Malaney v. Hannaford Brothers Co.
Annotate this Case
Malaney v. Hannaford Brothers Co. (2002-316); 177 Vt. 123; 861 A.2d 1069
2004 VT 76
[Filed 20-Aug-2004]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2004 VT 76
No. 2002-316
Paulette Malaney Supreme Court
On Appeal from
v. Chittenden Superior Court
Hannaford Brothers Company November Term, 2003
Mary Miles Teachout, J.
Thomas C. Nuovo of Bauer, Anderson & Gravel, Burlington, for
Plaintiff-Appellant.
David Bond of Downs Rachlin Martin PLLC, Burlington for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.
¶ 1. DOOLEY, J. Plaintiff Paulette Malaney, who sued defendant
Hannaford Brothers Company after she slipped and fell on a grape in the
company's grocery store, appeals a jury verdict in favor of defendant. She
argues that she was entitled to a directed verdict on the issue of
liability, and that the trial court's instructions to the jury were
incomplete and erroneous in several respects. We conclude that the trial
court committed prejudicial error (1) by endorsing in front of the jury
defendant's misleading statement of the law of premises liability during
its closing argument, and (2) by giving the jury incomplete instructions on
defendant's duty of care. Accordingly, we reverse the jury verdict, and
remand the matter for further proceedings.
¶ 2. The accident that led to plaintiff's suit occurred on
February 13, 2000. Plaintiff was in the check-out line with her fiancé
when she remembered one last item that she wanted to purchase. As she
passed through the store's produce section to retrieve the item, she
slipped on a grape and fell, dislocating her elbow. In October 2000,
plaintiff sued defendant, alleging that store employees were negligent in
failing to keep the floor free of debris. A two-day jury trial was held in
May 2002, resulting in a verdict for defendant. Plaintiff appeals the
judgment resulting from that verdict.
¶ 3. Plaintiff first argues that she was entitled to judgment as a
matter of law because defendant failed to present any evidence that it took
reasonable steps to protect her from the foreseeable dangers associated
with selling grapes from a self-service display counter. We disagree.
¶ 4. The parties presented conflicting evidence concerning the
extent to which defendant took reasonable measures to protect its customers
from potentially hazardous conditions caused by the grape display.
Plaintiff elicited evidence indicating that defendant was generally aware
of the hazards posed by grapes and had adopted specific procedures to
address the hazard, including some that had not been followed. For
example, one of defendant's safety bulletins emphasized the importance of
using large runners in many areas of the produce department, particularly
in front of grapes displays. Plaintiff presented evidence that no such
runner was in place at the time she slipped near the grape display.
¶ 5. On the other hand, the store's sweep logs, which were
introduced into evidence, indicated that someone had swept near the floral
section, close to where plaintiff fell, approximately three hours before
the accident. The sweep logs also confirmed the testimony of a store
employee that he had conducted spot mops of the produce section
approximately one and one-half hours and again five minutes before the
accident. The employee testified, however, that although he visually
checked the area around the grape display for debris, he was unable at all
times to see the floor because of the large number of carts and people in
the area.
¶ 6. Both plaintiff and defendant sought directed verdicts,
plaintiff arguing that the evidence unequivocally demonstrated defendant's
negligence in failing to protect her from a known hazardous condition, and
defendant arguing that plaintiff's failure to show how long the grape she
slipped on had been on the floor entitled the store to judgment as a matter
of law. The trial court denied both motions, ruling that plaintiff had
presented sufficient evidence to create a jury question as to whether the
steps taken by the store were reasonable given the hazard posed by the
grape display, and that defendant had presented evidence from which the
jury could have concluded that the store had taken reasonable steps to
protect its customers.
¶ 7. In support of her view that she was entitled to a directed
verdict on liability, plaintiff contends that Vermont law required
defendant to be extra vigilant in protecting its customers from the obvious
and known hazard posed by the grape display, particularly on the day she
was injured, given that the store was crowded and grapes were on sale,
resulting in customers handling hundreds of pounds of grapes. In
plaintiff's view, defendant failed to present evidence to demonstrate that
the store exhibited the extra vigilance required under these circumstances.
