Wilson v. J. Wade Quinn Co.,

Floyd WILSON v. J. WADE QUINN COMPANY, INC.

97-344                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 23, 1997


1.   Judgment -- summary judgment -- when granted. -- Summary
     judgment should be granted only when it is clear that there is
     no genuine issue of material fact to be litigated; a summary
     judgment should not be granted when reasonable minds could
     differ as to the conclusions they could draw from the facts
     presented; the burden of proving there is no genuine issue of
     material fact is upon the movant, and all proof submitted must
     be viewed favorably 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 a genuine issue of material fact.  

2.   Negligence -- property owners -- duty of care owed invitees. -
     - A property owner has a duty to exercise ordinary care to
     maintain the premises in a reasonably safe condition for the
     benefit of invitees.

3.   Negligence -- slip-and-fall case -- proof needed to prevail. -
     - In order 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 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; the mere fact 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.   Judgment -- genuine issue of material fact remained -- summary
     judgment reversed. -- As all doubts and inferences must be
     resolved in favor of the nonmoving party, appellant's
     affidavit was sufficient to raise a material issue of fact;
     the fact that affidavits of appellant and appellee conflicted
     as to whether the substance had been on the premises for such
     a length of time that the store employees knew or reasonably
     should have known of its presence and failed to use ordinary
     care to remove it left a genuine issue of material fact to be
     decided; the trial court's grant of summary judgment was
     reversed and the case remanded. 


     Appeal from Craighead Circuit Court; John Fogleman, Judge;
reversed and remanded.
     W. Scott Davidson, for appellant.
     Snellgrove, Laser, Langley , Lovett, & Culpepper, by:  P.
Sanders Huckabee, for appellee.
     David Newbern, Justice.
     This is a slip-and-fall case.  Floyd Wilson alleged he fell
down in a Jr. Foods Store ("the store"), operated by J. Wade Quinn
Company, Inc. ("Quinn Co.").  He alleged that he slipped on a
foreign substance on the floor, fell into a soft-drink display, and
sustained injuries.  We are asked to review a summary judgment in
favor of Quinn Co.  We hold that summary judgment was improperly
granted as conflicting affidavits left a genuine issue of material
fact.  Ark. R. Civ. Pro. 56(c).
     Mr. Wilson alleged his fall was due to slipping on a liquid
substance and mashed food particles.  In support of its summary-
judgment motion, Quinn Co. produced the affidavit of Christopher
Ramsey, the storeþs assistant manager.  Mr. Ramsey stated that,
after hearing a noise near the soft-drink display, he went to
investigate.  He did not see anyone there; however, Mr. Wilson came
out of the restroom and informed Mr. Ramsey that he fell on a
french fry but was fine.  He inspected the area where Mr. Wilson
allegedly fell, but he did not see and was not made aware of a
french fry, foreign substance, or anything slippery in the area. 
He said that, to the best of his knowledge, a store employee did
not place any foreign matter in or near the area where Mr. Wilson
fell.  No employee had been made aware of the existence of any
foreign matter in this area nor had any employee been asked to
remove any such matter.  Mr. Ramsey said his duties included
checking the floor for food, spilled drinks, debris, and other
foreign matter.  Employees are trained to watch for and clean up
any such matters on the floor, and the floors are cleaned on an
hourly basis.  He said that, approximately thirty minutes before
Mr. Wilson fell, the area where he fell was cleaned and that the
store did not serve french fries on the day in question.
     In his counteraffidavit Mr. Wilson stated that there was a
þdirty looking liquidþ mixed with food particles on the floor that
þlooked like it had been walked through for quite some time.þ  The
substance spread over nearly four feet, approximately the width of
the aisle.  After being helped up by an unidentified person, he
went into the bathroom to stop his chin from bleeding.  Mr. Wilson
stated that when he left the restroom, a store employee asked him
if he would be alright, and that the employee then turned to
another employee and said, þI thought you cleaned that up.þ  Mr.
Wilson also stated that the store employees had a clear view of the
aisles from their usual position at the cash register behind the
counter.  He said that he was not warned of a substance on the
floor, and there were no barriers or signs preventing him from
walking down the aisle where the substance was allegedly on the
floor.  He was using crutches at the time of the fall and the
employees were present when he wiped the substance from the floor
off of his crutch.  
     Summary judgment should be granted only when it is clear that
there is no genuine issue of material fact to be litigated.  Kelley
v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660
(1997).  A summary judgment should not be granted when reasonable
minds could differ as to the conclusions they could draw from the
facts presented.  Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).  The burden of proving there is no genuine issue
of material fact is upon the movant, and all proof submitted must
be viewed favorably to the party resisting the motion.  Wyatt v.
St. Paul Fire & Marine Ins., 315 Ark. 547, 868 S.W.2d 505 (1994). 
Any doubts and inferences must be resolved against the moving
party.  Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997).  When the movant makes a prima facie showing of
entitlement, the respondent must meet proof with proof by showing
a genuine issue of material fact.  Brunt v. Food 4 Less, Inc., 318
Ark. 427, 885 S.W.2d 894 (1994). 
     A property owner has a duty to exercise ordinary care to
maintain the premises in a reasonably safe condition for the
benefit of invitees.  Kelley v. National Union Fire Ins. Co., 327
Ark. at 335, 937 S.W.2d  at 663; Black v. Wal-Mart Stores, Inc., 316
Ark. 418, 872 S.W.2d 56 (1994).  

     In order 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
     defendantþs 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. 
     The mere fact 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.

Kelley v. National Union Fire Ins. Co., 327 Ark. at 335, 937 S.W.2d 
at 663 (citations omitted).  
     Mr. Wilson's statement that the dirty water and mashed food
particles looked as if they had been walked through for some time
and that they had spread over a wide floor area raises the specter
of a foreign substance having been present long enough that store
employees should have known of its presence.  In addition, his
statement that one employee remarked to another that he thought
"that" had been cleaned up adds considerable weight to the possible
conclusion that the store was negligent by virtue of knowledge of
the presence of the substance and failure to act to remove it.  
     Quinn Co. argues the statement alleged to have been made by
its employee could have referred to an employee mentioning to
another that the floor should have been cleaned after the accident. 
While that is a possibility, so is the possibility that it meant
before the accident occurred.  At any rate, the matter is one for
a fact-finder.
     Unlike cases, such as Mankey v. Wal-Mart Stores, Inc., 314
Ark. 14, 858 S.W.2d 85 (1993), and Sanders v. Banks, 309 Ark. 375,
830 S.W.2d 861, in which we have affirmed a summary judgment or
directed verdict due to lack of a showing as to how long the
substance was on the floor prior to the fall, the evidence here is
such that a fact finder could determine that there was a foreign
substance on the store's floor and that it was known to employees
but not removed or that it had been present for a time sufficient
to require its notice and removal by employees.  
     As all doubts and inferences must be resolved in favor of the
nonmoving party, Mr. Wilsonþs affidavit was sufficient to raise a
material issue of fact.  See Kelley v. National Union Fire Ins.
Co., 327 Ark. at 336, 937 S.W.2d  at 663.  The affidavits conflict
as to whether the substance had been on the premises for such a
length of time that the store employees knew or reasonably should
have known of its presence and failed to use ordinary care to
remove it.  A genuine issue of material fact remains to be decided. 

     Reversed and remanded.