Berryman v. K Mart Corp.

• Decision Date: 18 February 1992
• Docket Number: Docket No. 127823
• Citation: Berryman v. K Mart Corp., 483 N.W.2d 642, 193 Mich.App. 88 (Mich. App. 1992)
• Parties: Darlene BERRYMAN and Robert Berryman, Plaintiffs-Appellants, v. K MART CORPORATION, a Michigan corporation, Defendant-Appellee. 193 Mich.App. 88, 483 N.W.2d 642
• Court: Court of Appeal of Michigan

Page 642

483 N.W.2d 642

Darlene BERRYMAN and Robert BerrymanPlaintiffs-Appellants, v.K MART CORPORATION, a Michigan corporationDefendant-Appellee.

Docket No. 127823.

193 Mich.App. 88, 483 N.W.2d 642

Court of Appeals of Michigan.

Submitted Jan. 16, 1992, at Detroit.

Decided Feb. 18, 1992, at 9:05 a.m.

Released for Publication May 19, 1992.

[193 MICHAPP 89]Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Gregory M. Janks and Barbara M. Robinson, Detroit, for the plaintiffs-appellants.

Kevin F. Robbins, Troy, for defendant-appellee.

Before MURPHY, P.J., and MARK J. CAVANAGH and CONNOR, JJ.

CONNOR, Judge.

Plaintiffs Darlene and Robert Berryman appeal from the trial court's grant of defendant's motion for a directed verdict.We reverse.

On March 8, 1985, plaintiffDarlene Berryman slipped and fell in defendant's Garden City store.After she fell, she noticed that the floor was wet and that the "wet streaky marks on the floor" were consistent with freshly mopped floors she had seen in the past.Two women, who had seen her fall, offered assistance.Mrs. Berryman failed to get the names of these women, and they had left by the time defendant's employees investigated the fall.As a result, the women did not testify at trial.

[193 MICHAPP 90] According to Mrs. Berryman, the women told her that they had seen someone mopping the floor where she had fallen immediately before the accident.However, at trial defendant successfully objected to Mrs. Berryman's testimony regarding the statements of the women who had come to her assistance, arguing that the statements constituted hearsay not falling within any exception.Defendant, in its answers to plaintiffs' interrogatories, which were introduced as exhibits at trial, admitted that its premises were maintained solely by its employees.

After regaining her composure, Mrs. Berryman sought out an employee of defendant to report her fall.According to Mrs. Berryman's testimony at trial, the employee told her that defendant's floors were mopped at various times during the day.The employee also told her that it was "likely" that the floor had been mopped before her fall, but that the employee did not know for certain.This employee did not testify at trial.

After three telephone calls, which took approximately one-half hour, a supervisor appeared and listened to Mrs. Berryman's account of the accident.When the two subsequently returned to the spot where she had fallen, the floor was dry.

In their suit, plaintiffs alleged that Mrs. Berryman suffered lumbar spine and cervical spine injuries as a direct and proximate result of defendant's negligence.Mr. Berryman claimed loss of consortium arising out of his wife's injuries.

At the conclusion of plaintiffs' proofs, the trial court granted defendant's motion for a directed verdict.First, the trial court ruled that defendant was entitled to a favorable verdict with regard to Mr. Berryman's claim for loss of consortium because insufficient evidence of damages was introduced as a result of his failure to testify.Second,[193 MICHAPP 91]the trial court ruled that defendant was also entitled to a directed verdict with regard to Mrs. Berryman's claim of negligence because plaintiffs failed to establish that defendant had breached any duty.Plaintiffs appeal as of right, raising a number of issues.

Plaintiffs first contend that the trial court erred in granting defendant's motion for a directed verdict with regard to Mrs. Berryman's claim of negligence.We begin by noting that "[d]irected verdicts, particularly in negligence cases, are viewed with disfavor."Vsetula v. Whitmyer, 187 Mich.App. 675, 679, 468 N.W.2d 53(1991).

When ruling on a motion for a directed verdict, a trial court must consider the evidence presented at trial and all legitimate inferences that may be drawn from the evidence in a light most favorable to the nonmoving party to determine if a prima facie case was established.Bercel Garages, Inc. v. Macomb Co. Rd. Comm., 190 Mich.App. 73, 89, 475 N.W.2d 840(1991);Reisman v. Regents of Wayne State University, 188 Mich.App. 526, 538, 470 N.W.2d 678(1991).Where the evidence is such that reasonable jurors could honestly have reached different conclusions, the trial court may not substitute its judgment for that of the jury and the motion must be denied.Bercel Garages, supra, 190 Mich.App. at 89, 475 N.W.2d 840;Mourad v. Automobile Club Ins. Ass'n, 186 Mich.App. 715, 721, 465 N.W.2d 395(1991).In reviewing the decision of the trial court, this Court uses an identical standard to determine if the trial court erred.Reisman, supra, 188 Mich.App. at 538, 470 N.W.2d 678.

