Fogelbach v. Wal-Mart Stores Inc.

• Decision Date: 10 September 2001
• Docket Number: WAL-MART,No. 01-1199,01-1199
• Parties: (8th Cir. 2001) RONALD J. FOGELBACH, APPELLANT, v.STORES, INC., APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 696

270 F.3d 696 (8th Cir. 2001)

RONALD J. FOGELBACH, APPELLANT, v. WAL-MART STORES, INC., APPELLEE.

No. 01-1199

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 10, 2001

Filed: October 29, 2001

Appeal from the United States District Court for the Eastern District of Missouri.

Before Bowman, Heaney and Bye, Circuit Judges.

Heaney, Circuit Judge

This is a personal injury case arising out of a slip and fall incident at a St. Louis County, Missouri Wal-Mart store. Ronald Fogelbach appeals the district court's¹ issuance of judgment as a matter of law in favor of Wal-Mart and the court's denial of his motion for a new trial. Because we find that the district court erred by taking away the jury's verdict, we reverse.

I. Background

We present the facts in the light most favorable to the jury verdict. On July 14, 1995, Ronald Fogelbach was about to enter a Wal-Mart store when he stepped on one end of a one-half inch thick, dirty plastic band measuring over one foot in diameter. This step made the band flip up and trip his other foot, causing him to fall. Although he injured his leg, shoulder, wrist, and elbow, Fogelbach was able to get up and report the incident to a Wal-Mart customer service representative.²

The band was located on the pavement in front of several vending machines, about fifteen to twenty feet from the main doors to the store. This area is separated from the parking lot by a line of red bricks and red metal posts and is paved with concrete, as opposed to the asphalt paving in the parking lot. The jury was shown five photographs depicting the area where the accident occurred, and Fogelbach presented evidence that Wal-Mart employees were regularly in the front area where he tripped. In discovery, Wal-Mart admitted that this area was under the exclusive care, custody and control of Wal-Mart Stores, Inc. The store where the accident took place is one of Wal-Mart's larger stores. It had a customer count of 4,314 on the day of this accident.³

As a result of his injuries, Fogelbach brought this personal injury tort action against Wal-Mart Stores, Inc. At trial, the jury returned a verdict in favor of Fogelbach. The jury assessed damages of $150,000 and allocated fifty percent fault to the plaintiff, resulting in a net verdict of $75,000. Following the verdict, Fogelbach filed a motion for a new trial, contesting the court's refusal to give a requested jury instruction.⁴ Wal-Mart also contested the verdict and filed a motion for judgment as a matter of law or, in the alternative, a new trial. The district court overruled the motions for a new trial but granted Wal-Mart's motion for judgment as a matter of law. The district court then vacated the jury verdict and issued an amended final judgment in favor of Wal-Mart. Fogelbach appeals the district court's denial of his motion for a new trial and the issuance of judgment as a matter of law in favor of Wal-Mart.

II. Analysis

Fogelbach claims that the district court erred by: (1) failing to give a jury instruction that had been given in a similar slip and fall case, Martin v. Wal-Mart Stores, Inc., 183 F.3d 770 (8th Cir. 1999); and (2) by sustaining Wal-Mart's Motion for judgment as a matter of law and entering an amended final judgment in favor of Wal-Mart.

A United States District Court sitting in diversity jurisdiction applies the substantive law of the forum state, in this case, Missouri. See Martin, 183 F.3d at 772. Missouri follows the traditional rule that a plaintiff in a slip and fall case must establish that a defendant store had actual or constructive notice of a dangerous condition. See, e.g., Hople v. Wal-Mart Stores, 219 F.3d 823, 824 (8th Cir. 2000). Before 1989, a plaintiff had to produce evidence that a hazard had been present longer than twenty minutes to present a submissible case on the issue of constructive notice. See Grant v. National Supermarket 611 S.W.2d 357 (Mo. Ct. App. 1980)).

In Sheil v. T. G. & Y. Stores Co., 781 S.W.2d 778 (Mo. 1989) (en banc), however, the Missouri Supreme Court held that the length of time a hazard has been on the ground is no longer a conclusive factor in determining whether a plaintiff has presented a submissible case on the issue of constructive notice. The court reasoned that modern methods of self-service merchandising pose different risks than more traditional methods of merchandising. See id. at 781. Therefore, the court held that a self-service store owner is charged with the foreseeable risks inherent in its mode of operation. See id. Under current Missouri law, "the inquiry of whether the danger existed long enough that the store should have reasonably known of it (constructive notice) is made in light of the fact that the store has notice that certain dangers arising through customer involvement are likely to occur, and the store has a duty to anticipate them." Martin v. Wal-Mart Stores, Inc.,183 F.3d 770, 772 (8th Cir. 1999) (discussing Sheil, 781 S.W.2d 780-81).

