Culli v. Marathon Petroleum Co., 88-1046

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation862 F.2d 119
Docket NumberNo. 88-1046,88-1046
Parties26 Fed. R. Evid. Serv. 1338 Elizabeth Jeanne CULLI and Gary Leonard Culli, Plaintiffs-Appellees, v. MARATHON PETROLEUM COMPANY, an Ohio corporation, d/b/a Cheker Oil Co.; and Cheker Oil/Western Division, a division of EMRO Marketing Company, a Delaware corporation, Defendants-Appellants.
Decision Date09 November 1988

Demetri Hassakis, Hassakis & Hassakis, Vernon, Ill., for plaintiffs-appellees.

Gene J. Brockland, Caruthers Herzog Crebs & McGhee, St. Louis, Mo., for defendants-appellants.

Before POSNER and COFFEY, Circuit Judges, and WILL, Senior District Judge. *

WILL, Senior District Judge.

This is a slip and fall negligence case with federal jurisdiction based on diversity. 1 Elizabeth and Gary Culli, plaintiffs-appellees, brought an action against the owners and operators of a gas station, Marathon Petroleum Company and Cheker Oil/Western Division, defendants-appellants,

                based on Mrs. Culli's physical injuries suffered as a result of her fall at the defendants' station and Mr. Culli's loss of consortium.  The jury returned a verdict in favor of the plaintiffs and against both defendants, awarding $90,500.00. 2   The defendants' motions for judgment notwithstanding the verdict and a new trial were denied.  The defendants appeal the denial of their motions but not the amount of the jury award.  We affirm
                
BACKGROUND

Marathon and Cheker owned and operated a twenty-four hour self-service gas station at the corner of Broadway and 22nd Street in Mt. Vernon, Illinois. The station was typically staffed by one person, an attendant, who would primarily stay inside running the cash register. The manager was generally present during some morning hours, sometimes by himself. Two attendants would usually be at the station together for a brief period, approximately thirty minutes, when one came to work to replace the other. In addition to operating the cash register, the attendant was responsible for replenishing supplies and maintaining the premises. At the station, the defendants sold gas, oil, transmission fluid, cigarettes, milk, hot food, sandwiches, candy, soda, clothing and other things. Testimony at trial established that the attendants' priorities were to receive payments from customers, replenish inventory, maintain the inside of the store and, finally, maintain the outside area.

Mrs. Culli's accident occurred on Saturday, August 4, 1984, a day on which the station was conducting a special soda sale. The station has three sets of islands which house gas pumps and soda cartons were stacked on pallets at the ends of the pump islands. Soda sales on August 4th and 5th totalled $1,139.42.

Mark Stover was the attendant on duty for the day shift on August 4th and no manager was on duty or present at the time in question. 3 Stover did not sweep or clean the lot during the day but he removed empty wooden cartons from the stacks of soda on at least six occasions, primarily from the stacks at either end of the island closest to the store, as that was where most of the soda purchased was initially placed. Normally, the lot was swept during the night shift, sometime between 11:00 p.m. and 7:00 a.m., but the attendant during the evening prior to the accident (August 3rd) did not recall whether or not he had swept that night. The station manager did not maintain a set policy as to how often the outside area was to be cleaned. There was testimony from an employee that she asked Mark Jones, the station manager, to obtain more help because the station was understaffed and that he relayed such a request to his superiors, which went unheeded.

Stover did not see any type of spill in the pump area nor did anyone report any spills to him that day. There was testimony, however, that spills in general occurred once or twice during each shift, depending upon the day's business. Mark Jones, the station manager, was aware of the daily spills. From inside the station, Stover and other attendants had a limited (obstructed) view of the outside area.

At approximately 4:45 p.m., on August 4th, Mrs. Culli drove her car up to the far side of the first set of islands closest to the store. She filled her gas tank and then crossed the pump island and went into the store to pay for her gas and purchase soda. She purchased five eight-pack cartons and Mrs. Culli was attended to by Stover and Janice Moore, an attendant who had just arrived for the next shift (to replace Stover). Moore called an ambulance. James Mullaney of the Litton Ambulance Service arrived to assist Mrs. Culli. He testified at trial that he noticed a slippery substance on Mrs. Culli's shoes and on her calf. Mrs. Culli also testified that she noticed the slippery substance. Neither Mullaney nor Mrs. Culli could positively identify this substance and Stover and Moore testified that they did not notice any slippery substance on or near Mrs. Culli. Stover admitted at trial, however, that he did not investigate to see if there was any substance on the pavement or what might have caused Mrs. Culli's fall.

picked up two of them on the way out. On her return to her car, Mrs. Culli crossed back over the pump island a few feet from where she had crossed it on the way to the store. When she stepped off the island, she slipped and fell.

