Bank of Malvern v. Dunklin

• Decision Date: 04 November 1991
• Docket Number: No. 91-128,91-128
• Citation: Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (Ark. 1991)
• Parties: BANK OF MALVERN, Appellant, v. Jammie DUNKLIN, Appellee.
• Court: Arkansas Supreme Court

Page 873

817 S.W.2d 873

307 Ark. 127

BANK OF MALVERN, Appellant, v. Jammie DUNKLIN, Appellee.

No. 91-128.

Supreme Court of Arkansas.

Nov. 4, 1991.

Mark Pryor, Little Rock, for appellant.

John Doyle Nalley, Benton, for appellee.

NEWBERN, Justice.

This is a slip and fall case in which the jury returned a verdict for thirty-four thousand dollars against the appellant, the Bank of Malvern. The Bank argues the evidence was insufficient and a verdict should have been directed in its favor. We find the evidence insufficient and reverse and dismiss. The Bank raises other issues concerning the admissibility of certain statements and photographs, but a discussion of them is unnecessary in light of our resolution of the first question.

The appellee, Jammie Dunklin, entered the east entrance of the Bank a few minutes after it opened at nine o'clock in the morning. At that time, it was raining. Dunklin proceeded through the doors leading into the lobby, and after taking a few steps, she fell and broke her arm. Dunklin testified her feet hit something slick causing her to fall, but she did not see the substance. Dunklin assumed the substance was water because after the fall she was lying in something wet. Dunklin could not remember whether her clothes were wet when she got up because she was in so much pain. None of the other witnesses who testified remembered seeing any substance on the floor the morning of the accident.

Brenda Weldon was an employee of the Bank whose desk was located near the east entrance where Dunklin fell. She testified employees arrived at work beginning at eight o'clock, and usually five or six employees entered the Bank through the east entrance. Weldon remembered only one customer entering the Bank before Dunklin the morning of the accident.

A motion for a directed verdict should be granted only if there is no substantial evidence to support the verdict. On appeal from a denial of a directed verdict, the Court views the evidence in the light most favorable to the party against whom the verdict is sought and gives it the highest probative value. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or another. It must force the mind to pass beyond suspicion or conjecture. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).

A property owner has a general duty to exercise ordinary care to maintain his or her premises in a reasonably safe condition for the benefit of invitees. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). See also AMI Civil 3rd, 1104. The burden of establishing a violation of this duty in a slip and fall case is well established. A plaintiff 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. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). See also AMI Civil 3rd, 1105.

Under the first part of the standard, the Bank argues there was insufficient evidence that a substance was on the floor as a result of their negligence. Dunklin could only speculate that the substance which caused her fall was water. She did not see the substance before she fell and only believed it was water because she felt something wet beneath her. Furthermore, there was no substantial evidence regarding how the substance came to be on the lobby floor. Dunklin believed water was brought inside on the clothes or shoes of a customer or employee and that it accumulated on the floor causing her to fall. This testimony was speculative and insufficient to show there was a substance on the floor due to the Bank's negligence. In Safeway...