Viewing the evidence cited above most favorably to defendant, however, we
conclude that the trial court acted well within its discretion in leaving
it for the jury to determine whether, considering all of the circumstances,
defendant had taken reasonable steps to address the hazard posed by the
grape display. See Brueckner v. Norwich Univ., 169 Vt. 118, 122, 730 A.2d 1086, 1090 (1999) (judgment as matter of law may be granted when, viewing
evidence most favorably to nonmoving party, there is insufficient
evidentiary basis for reasonable jury to find for nonmoving party).
¶ 8. Next, plaintiff argues that the trial court committed
reversible error both by refusing to sustain plaintiff's objection to
defendant's incorrect statement of the law made during its closing
argument, and by failing to give more specific instructions on the duty
owed by defendant under the circumstances of this case. These arguments
require us to examine our law on premises liability with respect to retail
establishments. Under traditional negligence law, the mere existence of a
defective condition in a store - including a transitory condition such as a
spill - does not make the store liable for an injury caused by the
condition unless store employees knew or should have known of the
condition. See D. Zupanec, Annotation, Store or Business Premises
Slip-And-Fall: Modern Status of Rules Requiring Showing of Notice of
Proprietor of Transitory Interior Condition Allegedly Causing Plaintiff's
Fall, 85 A.L.R.3d 1000, 1003 (1978). Hence, if a plaintiff is unable to
prove that the store or its employees created, or otherwise had actual
knowledge of, the dangerous condition, the plaintiff must demonstrate "that
the condition existed for such a length of time that in the exercise of
reasonable care the proprietor should have known of the condition." Id. at
1004.
¶ 9. This Court followed that traditional rule in Dooley v. Economy
Store, Inc., 109 Vt. 138, 194 A. 375 (1937). There, a customer won a jury
verdict after slipping on an allegedly defective step in a retail store and
injuring herself. On appeal, we held that the store could not be liable
because of the absence of any evidence showing either that the store
actually knew of the defect or that the defect had existed long enough to
charge the store with constructive notice of the danger. Id. at 142, 194 A. at 377 ("In order to impose liability for injury to an invitee by reason
of the dangerous condition of the premises the condition must have been
known to the owner or have existed for such time that it was his duty to
know it.").
¶ 10. With the advent of self-service marketing operations in
retail stores, however, courts across the country, including this Court,
began to modify premises liability law in various ways to reduce or
eliminate plaintiffs' burden of proving that the store had actual or
constructive notice of the defective condition. See Jackson v. K-mart
Corp., 840 P.2d 463, 467-70 (Kan. 1992) (noting broad trend toward
modifying premises liability law in retail establishments and discussing
various ways in which traditional rule has been altered); see also Owens v.
Publix Supermarkets, Inc., 802 So. 2d 315, 324-29 (Fla. 2001) (superseded
by statute) (noting "modern jurisprudential trend of departing from the
traditional rule of premises liability when a plaintiff slips and falls on
a transitory foreign substance," and discussing various approaches taken by
different courts); Cobb v. Skaggs Companies, 661 P.2d 73, 76 (Okla. Ct.
App. 1982) (noting that "self-service marketing method has spawned a
growing trend of cases that dispense with the traditional notice
requirement in such business settings as discount department stores,
restaurants, and supermarkets"); D. Zupanec, supra, 85 A.L.R.3d, at 1004-06
(citing elimination of requirement that injured customer prove store
owner's actual or constructive knowledge of dangerous transitory condition
as example of broad trend toward liberalization of premises liability law).
In modifying the traditional rule, these courts reasoned that while
self-service operations give store customers additional freedom to browse
and select the merchandise they desire, they also pose foreseeable hazards
to those customers, who are generally less careful than store employees in
handling the merchandise. See D. Zupanec, supra, 85 A.L.R.3d, at 1004-05
n.15. Essentially, the courts have recognized that stores engaging in
foreseeably hazardous self-service operations may be deemed to have
constructive notice of those conditions when they result in injury. Id.;
see Cobb, 661 P.2d at 76 (because self-service marketing practices create
dangerous condition, store is deemed to have notice of condition).
