete in the main concourse "onto a
gritty tiled area" where her sister slipped and fell "on the gritty
surface."  Because all doubts and inferences must be resolved in
favor of the non-moving party in summary-judgment proceedings, we
view Kelley's testimony and Frint's affidavit as sufficient to
raise a material fact question concerning the presence of dust or
dirt on the tile.  Brumley v. Naples, supra.

                         III. Negligence
     We next must address how the dust got on the tile and how long
it had been there.  Again, both appellees offer Kelley's deposition
as proof that she did not know where the dust came from or its
duration.  The initial burden in summary judgment matters, however,
is on the movants, and the plaintiff's recollection of events does
not constitute an offer of proof on a controverted issue.  See
Collyard v. American Home Assurance Co., supra.  The only other
proof presented by both NUFI and Floors & More that they were not
responsible for the alleged dust on the tile is the affidavit of
Dan Billingsley.  That affidavit included a statement that Floors
& More cleaned up after each construction day and the Airport
maintenance crew continually swept and vacuumed the construction
area and the terminal.
     With respect to NUFI, we question whether the averment by
Billingsley, as president of Floors & More, is sufficient for NUFI
to shift the burden of proof to Kelley to present evidence
disproving that the tile was clean.  But, furthermore, it appears
that an issue of material fact remains to be resolved on whether
either party was keeping the concourse clear of construction dust. 
For example, the preconstruction minutes of a meeting on March 3,
1994, involving the architect, airline representatives, Airport
officials, and Dan Billingsley reflect that there was discussion
about "a lot of dust" as a result of the tile removal, and it was
necessary, as a result, to remove large areas of tile at night. 
Remedies for containing the dust such as dust barriers were
discussed.  This meeting was preceded by a letter from architect
Hrand Du Valian to Dan Billingsley dated February 15, 199[4], where
Du Valian complained that Floors & More was not keeping the
concourse clean as required by contract.  Then on April 28, 1994,
Du Valian wrote another letter to Dan Billingsley where he referred
to a complaint filed with the Airport and the State Health
Department "regarding the dust which your firm allowed to openly
filter through the concourse" and added:
     As we have discussed on numerous occasions, during two
     preconstruction meetings, via phone conversations and
     letters (not to mention warnings by the airport
     administration and maintenance departments) as stated on
     Sheet T-1 of the contract documents "... contractor shall
     nightly erect an airtight dust partition of plastic
     sheeting ...".  I do not know how to state this more
     plainly.  This is a very important issue.  To avoid a
     litigious situation (that as you can now plainly
     understand, may very well arise because of the non-
     compliance on the part of your firm to all of the
     requirements of the contract documents) please make a
     renewed effort and inform each new worker that compliance
     with the contract documents is a must.  (Italics ours.)
     Next, after the Kelley accident, Du Valian wrote the following
to Dan Billingsley on August 8, 1994:
     Bill Flowers [acting airport manager] indicated to me
     yesterday, that he was very disturbed by the condition of
     the tile at the concourse.  For a long time there has
     been tape, and dirt from construction on the tile
     throughout the concourse.  This creates a very dirty
     atmosphere for airport patrons.  He has requested that
     this be cleaned by Monday 8/15/94.  If this is not taken
     care on (sic) by your crews by Monday morning he will
     have his maintenance department clean the floor and
     charge you for their time.  Please notify me how you want
     this issue resolved.  (Emphasis ours.)
     There obviously was a history of a dust problem at the Airport
in conjunction with the replacement of the concourse tile.  Rule
406(a) of the Arkansas Rules of Evidence provides:
     Evidence of the habit of a person or of the routine
     practice of an organization, whether corroborated or not
     and regardless of the presence of eyewitnesses, is
     relevant to prove that the conduct of the person or
     organization on a particular occasion was in conformity
     with the habit or routine practice.
In light of evidence that the Airport was relying on Floors & More
to clean up the dust and that Floors and More routinely failed to
rid the concourse of dust and dirt, we conclude that a fact
question has been raised under Ark. R. Evid. 406(a) as to whether
the tile was swept and vacuumed on the date of the accident -- July
19, 1994.  See 1 McCormick on Evidence  195, at 828-30 (4th ed.
1992).
     Because there are material fact questions which need to be
resolved concerning the presence of dust on the tile and the
failure of the appellees to clean the premises, we reverse the
summary judgment and remand this matter to the trial court for
further proceedings.
     Reversed and remanded.