In addition to the presence of a slippery substance on Mrs. Culli's shoe and calf, Mr. Mullaney testified that he saw a spill or some substance in a pool approximately eight to ten inches in width and length which looked like a slippery film and appeared to be a product typically found at a gas station or pantry. According to Mullaney, the substance could have been oil or gasoline but he was not positive. It was a "clearish type of thing" which may have been mixed with dirt or some other substance because when he wiped it off it had a brownish tinge.

At trial, the plaintiffs did not establish how long the slippery substance was on the lot before Mrs. Culli fell. The defendants claim on appeal, as they did at trial, that they could not have had constructive notice of a dangerous condition, the slippery substance, as a matter of law without evidence establishing the identity of the substance and the length of time it was present.

Over the defendants' objections, the plaintiffs were permitted to introduce evidence concerning the fact that the gas station did not always stock "oil dry," a substance similar to and possibly mixed with cat litter which is used to clean up spills, e.g., oil and gas spills. The defendants claim that this testimony was prejudicial and irrelevant to establishing constructive notice.

There was testimony from several employees of the defendants with respect to how Mrs. Culli's accident was investigated, photographed and reported. The plaintiffs apparently argue on appeal that there was something improper or dishonest with respect to how and when the defendants reported the accident and whether or not photographs of the scene of the accident were taken soon after Mrs. Culli's fall and whether they were used to complete the accident report. There are no claims on appeal, however, that the introduction of any evidence or exhibits concerning the defendants' accident report or photographs was improper. According to the plaintiffs, any concerns they had with respect to this evidence were brought out in the plaintiffs' favor on cross-examination.

Mrs. Culli was treated for a compound fracture of her left ankle. She spent several days in a hospital and subsequently used a wheelchair and walker for a few months and later underwent physical therapy and other medical treatment. She returned to work on April 1, 1985.

The parties agree that the defendants' liability is determined by Illinois law. The issues on appeal are: (1) may a property owner be found to have constructive notice of a dangerous condition created by a slippery substance when there is no evidence establishing how long the substance existed on the premises? (2) may the presence of a slippery substance be found to be a part of a pattern of conduct to establish a property owner's constructive notice of this substance when the substance has not been positively identified? and (3) did the district court abuse its discretion by allowing the plaintiffs to present evidence of the defendants' general practices concerning stocking "oil dry"?

STANDARD OF REVIEW

On appeal, we review de novo the district court's denial of the defendants'

motions for judgment notwithstanding the verdict and a new trial, Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15 (7th Cir.1987), under the same standard applied by the district court: viewing the evidence in a light most favorable to the non-movant, was there substantial evidence to support the jury's verdict. Mulay Plastics, Inc. v. Grand Trunk Western R.R. Co., 822 F.2d 676, 679 (7th Cir.1987); Webb v. City of Chester, Illinois, 813 F.2d 824, 828 (7th Cir.1987). In addition, because the plaintiffs could have succeeded under one of two alternative independent theories of relief, and the jury returned a general verdict as opposed to a special verdict which, for example, could have included specific findings with respect to each theory of relief, we need only find that there was substantial evidence to support the jury's verdict under at least one of the two alternative theories. Cannon Oil & Gas Well Service v. Evertson, 836 F.2d 1252, 1254-55 (10th Cir.1987). See also Simmons v. Pinkerton's Inc., 762 F.2d 591, 599 n. 3 (7th Cir.1985) (a jury's verdict is assumed to be based on a valid theory of liability where the court's instruction could have led to a finding of liability based on an alternative invalid theory). Finally, we review the trial court's evidentiary rulings contested on appeal to see whether they were a clear abuse of discretion. Davis v. Lane, 814 F.2d 397, 399 (7th Cir.1987).

ANALYSIS

The defendants, as property owners,...

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