Benson v. H.G. Hill Stores, Inc.
| Decision Date | 20 August 1985 |
| Docket Number | No. 85-95-II,85-95-II |
| Parties | Velma BENSON, Plaintiff-Appellant, v. H.G. HILL STORES, INC., Defendant-Appellee. |
| Court | Tennessee Court of Appeals |
Thomas Travaglini, Madison, Thomas Watson, Nashville, for plaintiff-appellant.
John P. Branham, Eugene J. Honea, Howell, Fisher, Branham & North, Nashville, for defendant-appellee.
The plaintiff, Velma Benson, has appealed from a directed verdict for the defendant, H.G. Hill Stores, Inc., in a suit for personal injuries sustained in a fall on defendant's premises.
On appeal, issues presented by plaintiff are as follows:
1. Whether the trial court erred in granting the Defendant's Motion for Directed Verdict when the Plaintiff had introduced evidence from which it could be inferred that the Defendant had actual or constructive notice of the dangerous condition.
2. Whether, in light of recent Court of Appeals decisions, a Plaintiff injured in a slip and fall accident in a self-service supermarket had the burden of proving, prior to a directed verdict, that the Defendant had actual or constructive notice of the dangerous condition.
Plaintiff testified that she was in defendant's store late at night near closing time; that she saw no other customers in the store; that she was walking "by the front check-out lanes near the front door" when she slipped and fell on wet floor wax; that the wax stained her white pants; and that the area of her fall was in plain view of two store employees who had just received payment for her purchases and placed them in a sack.
The Trial Judge stated orally his reasons for directing a verdict in the following language:
THE COURT: If she wants to use that allegation, that is, in fact, wax, there should be some corroborating testimony of some kind.
....
THE COURT: I know, but when you have the burden of proof, you have to have corroboration.
....
THE COURT: ... The charge that I give the jury in every one of these cases is that if the plaintiff is entitled to a verdict, they must show not only that an unreasonably dangerous condition of the premises caused her injury, but also that the defendant knew of the unreasonably dangerous condition prior to the plaintiff's injury long enough for the defendant to have corrected the condition or that the condition had existed for a sufficient length of time, that the defendant in the exercise of reasonable care, should have known of it's existence and corrected it....
Now, that's the charge I give the jury.
....
THE COURT: ... [T]here's no proof in the record at all as to how it got there, how long it had been there. And these are elements that have to be taken into consideration. And the burden of proving those elements, Mr. Doty, is on the plaintiff.
....
THE COURT: You're telling me the same thing over and over again. But there is no corroboration. There's just--proof is just not there....
....
THE COURT: ... [T]he Court is holding what I put in the record. That there's no proof to show how long it was there, really what it was, whether the defendant had a chance to know about it, whether the defendant could have removed it, and all those things. And in the absence of any proof at all, sir, I just have no alternative but to direct a verdict and that's what I'm going to do.
This Court is not aware of any rule of law requiring corroboration of plaintiff's testimony in a negligence case. It is noted, however, that, in his final statement of his reasons, the Trial Judge rested his decision upon the lack of evidence to show actual or constructive notice to defendant of the condition which caused plaintiff's injury.
The plaintiff in a negligence case has the burden of showing by a preponderance of the evidence (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty and (3) injury to the plaintiff proximately resulting from such breach of duty. Noland v. Freeman, 53 Tenn.App. 644, 385 S.W.2d 310 (1964).
Plaintiff in a negligence case must include in his evidence in chief a prima facie showing of duty, breach of duty and resultant injury; and a failure to do so will subject him to dismissal at the close of plaintiff's evidence. However, this initial burden differs from the ultimate burden in that it does not require a preponderance of evidence, but only evidence of sufficient substance to support a finding in favor of the plaintiff.
A verdict may be directed for the defendant only if there is no material evidence in the record which would support a verdict for the plaintiff. On considering a defendant's motion for directed verdict, the court is required to take the strongest legitimate view of the evidence in favor of the plaintiff, including all reasonable inferences in the plaintiff's favor, and to disregard any evidence to the contrary. Walker v. Associates Commercial Corp., Tenn.App. 1983, 673 S.W.2d 517, and authorities cited therein.
There is no question that plaintiff presented a prima facie case of duty to her by showing that she was an invitee on defendant's business premises, and of an injury from a condition of the premises.
A business proprietor has a duty to exercise reasonable care and to maintain his premises in a reasonably safe condition for his invitees. Haga v. Blanc & West Lumber Co., Inc., Tenn.1984, 666 S.W.2d 61 and authority cited therein.
The measure of the liability of possessors of land to invitees is due care under all the circumstances, including opportunity to know and avoid existing or probable dangers and any and all other factors which would challenge attention to the probability of danger, and to utilize such precautions as a prudent person would utilize under the same or similar circumstances. Zang v. Leonard, Tenn.App. 1982, 643 S.W.2d 657.
The only debate on this appeal is whether plaintiff presented prima facie evidence that her injury resulted from the negligence of defendant, that is, a violation of defendant's duty to exercise due care for the safety of plaintiff.
Before an owner or operator of a premises can be held liable for negligence in allowing a dangerous or defective condition to exist on the premises, it must have been created by the owner or operator or his agent or, if the condition was created by someone else, there must be actual or constructive notice on the part of the owner or operator that the condition existed prior to the injury. Jones v. Zayre, Inc., Tenn.App.1980, 600 S.W.2d 730, and authorities cited therein.
Facts may be inferred from circumstantial evidence, and an inferred fact may be the basis of a further inference to the ultimate or sought-for fact. Stinson v. Daniel, 220 Tenn. 70, 414 S.W.2d 7 (1967); Young v. Reliance Electric Co., Tenn.App.1979, 584 S.W.2d 663.
In a civil case depending upon circumstantial evidence, it is sufficient for a party having the burden of proof to make out the more probable hypothesis, and the evidence need not arise to that degree of certainty which will exclude every other reasonable conclusion. It is only necessary for the plaintiff to present proof which, if believed by the jury, makes plaintiff's theory of the case more probable than the theory of the defendant. Tennessee Liquefied Gas Corp. v. Ross, 60 Tenn.App. 648, 450 S.W.2d 587, 41 A.L.R. 3rd 769.
The salient circumstances presented by the plaintiff's testimony are as follows:
1. The time: 11:30 P.M.
2. Persons present: no other visible customers, two employees of defendant stationed a few feet from the injury.
3. The place: the entrance/exit vestibule of the store where customers exit after paying for purchases.
4. The condition: a slick floor due to the presence of wet liquid wax.
Jurors are forbidden to consider any fact in the case which may be personally known to any one of them. Citizens Street Railway Co. v. Burk, 98 Tenn. 650, 40 S.W. 1085 (1897). However, in selecting the most probable inference to draw from a set of circumstances, the jury is permitted to draw upon and consider its general personal knowledge and experience...
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