¶ 11. Early on, in Forcier v. Grand Union Stores, Inc., 128 Vt.
389, 264 A.2d 796 (1970), this Court joined the trend toward modifying
premises liability law in the context of retail stores displaying and
selling goods through self-service operations. In that case, a customer
who injured herself after slipping on a banana in a grocery store won a
jury verdict, and the store appealed, arguing, in relevant part, that it
was entitled to a directed verdict because the customer had failed to
establish the store's actual or constructive notice of the existence of the
banana on the floor. We rejected the store's argument and affirmed the
jury verdict, stating that the customer had made out a prima facie case of
the store's negligence, and that it was for the jury to determine whether
the store had constructive notice of the dangerous condition that led to
the customer's injury. Id. at 395, 264 A.2d at 800. In so ruling, we
emphasized that (1) the store had a duty of "active care" to protect its
invitees from foreseeable risks; (2) the store's modern self-service
operation imposed a corresponding duty upon the store to use reasonable
measures to anticipate and address the risks associated with the operation;
and (3) the store's duty increased in degree proportionate to the
foreseeable risks of the operation. Id. at 393-94, 264 A.2d at 799.
¶ 12. Because evidence of the presence of the banana and other
debris on the floor was sufficient for the plaintiff in Forcier to make out
a prima facie case of negligence, it "was incumbent upon [the store] to
produce rebutting evidence if it wished to show the facts were not as
claimed by" the customer. Id. at 395, 264 A.2d at 800. Rather than
introducing evidence of precautions it had taken to address the foreseeable
risk of debris on the floor from self-service bins, the store merely
presented testimony that store employees were unaware of the presence of
the banana on the floor. Accordingly, we held that the jury could have
reasonably concluded that the store had not met its duty of active care to
protect its customers from foreseeable risks. Id. at 394, 264 A.2d at 800.
In support of this holding, we relied upon the landmark case of Wollerman
v. Grand Union Stores, Inc., 221 A.2d 513 (N.J. 1966), wherein the New
Jersey Supreme Court explained that it would be "'unjust to saddle the
plaintiff with the burden of isolating the precise failure'" that caused
the dangerous condition to exist. Forcier, 128 Vt. at 395, 264 A.2d at 800
(quoting Wollerman, 221 A.2d at 515).
¶ 13. In a later case, we explicitly recognized that
Forcier modified Dooley in holding that it is the store owner's
duty of active care to make sure that its premises are in safe and
suitable condition for its customers. In Forcier, the business
practice of using a self-serve method to sell loose produce gave
rise to an increased duty of care on the defendant's part to
remove floor debris because such debris is to be anticipated in a
self-service operation. The resultant hazard to business invitees
constituted a risk of harm within the reasonable foresight of the
defendant.
Debus v. Grand Union Stores of Vermont, 159 Vt. 537, 545-46, 621 A.2d 1288,
1294 (1993). The United States Court of Appeals for the Second Circuit
also recognized the change in Vermont's premises liability law resulting
from our decision in Forcier, stating that the "business practice"
exception established in Forcier and broadened in Debus relieves plaintiffs
of having to prove that a retail business owner had notice of a foreseeably
dangerous condition caused by self-service operations. See Randall v.
K-Mart Corp., 150 F.3d 210, 213 (2d Cir. 1998). In short, under Vermont
law, the existence of a reasonably foreseeable dangerous condition created
by self-service operations effectively notifies the store owner of the
dangerous condition, making the critical issue whether the store owner
responded reasonably to protect its customers from the danger.
¶ 14. Having examined Vermont law on premises liability in retail
stores with self-service operations, we now return to plaintiff's argument
that the trial court committed reversible error (1) by refusing to sustain
plaintiff's objection to defendant's incorrect statement of the law made to
the jury during closing argument, and (2) by failing to give more specific
instructions to the jury on the applicable law. At the charge conference,
plaintiff asked the trial court to instruct the jury using language from
Forcier and other cases concerning premises liability in retail stores with
self-service operations. Plaintiff sought a charge instructing, among
other things, that defendant had the burden to show what steps it had taken
to address the foreseeable hazard caused by selling grapes in open bins.