Fogelbach's first challenge focuses on the district court's refusal to issue a jury instruction based on the holding of the Sheil case. The district court has wide discretion to formulate appropriate jury instructions. See Scheerer v. Hardee's Food Systems, 92 F.3d 702, 707 (8th Cir. 1996) (citation omitted). In reviewing instructions, this court must determine whether the instructions, "taken as a whole and viewed in light of the evidence and the applicable law, fairly and adequately submitted the issues in the case to the jury." B & B Hardware, Inc., v. Hargus Indus., Inc., 252 F.3d 1010, 1012 (8th Cir. 2001). This court will not reverse unless we find that the error affected the substantial rights of the parties. See Martin, 183 F.3d at 773.

Under Missouri law, if the owner of a business has actual or constructive notice of a dangerous condition, he has a duty to prevent injuries resulting from that condition. See Hople v. Wal-Mart Stores, 219 F.3d 823, 824 (8th Cir. 2000) (citation omitted). In this case, the jury was instructed on these elements. Instruction Seven stated:

In your verdict you must not assess a percentage of fault to defendant, whether or not plaintiff was partly at fault, unless you believed:

First, there was a plastic band on the sidewalk immediately in front of the entrance to defendant's store and as a result the entrance was not reasonably safe, and

Second, defendant knew or by using ordinary care could have known of this condition, and

Third, defendant failed to use ordinary care to remove the plastic band, and

Fourth, such failure, directly caused or directly contributed to cause damage to plaintiff.⁵

The Court declined to give the following self-service store instruction:

[A] self-service store... is deemed to have actual notice of foreseeable risks of dangers created by merchandise and other foreign substances on the floor whether those dangers are created by store employees or customers.

Fogelbach challenges the failure of the court to give this instruction.

The trial court in Martin gave the self-service store instruction, along with instructions similar to Instruction Seven in the present case. A panel of this court upheld the use of the self-service instruction. See Martin, 183 F.3d at 774 ("Though the self-service store instruction may not be a model of clarity, we find that the instructions, taken as a whole, adequately charged the jury under Missouri law."). The Martin Court noted that this instruction merely clarifies the degree of vigilance or effort needed to constitute ordinary care by Wal-Mart. See id.

We do not believe that the district court committed reversible error when it refused to give the self-service store instruction. "The liability of a defendant store owner in [slip and fall] cases is based upon his superior knowledge of a defective condition on his premises which results in injury." Hunt v. National Super Mkts., 809 S.W.2d 157, 159 (Mo. Ct. App. 1991) (citation omitted). Accordingly, the district court instructed the jury that it could not assess fault against Wal-Mart unless it believed that Wal-Mart knew about the plastic band or by using ordinary care, could have known about the band. The jury found that Wal-Mart did have such constructive notice. Although the self-service store instruction would have clarified for the jury what is meant by the term "ordinary care" in the second paragraph of Instructions Six and Seven, the failure to give the instruction did not prevent the jury from finding that Wal-Mart had constructive notice of the plastic band. The jury allocated fifty percent fault to Wal-Mart; therefore, we cannot find that the failure of the court to give this instruction substantially affected Fogelbach's rights.⁶ We find no reversible error in the jury instructions.

Next, Fogelbach challenges the district court's order granting judgment as a matter of law in favor of Wal-Mart and its entry of an amended final judgment. We review a court's grant of judgment as a matter of law de novo, using the same standards as the trial court. See Phillips v. Collings, 256 F.3d 843, 847 (8th Cir. 2001) (citation omitted). A judgment as a matter of law should only be granted when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Id. (quoting Fed. R. Civ. P. 50(a)). "In making this determination, the court must draw all reasonable inferences in favor of the nonmoving party without making credibility assessments or weighing the evidence." Id. (citations omitted).

In entering judgment as a matter of law in favor of Wal-Mart, the district court reasoned that:

There was no evidence of where the band came from, that it was from a Wal-Mart product or the type of band Wal-Mart uses, or how long it had been there on the ground.⁷

It may be...