Cowan v. Ellison Enterprises, Inc.

• Decision Date: 16 November 2005
• Docket Number: No. CA 04-1281.,CA 04-1281.
• Citation: Cowan v. Ellison Enterprises, Inc., 217 S.W.3d 175, 93 Ark. App. 135 (Ark. App. 2005)
• Parties: Ingrid COWAN, Appellant, v. ELLISON ENTERPRISES, INC. d/b/a Price Chopper, Appellee.
• Court: Arkansas Court of Appeals

217 S.W.3d 175

Ingrid COWAN, Appellant, v. ELLISON ENTERPRISES, INC. d/b/a Price Chopper, Appellee.

No. CA 04-1281.

Court of Appeals of Arkansas, Divisions II, III, IV.

November 16, 2005.

James R. Pate, Russellville, for appellant.

Barber, McCaskill, Jones & Hale, P.A., by: John S. Cherry and James D. Robertson, Little Rock, for appellee.

WENDELL L. GRIFFEN, Judge.

In this slip-and-fall case Ingrid Cowan appeals from a grant of summary judgment in favor of Ellison Enterprises, Inc. d/b/a Price Chopper. She contends that there are genuine issues of material fact that can only be resolved by a trial on the merits. Because appellant failed to present a genuine issue of material fact regarding appellee's alleged negligence as cause for her slip and fall, we affirm.

Background Facts

In her complaint filed July 7, 2003, appellant alleged that she slipped on a grape in appellee's grocery store and charged appellee with negligence in allowing the grape to fall onto the floor. She specified appellee's alleged negligent acts in a February 11, 2004 amended complaint:

a. The positioning of the grapes in the produce section of Price Chopper was negligent in that this created a substantial risk of loose grapes falling onto the floor of the store, and this danger and negligence was known to Price Chopper and any reasonable person.

b. The use by Price Chopper of woven mesh plastic bags with holes in them to sack the grapes for display for sale created an inherently dangerous condition in that grapes could fall through the holes to the floor when the sacks were picked up creating a dangerous condition for customers. This danger was known to Price Chopper and to any reasonable person.

c. Price Chopper had experience and reasonable cause to know that customers routinely pick up produce for inspection prior to purchase, and it was routine and customary for grapes and other produce to fall onto the floor and create a dangerous condition.

d. Price Chopper was negligent in not placing non-slip mats and other protective flooring in the aisles of the produce section, and especially in the aisle where the grapes were displayed, to prevent slips and falls by customers.

e. Price Chopper knew that it could not inspect the aisles around the produce section of the store, and in particular where the grapes were displayed, every minute of every day, and Price Chopper should have taken extra precaution to protect customers from injury as a result of produce items falling to the floor before Price Chopper made a routine clean-up inspection.

f. For the minimal cost of non-slip mats placed in the aisles of the produce section, and especially in the area where the grapes were displayed, and of using solid produce bags without holes or produce bags with very tiny holes, Price Chopper could have prevented this accident in which the plaintiff was severely injured.

On January 30, 2004, appellee filed a motion for summary judgment, wherein it alleged that there was no evidence that it knew or should have known of the grape's presence on the floor and that there was no evidence that appellee's employees dropped the grape. Appellee relied heavily on appellant's deposition testimony in support of its motion. During the deposition appellant testified that she was at the end of the counter in the produce department of appellee's store when she suddenly slid. She remembered seeing two grapes on the floor when she fell. Appellant was certain she slipped on a grape because a grape was on her heel when she landed. She stated that she did not know how the grapes came to be on the floor or how long they were on the floor; however, she assumed that the grapes came from the counter because the grapes were being sold in woven plastic bags with holes in them. Appellant testified that the floor was dark and dirty and that there were no mats on the floor around the area where she fell.

In response to appellee's motion for summary judgment, appellant submitted an affidavit, wherein she stated:

I have been a frequent customer for several years prior to my fall in the Price Chopper store of the defendant in Russellville, Arkansas. I am a senior citizen, and I know that many elderly people shop at this store.

