Derrick v. Mexico Chiquito, Inc.

• Decision Date: 11 November 1991
• Docket Number: No. 91-165,91-165
• Citation: 307 Ark. 217,819 S.W.2d 4
• Parties: Patricia Faye DERRICK, Appellant, v. MEXICO CHIQUITO, INC., Appellee.
• Court: Arkansas Supreme Court

Page 4

819 S.W.2d 4

307 Ark. 217

Patricia Faye DERRICK, Appellant, v. MEXICO CHIQUITO, INC., Appellee.

No. 91-165.

Supreme Court of Arkansas.

Nov. 11, 1991.

Mike Millar, Searcy, for appellant.

Overton Anderson, Little Rock, for appellee.

GLAZE, Justice.

This is a slip and fall case in which the jury returned a unanimous verdict in favor of appellee. The appellant raises two issues on appeal: first, the trial court erred in refusing to allow appellant to photograph the interior of appellee's restaurant; and second, the evidence was insufficient to support the jury's verdict. We affirm.

On June 17, 1987, appellant and her business associate, Mark Dossett, ate dinner at appellee's restaurant. As they were leaving, appellant went to speak to the manager regarding a cracked glass in which she had been served water. She walked from the area of the restaurant near the cash register across a tiled hallway toward the kitchen and restroom area. When she returned down the same hallway, appellant slipped and fell, sustaining severe injuries. Appellant filed suit against the appellee, alleging that her fall and the injuries to her arm were caused by a slippery substance on appellee's floor.

After the incident, the restaurant was remodeled and the area of the fall was carpeted. Appellee's motion in limine was granted, preventing any mention of this renovation to the jury. Appellant made an oral and a written motion for entry onto appellee's premises for the purpose of photographing the scene. Both motions were denied because the conditions in the restaurant had changed and because it did not appear that allowing photographs would be reasonably calculated to lead to admissible evidence. However, the trial court permitted appellant's counsel to enter the restaurant and to make any diagrams or plats they desired.

In reviewing the trial court's denial of appellant's motion to photograph the restaurant, the trial court has a wide latitude of discretion in matters pertaining to discovery. Curbo v. Harlan, 253 Ark. 816, 490 S.W.2d 467 (1973). This court will not reverse the decision of a trial judge in the absence of an abuse of discretion which is prejudicial to the party appealing. Marrow v. State Farm Insurance Co., 264 Ark. 227, 570 S.W.2d 607 (1978).

We conclude that the trial court acted within its discretion in this case. First, appellant made no showing that the taking of photographs would have lead to the discovery of admissible evidence, nor did she show any prejudice would result from the denial of her motion. Her attorneys were allowed to enter the restaurant, and they made a diagram depicting the floor area where appellant had been seated, where she walked, and where she fell. Also, shortly after appellant's fall, appellee took a Polaroid photograph of the hallway area as it appeared at the time appellant sustained her injuries and before any remodeling had been done. The parties introduced the diagram and photograph at trial and had their respective witnesses use them to explain their versions of what occurred. Because these exhibits enabled the appellant to describe and explain her version of the facts to the jury, the trial court cannot be said to have abused its discretion in disallowing appellant to take additional photographs of the same interior of the restaurant after its renovation.

As her second point of appeal, appellant claims that the verdict of the jury is not supported by substantial evidence. Substantial evidence is defined as that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). This court has stated that we must affirm if there is substantial evidence to support the judgment below. Handy Dan Home Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Love v. H.F. Construction Company, 261 Ark. 831, 552 S.W.2d 15 (1977).

The law is well settled that the appellee owes the invitee the duty to use ordinary care to maintain the premises in a reasonably safe condition. Dye v. Wal- Mart Stores, Inc., 300...