To establish a prima facie case of negligence, a plaintiff must introduce evidence sufficient to prove that (1)the defendant owed a duty to the plaintiff, (2)the defendant breached that duty, (3)the defendant's breach of its duty was a proximate cause of the plaintiff's injuries, and (4)the plaintiff[193 MICHAPP 92] suffered damages.Johnson v. Bobbie's Party Store, 189 Mich.App. 652, 659, 473 N.W.2d 796(1991);Nolan v. Bronson, 185 Mich.App. 163, 169, 460 N.W.2d 284(1990).A prima facie case of negligence may be established by use of legitimate inferences, as long as sufficient evidence is introduced to take the inferences "out of the realm of conjecture."Ritter v. Meijer, Inc., 128 Mich.App. 783, 786, 341 N.W.2d 220(1983).

A storekeeper's liability for injuries caused on its premises is well established in this state.

"It is the duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have had knowledge of it."[Serinto v. Borman Food Stores, 380 Mich. 637, 640-641, 158 N.W.2d 485(1968), quotingCarpenter v. Herpolsheimer's Co., 278 Mich. 697, 271 N.W. 575(1937);emphasis deleted.]

See alsoAndrews v. K mart Corp., 181 Mich.App. 666, 670-671, 450 N.W.2d 27(1989);McCune v. Meijer, Inc., 156 Mich.App. 561, 562, 402 N.W.2d 6(1986).Neither party questions that defendant owed plaintiffs a duty to provide reasonably safe aisles under the strictures of Serinto.The dispute centers on whether the evidence introduced at trial was sufficient to establish a prima facie case of negligence, specifically whether defendant breached its duty to plaintiffs.

Whitmore v. Sears, Roebuck & Co., 89 Mich.App. 3, 5, 279 N.W.2d 318(1979), the case relied upon by defendant in the trial court and the trial court in its decision to grant defendant's motion for a [193 MICHAPP 93] directed verdict, involved an oil spill in the parking lot of the defendant's store.The Court of Appeals found that the evidence presented by the plaintiff, which "established that there was an oily substance on Sears' parking lot at the spot where she fell," was insufficient to support an inference that the defendant's employees had caused the spot to be there or that the defendant had actual or constructive notice of the spot.Id. at 10, 279 N.W.2d 318.Accordingly, the Court of Appeals concluded that the trial court had erred in denying the defendant's motion for a directed verdict.Id. at 9-10, 279 N.W.2d 318.

The evidence in this case supporting an inference that defendant caused the condition that led to Mrs. Berryman's fall is much stronger.Mrs. Berryman testified that she had fallen on a wet spot on the floor within defendant's store.She also testified that she observed the floor after her fall and noted it was streaky, like floors she had mopped in the past, and that there were no signs or warnings that the floor was wet.Mrs. Berryman further testified that she later saw an employee of the defendant, near the rear of the store, with a mop and bucket.Finally, defendant admitted that its premises were maintained solely by its employees.A logical inference to be drawn from this testimony is that defendant's employees had mopped the floor on which Mrs. Berryman had fallen and that they had failed to post adequate warning signs.

Because the evidence leads to an inference that defendant created the condition that caused Mrs. Berryman's fall, proof of notice is unnecessary and the parties' arguments regarding that issue will not be addressed.Williams v. Borman's Foods, Inc., 191 Mich.App. 320, 321, 477 N.W.2d 425(1991).

Mrs. Berryman established that defendant owed her a duty, that defendant breached that duty by [193 MICHAPP 94] creating a condition that was dangerous, that the condition created caused her injury, and that she suffered damages.Because the evidence was sufficient to enable reasonable jurors to reach different conclusions, we conclude that the trial court erred in substituting its judgment for that of the jury and in granting defendant's motion.Accordingly, we reverse.

We also agree that the trial court erred in directing a verdict for defendant with regard to Mr. Berryman's claim for loss of consortium.The trial court granted defendant's motion for a directed verdict with regard to that claim after ruling that, because of Mr. Berryman's failure to testify, there was insufficient evidence to support his claim.

Loss of consortium includes loss of conjugal fellowship, companionship, services, and all other incidents of the marriage relationship.Oldani v. Lieberman, 144 Mich.App. 642, 645, 375 N.W.2d 778(1985).A claim of loss of consortium is derivative and recovery is contingent upon the injured spouse's recovery of damages for the injury.Moss v. Pacquing, 183 Mich.App. 574, 583, 455 N.W.2d 339(1990), consideration of certified conflict declined 435 Mich. 1204465 N.W.2d 916(1990);Oldani, supra, 144 Mich.App. at 645, 375 N.W.2d 778.A party claiming damages arising from loss of consortium must prove those damages by a...