It is not entirely clear, however, from plaintiff's requests and objections
concerning the instructions whether she viewed defendant's burden as one of
production or of proof. Indeed, she appeared to acquiesce in the trial
court's ruling that defendant's burden was merely one of producing evidence
that it had taken reasonable steps to address a known hazard. In rejecting
plaintiff's request for a burden-shifting instruction, the court explained
that it was for the court, not the jury, to determine whether defendant had
met its burden of production. As for plaintiff's request for more detailed
instructions, the court stated that, as "a matter of judicial style," it
preferred to give a broad, general statement of the law and leave it for
the attorneys, during their closing arguments, to link the law to the facts
of the case.
¶ 15. The closing arguments preceded the jury instructions.
Defendant began its closing argument by emphasizing that plaintiff had
failed to introduce any evidence to show how long the grape she slipped on
had been on the floor. Defendant asserted that unless she could show that
the grape had been on the floor long enough so that the store should have
known it was there, she could not prevail because she could not meet her
burden of proof as the plaintiff. Plaintiff objected, arguing that
defendant had misstated the law. The trial court denied the objection,
stating in front of the jury that defendant's argument was consistent with
the standard of the law.
¶ 16. Following arguments, the trial court gave the following
instruction on negligence to the jury:
In order to prove her case for negligence, the Plaintiff must
prove by a preponderance of the evidence that the Defendant was
negligent and that the Defendant's negligence was the proximate
cause of the Plaintiff's injuries. The owner of a business, such
as Hannafords, is not the insurer of the safety of its customers,
and is not automatically responsible if a customer is injured
while on the business premises. Nonetheless, a business owner has
a duty of active care to make sure that its premises are in a safe
and suitable condition for its customers. This means that a
business owner has a duty to use reasonable care to provide
facilities that do not expose customers to unnecessary or
unreasonable risks of harm.
To prove her claim for negligence, Plaintiff must prove to
you, by a preponderance of the evidence, each of the following
elements:
(1) that Defendant knew or should have known that on the day
of the incident, there was a risk of an unsafe condition on the
floor near the produce department;
(2) that Defendant failed to exercise reasonable care in
preventing the condition or allowing it to remain;
(3) that Plaintiff's injury was in fact substantially caused
by the alleged unsafe condition
The court then discussed in more detail the third element - proximate cause
- before stating that if plaintiff failed to prove any of these elements by
a preponderance of the evidence, the jury must enter a verdict for
defendant. Plaintiff renewed her objections following the charge.
¶ 17. Plaintiff argues that the court first committed error by
endorsing the misstatement of law by defendant's counsel that she had the
responsibility to prove how long the grape had been on the floor. With
regard to the instructions, she alleges two errors: (1) the trial court
failed to give the jury more specific and complete instructions on the
heightened duty of care associated with engaging in a known hazardous
operation, such as selling grapes in self-service open bins, as required by
Forcier; and (2) the court should have instructed the jury that once
plaintiff made out a prima facie case of negligence, defendant, not
plaintiff, had the burden of proving that it had taken reasonable steps to
prevent the foreseeable harm posed by the grape display.
¶ 18. Regarding plaintiff's first argument, we agree that the trial
court committed reversible error by suggesting to the jury that, under
Vermont law, plaintiff could not prevail unless she proved how long the
grape she slipped on had been on the floor. Plaintiff certainly could have
presented evidence of how long the grape had been on the floor to bolster
her negligence claim, but such evidence was not essential to the claim.
Indeed, the modification of premises liability law in slip-and-fall cases
involving self-service retail stores - as endorsed in Forcier - was aimed
largely at relieving plaintiffs of the nearly insurmountable burden of
proving exactly what defendant's counsel, with the trial court's approval,
told the jury plaintiff had to prove here - how long the dangerous
condition had existed. See Owens, 802 So. 2d at 325 (placing burden on
customer to establish constructive notice of dangerous condition is unfair
because stores are in control of premises and evidence upon which notice is
based); Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 434-35 (Ky. 2003)
(placing virtually insurmountable burden on customers to show how long
spilled substance was on floor of retail establishment is inconsistent with
proposition that business owner has duty to keep premises in reasonably
safe condition for use of customers).