I have seen produce items on the floor of the store in the produce section. Even before my fall on June 13, 2002, friends and relatives of mine have seen loose grapes on the floor in the produce section and they have seen them since the date of my fall. I learned all of this after my fall because friends and relatives expressed concern because they knew that I slipped on loose grapes on the floor.

At the time of my fall, the grapes were displayed in woven mesh plastic bags with holes in them. This was a dangerous condition in that individual grapes could fall through the holes onto the floor of the store. I know from my experience as a shopper, and watching other customers, that customers normally lift produce items for inspection before buying. I know that people will inspect the grapes to see if they are fresh and not bruised or overripe. I believe that in this inspective process it would be easy for grapes to fall onto the floor.

At the time of my fall, the grapes were positioned for display on a counter slanted up where loose grapes could easily fall onto the floor. The grapes were positioned in the direct path of shoppers who were pushing shopping carts. It would be hard for shoppers to see any small grapes that had fallen onto the floor.

There were no protection mats in the aisles of the produce section. These were added after I fell. If protection mats had been on the aisle when I stepped on the loose grapes on the floor, I would have not slipped and fallen and hurt myself so badly. Even if I had slipped and fallen, a mat would have cushioned my fall.

At the time I fell, the area of the floor where the grapes had fallen was slick and very dirty. It would have been very hard for any person to have noticed small grapes on the floor.

The grapes on the floor were light green in color and hard to see. The floor was very dirty. After the fall, my pants were very dirty from the fall, and it was obvious that the dirt came from the floor.

I realize that a store like Price Chopper cannot have an employee watching the produce aisles twenty-four hours of every day. I also know that it is common knowledge to shoppers and the store personnel that people pick up produce items for inspection and that it is common for produce items to fall on the floor. I believe with a little bit of precaution in the placement of the grapes on display, the use of solid plastic bags or bags with tiny holes, and the use of non-slip floormats, accidents such as mine could be easily prevented.

I am also aware that after my fall, Price Chopper stopped using woven mesh plastic bags with holes in them for the display and sale of grapes.

In its reply brief in support of its motion for summary judgment, appellee submitted the affidavit of Seth Maxwell, assistant store director on the date appellant fell. He noted that it was appellee's policy to keep the floors clean at all times. Maxwell stated that he was in the produce area of the store within an hour prior to appellant's fall, pursuant to the store's policy requiring hourly inspections, and that the grape was not on the floor at that time. Maxwell concluded that the grape on which appellant slipped could not have been on the floor for more than a matter of minutes.

The circuit court granted appellee's motion for summary judgment on August 10, 2004. It also denied appellant's subsequent motion to set aside summary judgment on September 1, 2004. This appeal followed.

Discussion

Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. O'Marra v. Mackool, 361 Ark. 32, 204 S.W.3d 49 (2005); Riverdale Dev. Co. v. Ruffin Bldg. Sys. Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). The burden of sustaining a motion for summary judgment is on the moving party. O'Marra v. Mackool, supra; Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the nonmoving party must meet proof with proof and demonstrate the existence of a material issue of fact. O'Marra v. Mackool, supra; Pugh v. Griggs, supra. We determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered, viewing the evidence in the light most favorable to the nonmoving party, and resolving all doubts and inferences against the moving party. O'Marra v. Mackool, supra; George v. Jefferson Hosp. Ass'n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our review is not limited to the pleadings, but also focuses on the affidavits and other documents filed by the parties. Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003); Brown v. Wyatt, 89 Ark.App. 306, 202 S.W.3d 555 (2005).

Before determining whether appellant has presented a prima facie case sufficient to warrant denial of appellee's motion for summary judgment, we must make a determination of what evidence is properly before this court. Rule 56(e) of the Arkansas Rules of Civil Procedure requires that an affidavit provided for or against a motion for summary judgment be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. In reviewing the motion for summary judgment, we do not consider appellant's statement, "friends and relatives . . . have seen loose grapes on the floor in the produce section." That statement was not based on personal knowledge, and it is nothing more than inadmissible hearsay. As such, it should not be...