Wal-Mart Stores, Inc. v. Rogers, WAL-MART

Decision Date01 July 1998
Docket NumberWAL-MART,No. 97-4279,97-4279
Citation714 So.2d 577
Parties23 Fla. L. Weekly D1602 STORES, INC., Appellant, v. Sheila ROGERS and Moses Rogers, Appellees.
CourtFlorida District Court of Appeals

Jeffrey P. Gill and Christopher R. Johnson of Bridgers & Gill, Pensacola, for Appellant.

Michael A. Jones, Niceville, for Appellees.

WEBSTER, Judge.

Appellant (Wal-Mart) seeks review of an adverse final judgment, entered pursuant to a jury verdict, in a negligence action. It argues that reversible error occurred when the trial court (1) denied its motion for a directed verdict; (2) instructed the jury on the doctrine of res ipsa loquitur; (3) refused to grant a new trial notwithstanding improper comments made by opposing counsel during closing arguments; and (4) denied its motion for remittitur. We conclude that an instruction on the doctrine of res ipsa loquitur was improper given the facts of the case. Accordingly, we reverse and remand for a new trial.

Appellee Sheila Rogers (Mrs. Rogers) filed suit against Wal-Mart, claiming that she had been injured as the result of Wal-Mart's negligence while shopping in one of the company's stores. Wal-Mart responded by denying that it had been negligent, and asserting that Mrs. Rogers had, herself, been negligent.

At trial, Mrs. Rogers testified that she went to a Wal-Mart store to purchase various items. She was accompanied by her four-year-old grandson, whom she placed in the child seat of a cart. While in an aisle of the toy department, she was injured when a toy radio fell from the hook or peg on which it had been hanging, hitting her nose. According to Mrs. Rogers, the hook from which the radio had fallen was beyond her reach (she is approximately five feet one inch tall). She said that there were so many radios hanging from the hook that she could not have rehung the one that had fallen had she tried. She also said that she did nothing to cause the radio to fall. It is undisputed that Mrs. Rogers suffered a septal hematoma and a fractured septum as the result of the incident.

Wal-Mart moved for a directed verdict, arguing that no evidence had been presented to establish either that it had created a dangerous condition or that it had had actual or constructive knowledge that a dangerous condition existed. On appeal, Wal-Mart contends that the trial court committed reversible error when it denied the motion for a directed verdict. We disagree. We believe that Mrs. Rogers' testimony regarding the number of radios which were hanging from the hook was sufficient to permit the jury to find that Wal-Mart had placed too many radios on the hook, creating a dangerous condition. See e.g., Klaue v. Galencare, Inc., 696 So.2d 933, 935 (Fla. 2d DCA 1997) ("whether a business entity was negligent in stacking items on a shelf in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question"); Harrell v. Beall's Dep't Store, Inc., 614 So.2d 1142 (Fla. 2d DCA 1993) (whether a department store created a dangerous condition by the manner in which it mounted a display rack is a jury question). Accordingly, the trial court correctly denied Wal-Mart's motion for a directed verdict.

During the charge conference, Mrs. Rogers' attorney requested an instruction on the doctrine of res ipsa loquitur. Over Wal-Mart's objection, the trial court instructed the jury:

If you find that the circumstances of the occurrence were such that, in the ordinary course of events, it would not have happened in the absence of negligence, and that the instrumentality causing the injury was in the exclusive control of the Defendant at the time...

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6 cases
  • Hall v. Sunjoy Indus. Group Inc.
    • United States
    • U.S. District Court — Middle District of Florida
    • 18 Febrero 2011
    ...displayed the chair within reach of its shoppers, the chair was not within Kmart's exclusive control. See Wal–Mart Stores, Inc. v. Rogers, 714 So.2d 577, 578 (Fla. 1st DCA 1998) (radios were not under Wal–Mart's exclusive control for res ipsa purposes because “they were displayed in the sto......
  • Jacobs v. Westgate
    • United States
    • Court of Appeal of Florida (US)
    • 13 Septiembre 2000
    ...instructed on issues that should never have been before it. We cannot conclude that this was not harmless. See Wal-Mart Stores, Inc. v. Rogers, 714 So.2d 577 (Fla. 1st DCA 1998). We conclude that the trial court erred in not directing a verdict for Jacobs on both liability and comparative J......
  • Markowitz v. Helen Homes of Kendall Corp.
    • United States
    • United States State Supreme Court of Florida
    • 5 Septiembre 2002
    ...conditions on the premises. Of course, the duty of care may vary with the circumstances. See, e.g., Wal-Mart Stores, Inc. v. Rogers, 714 So.2d 577, 578 (Fla. 1st DCA 1998) (whether store was negligent in manner in which it hung radios from hook so as to create a dangerous condition was jury......
  • Kenyon v. Miller
    • United States
    • Court of Appeal of Florida (US)
    • 1 Marzo 2000
    ...committed reversible error when it gave the jury the res ipsa loquitur instruction, requested by Miller, see Wal-Mart Stores, Inc. v. Rogers, 714 So.2d 577, 579 (Fla. 1st DCA 1998)(error in giving unsupported res ipsa loquitur instruction cannot be deemed harmless); St. Claire, 445 So.2d at......
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