¶ 19. Forcier makes it clear that, under Vermont law, a jury may
find a self-service store liable in a slip-and-fall case based on the
store's failure to take reasonable steps to address a foreseeable hazard -
even if the plaintiff is unable to demonstrate precisely how long the
dangerous condition existed. See 128 Vt. 393-95, 264 A.2d at 799-800.
This point is made explicit in Wollerman, 221 A.2d at 515 ("it would be
unjust to saddle the plaintiff with the burden of isolating the precise
failure"), the case we relied upon in Forcier, and in many decisions from
other states. See, e.g., Cobb, 661 P.2d at 76 (notwithstanding plaintiff's
inability to show defendant's actual or constructive knowledge of hazardous
condition caused by grapes on floor, jury could infer that store failed to
take reasonable steps to address known hazard); Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292, 295 (Tex. 1983) (even in absence of evidence showing
store's actual or constructive knowledge of spilled substance, jury could
find store liable based on evidence tending to show store's failure to take
reasonable steps to protect customers from known hazard posed by
self-service grape display); cf Ortega v. Kmart Corp., 36 P.3d 11, 13-14
(Cal. 2001) (evidence of store's failure to inspect premises within
reasonable period of time is sufficient to allow jury to infer that
dangerous condition was present long enough for store to have opportunity
to discover and remedy condition); Dumont v. Shaw's Supermarkets, Inc., 664 A.2d 846, 848 (Me. 1995) (plaintiff need not prove that store had notice of
specific condition giving rise to plaintiff's injury as long as plaintiff
can establish that store was aware of recurrence of hazardous condition on
premises). Of course, as we explain below, plaintiff retains the ultimate
burden of proving that defendant was negligent in failing to respond
adequately to a foreseeable hazard; however, that burden does not
necessarily entail proving how long the hazardous condition existed.
¶ 20. A party's misstatement of the law during closing argument
does not generally require reversal of a jury verdict as long as the trial
court corrects the misstatement during its charge to the jury, see People
v. Buckley, 668 N.E.2d 1082, 1088 (Ill. App. Ct. 1996); State v. Smith, 717 So. 2d 1209, 1215 (La. Ct. App. 1998), but that is not what happened here.
To the contrary, rather than correcting defendant's misstatement of the
law, the trial court endorsed it, thereby effectively supplementing its
later charge with an erroneous interpretation of the law that plainly could
have impacted the jury's verdict adverse to plaintiff's position. Its
general charge did nothing to correct its ruling that the argument properly
stated the law. Accordingly, a new trial is required. Cf. People v.
Anderson, 991 P.2d 319, 321 (Colo. Ct. App. 1999) (by not informing jury,
upon objection, that prosecutor's interpretation of law is incorrect, court
improperly permits jury to adopt prosecutor's version of law; in such
circumstances, reversal is required unless error is harmless); Master v.
State, 702 P.2d 375, 381 (Okla. Crim. App. 1985) (trial judge has duty to
instruct jury on point of law "if it becomes apparent that counsel in the
course of argument may have confused the jury on the law").
¶ 21. Moreover, we agree with plaintiff's first challenge to the
jury instructions - that they were inadequate and incomplete with respect
to our law of premises liability in stores with self-service operations.
The trial court has the "duty to instruct the jury on all issues essential
to the case," including "the standard of care that applies in a negligence
action." Coll v. Johnson, 161 Vt. 163, 164, 636 A.2d 336, 338 (1993); see
Dumont, 664 A.2d at 847 (party is entitled to jury instruction that is
correct statement of law supported by facts, as long as instruction is not
misleading and has not already been covered by charge). While the trial
court has some discretion regarding the degree to which it elects to
elaborate on the points charged, see Currier v. Letourneau, 135 Vt. 196,
204, 373 A.2d 521, 527 (1977) ("the court is not required to make every
comment that conceivably could be made on the issues and evidence"), the
charge as a whole must impart the spirit of the law so that the jury is not
misled.
