Burns v. Schnuck Markets, Inc., s. 50649

• Decision Date: 12 November 1986
• Docket Number: Nos. 50649,50819,s. 50649
• Citation: 719 S.W.2d 499
• Parties: Christine BURNS, Plaintiff-Respondent, v. SCHNUCK MARKETS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 499

719 S.W.2d 499

Christine BURNS, Plaintiff-Respondent, v. SCHNUCK MARKETS, INC., Defendant-Appellant.

Nos. 50649, 50819.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 12, 1986.

Catherine R. McBride, St. Louis, for defendant-appellant.

John D. Schneider, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Christine Burns fell and sprained her ankle in Schnuck's supermarket, sued and recovered a $5,000 jury verdict. The trial court reduced the award to $2,500 upon a jury finding that Burns was 50% contributorily negligent. We affirm in part and modify in part.

Schnuck, has appealed from the adverse judgment arguing:

1) The trial court's denial of appellant's motion for directed verdict and judgment n.o.v. was error because respondent failed to prove either: a) the grocery cart in question was defective and/or unreasonably dangerous; b) appellant had such actual or constructive notice of the condition which caused respondents fall.

2) The trial court's denial of appellant's motion for directed verdict and judgment n.o.v. was error because respondent failed to make a submissible case through failure to produce the medical testimony necessary to support the element of damage allegedly caused by appellant's negligence.

3) The trial court erred in submitting Instruction No. 9.

4) The jury was allowed to speculate and engage in conjecture in determining the amount of respondent's damages due to the trial court's errors, thus allowing appellant to be prejudiced. Schnuck's arguments are without merit. Burns cross appealed contesting the validity of Instruction No. 7 on the ground it failed to instruct as to the knowledge she must possess.

Burns produced evidence at trial that the grocery cart she was pushing through Schnuck's Market suddenly stopped. Burns was thrown off balance, fell, and sprained her ankle. Several store employees helped Burns onto a produce cart and wheeled her out of the store to a car driven by Burns' boyfriend. The boyfriend, Ken Cope, drove Burns to Lutheran Hospital. Hospital medical records confirm Burns suffered a sprained ankle.

In the first point on appeal, Schnuck argues that Burns failed to prove the grocery cart was defective and/or that Schnuck had actual or constructive knowledge of the defect in the cart; that therefore, Burns did not make a submissible case; and that the trial court erred in not granting Schnuck's motion for a directed verdict or judgment n.o.v. When determining whether a submissible case has been made plaintiff's evidence is presumed to be true and the plaintiff is given the benefit of all reasonable and favorable inferences drawn from the evidence. Grube v. Associated Dry Goods, Inc., 663 S.W.2d 310 (Mo.App.1983); Larrea v. Ozark Water Skill Thrill Show, Inc., 562 S.W.2d 790 (Mo.App.1978). Burns testified she removed a grocery cart from the store's bin, she noticed the wheel wobbled, upon use the left front wheel jammed and the cart stopped abruptly. From this testimony, given the benefit of all reasonable inferences, a submissible case of a defective cart was made.

Schnuck's argument that they had no notice of the defective cart is not convincing. Burns removed the cart from a bin in which Schnuck employees place empty carts. She entered the store, "got me a cart, pulled it out, [of storage bin]." As she started pushing the cart "the wheel was wobbling." Schnuck furnished shopping carts and assumed the duty to furnish a safe cart. The evidence supports an inference that Schnuck's employees placed the cart in the storage area and had constructive knowledge of the defect which existed when Burns selected the cart from that area. In addition, the testimony of Schnuck's employees outlined the procedures taken to identify defective carts. However, it was also admitted the precautionary measures were not always followed when the store was crowded. From this evidence the jury could have reasonably surmised that the defective cart was negligently overlooked in the inspection procedure.

In Alvey v. Sears, Roebuck & Co., 360 S.W.2d 231 (Mo.1962) a store manager, whose duty it was to look out for dangerous conditions, was found negligent for failing to spot a marble on the floor which apparently caused the plaintiff to fall. The manager preceded the plaintiff down the aisle by approximately fifteen feet. The manager testified the marble was not on the floor when he passed yet the jury was allowed to find the manager negligent. The Missouri Supreme Court stated that considering the evidence to be true there were many possible explanations but that "[t]he jury could well have found that it was more likely that the object was there when [the manager] passed that point." Id. at 236. The court went on to rule "the question of fact of whether the marble was on the floor when [the manager] passed by and whether he was negligent were for a jury to decide." Id. In the case at bar the determination that Schnucks should have or could have had notice of the defective cart was for the jury. Because a submissible case was made, the court correctly refused to grant Schnuck's motion for a directed verdict or judgment n.o.v.

In Schnuck's second point on appeal they contend the trial court erred in denying their motion for directed verdict and judgment n.o.v. because Burns failed to make a submissible case by failing to produce the medical testimony necessary to support the element of damages. Schnuck contends that due to respondent's past ankle injuries a layman is incapable of determining the nature, type, extent and causal connection of respondent's injury without medical testimony. Burns contends this is not a circumstance in which an expert's testimony or other medical testimony would be required especially in light of the testimony that she had completely recovered from the previous injuries.

We held: "[T]he penchant of a broken wrist reoccurring presents an issue peculiarly appropriate for expert opinion. Yet, the question of fact involved in such inquiry is well within the common knowledge of laity, and thus may be resolved by the jury even absent expert opinion." Ponciroli v. Wyrick, 573 S.W.2d 731, 735 (Mo.App.1978). Comparatively a jury should be able to determine the nature, type, extent, and causal connection of a sprained ankle. Therefore, in spite of Burns' past injuries and their potential contribution to her injury, the jury is qualified to draw factual conclusions from this evidence.

Considering the evidence in light most favorable to Burns it is apparent she has made a submissible case. Burns testified as to the causal connection between the defective cart and her ankle injury: "As I was pushing [the cart] it stopped, and then I was, ... in a forward motion, and I started to fall forward, and to keep myself from falling flat on my face I somehow landed on my left side and my back and my leg was underneath me, and my ankle was all twisted sideways." The medical records identified the nature and type of injury: "impressions, severely sprained left ankle" and Ms. Burns provided further information as to the extent of her damages:

Q. Tell the jury how your foot felt the next day.

A. It hurt. It looked like a cantelope; it was that big and round, and every time I--like I kept it elevated, you know, with a couple of pillows so that it was higher than I normally keep it. It was as high as my head and when I would take it down to release the pressure it felt like the foot was on fire, and then I would have to put it back up. It was really sore. I couldn't move my toes; I couldn't put any pressure on it, and I had no mobility. I couldn't move it at all.

Q. What would happen if you lowered your leg? How would it feel?

A. Like it was on fire. That's the only way I know how to explain that, and it hurt.

Q. How long did it stay like that where you had a great deal of pain when you lowered it?

A. A couple of weeks.

It is within the jury's common experience to determine the consequences of a sprained ankle such as the resultant immobility and the inconvenience created. Burns v. Property Servicing Co., 276 S.W.2d 177, 182 (Mo.1955); Ponciroli v. Wyrick, supra.

Schnuck contends the trial court erred in submitting Instruction No....