¶ 22. We recognize that the trial court's approach - to state
generally the law of negligence and leave it to the parties to argue the
application of the facts to the law - is often appropriate. See Wakefield
v. Tygate Motel Corp., 161 Vt. 395, 398-99, 640 A.2d 981, 982-83 (1994);
Deyo v. Kinley, 152 Vt. 196, 206-09, 565 A.2d 1286, 1292-94 (1989). We
cannot hold that this approach is proper in this case after Forcier,
however. The decision holds specifically that a self-service method of
selling carries "with it a corresponding duty of care . . . to use
reasonable measures to discover and remove from the floor debris which may
have been dropped or knocked to the floor" and places "upon the store
operator the need for greater vigilance if he is to meet the standard of
care required under the circumstances." Forcier, 128 Vt. at 394, 264 A.2d
at 799. Where the law imposes a particular duty in a negligence case, the
jury instructions must describe this duty to the jury. See Roberts v.
State, 147 Vt. 160, 166-67, 514 A.2d 694, 697-98 (1986); Provost v. Miller,
144 Vt. 67, 70, 473 A.2d 1162, 1164 (1984); Dawley's Adm'r v. Nelson, 115
Vt. 461, 463, 63 A.2d 866, 868 (1949); see also Green v. Downs, 265 N.E.2d 68, 70 (N.Y. 1970) ("'In cases where the law has detailed the duty resting
on a reasonably prudent man, general instructions are inadequate'")
(quoting Barnevo v. Munson S. S. Line, 147 N.E. 75, 77 (N.Y. 1925)). Here,
the general negligence instruction did not describe defendant's duty as set
out in Forcier. While we recognize that the plaintiff was free to argue
the duty described in Forcier, there is no requirement that the jury accept
that argument when it comes from a party rather than the court.
¶ 23. Finally, we reject plaintiff's second claim that the trial
court erred by refusing to instruct the jury that defendant had the burden
of proving that it had taken reasonable steps to address the foreseeable
hazard posed by the grape display. We conclude, as most other courts have,
that the defendant's burden in such cases is one of production, and that
the ultimate burden of persuasion to prove negligence - in other words,
that the defendant failed to take reasonable steps to address a known
hazard - remains with the plaintiff. See Nisivoccia v. Glass Gardens,
Inc., 818 A.2d 314, 317 (N.J. 2003) (ultimate burden of persuasion remains
with plaintiff to show store was negligent). Further, we conclude that it
is for the trial court, in considering the parties' motions for directed
verdict, to determine whether the defendant has met its burden of
production, and that the court should not instruct the jury on any
burden-shifting mechanism. See V.R.E. 301(c)(3) (court must not instruct
on presumption of negligence when defendant has met burden of production);
accord Cooper v. Burnor, 170 Vt. 583, 585, 750 A.2d 974, 976 (1999) (mem.);
Favreau v. Miller, 156 Vt. 222, 233, 591 A.2d 68, 75 (1991). In this case,
the record supports the trial court's conclusion that defendant met its
burden of production, and thus the court did not err in refusing to
instruct the jury that defendant had the burden to show that it had taken
reasonable steps to address the known hazard.
¶ 24. In sum, the trial court erred by endorsing defendant's
misstatement of the law during its closing argument and by failing to give
the jury a complete and adequate instruction on the law of premises
liability in stores with self-service operations. At trial, the parties
presented conflicting evidence - enough to avoid a directed verdict for
either side - on the reasonableness of the steps taken by defendant to
address the known hazard posed by the grape display. The question for the
jury was simply whether defendant had taken reasonable steps to protect its
customers, including plaintiff, from that foreseeable hazard. See W.
Prosser & W. Keeton, Prosser and Keeton on the Law of Torts § 61, at 425-26
(5th ed. 1984) (business owner must act reasonably to inspect premises to
discover possible dangerous conditions and take reasonable precautions to
protect invitee from foreseeable dangers).
Reversed and remanded.
FOR THE COURT:
_______________________________________
Associate Justice
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