Douglas v. Great Atlantic & Pac. Tea Co.
| Decision Date | 14 October 1981 |
| Docket Number | No. 52782,52782 |
| Court | Mississippi Supreme Court |
| Parties | Mary DOUGLAS v. The GREAT ATLANTIC & PACIFIC TEA COMPANY. |
Gaston H. Hewes, Jr., Gulfport, for appellant.
Bryant & Stennis, Grier J. Gregory, David B. Strain, Gulfport, for appellee.
En Banc.
In the Circuit Court of the First Judicial District of Harrison County, the jury returned a verdict for A & P grocery store, the defendant, in a slip and fall negligence action brought by appellant, Mary Douglas, for damages.
Douglas appeals from the verdict, assigning several errors, combined herein as two.
I. The trial court erroneously refused plaintiff's Instructions 1, 2, 3, 7, 9, and 13.
II. The jury verdict was not supported by the evidence, being against the overwhelming weight of the credible evidence, evincing bias, passion, and prejudice on the part of the jury; and the trial court erred in overruling Douglas' motion for judgment notwithstanding the verdict, or, in the alternative, a new trial.
On July 3, 1979, Mary Douglas went to the A & P in Gulfport to buy two weeks supply of groceries. It being a holiday eve, the store was quite crowded. She had one more aisle to go and was standing near the frozen food case with a basket full of groceries when she slipped and fell on something wet. When she attempted to get up, she experienced a sharp, burning pain.
Curtis Fairley, the manager of the A & P, saw Douglas at about 1:00 p. m. immediately after the accident and observed about a gallon or so of water on the floor adjacent to the frozen food case. He did not know how long the water had been there, but was sure it came from the frozen food case. He prepared an accident report on July 3, describing the defective condition as water on the floor caused by the "frozen food case leaking water on the floor." To Fairley's personal knowledge, the floor had last been cleaned six or seven hours before the accident.
Fairley further testified he walks the aisles about fifteen or twenty times each day, and on the morning of the accident, he walked through the store about 6 to 8 times. He walked aisle nine, site of the accident, about five times and did not notice any water in the aisle. He last walked aisle nine at 11:30 a. m., an hour and a half before Douglas slipped and fell. Prior to July 3, the frozen food case had not leaked.
The porter of the A & P, Bill Hickman, whose duties include sweeping and scrubbing the aisles on the night shift testified he spent six to eight hours on the night of July 2 and the early hours of July 3 sweeping and scrubbing the floors. He observed no water pooling in aisle nine while working and had never seen any in the past. He also testified that water occasionally comes off the frozen food case and collects on the floor, but that it is wiped dry as soon as observed. He also stated the floor should ideally be swept every three hours. Hickman and Fairley both admitted no sweeper's log was kept because of laziness or indifference.
Bobby Beeson, in charge of stocking the frozen food case, testified the case was stocked from 6:30 a. m. to 12:30 p. m. on July 3. The last time he went down aisle nine was 12:10 p. m. Beeson noticed no water pooling in the aisle nor was there a problem with leakage from the frozen food case.
The evidence on damages, not the primary issue on appeal showed Mary Douglas sustained back injuries from her fall in the A & P which required medical care, hospitalization, and absenteeism from work.
This brings us to appellant's assignment of error that Instructions P-1 and P-2, peremptory instructions, were erroneously refused by the trial court. We think, the trial court properly refused these based on the conflicting evidence of negligence. See Butler v. Chrestman, 264 So.2d 812 (Miss.1972). Also much of the evidence is circumstantial and such a case should rarely be taken from the jury. Davis v. Flippen, 260 So.2d 847 (Miss.1972).
We are also of the opinion Instructions P-3, P-7, P-9, and P-13 were correctly refused. These instructions are quoted herein:
JURY INSTRUCTION NO. P-3
The Court instructs the Jury that if you believe by a preponderance of the evidence in this case that the wet floor in the aisle of the A & P on July 3, 1979, created a hazardous condition, and that this condition was created by the Defendant, The Great Atlantic and Pacific Tea Company, or under its authority and if you further believe by a preponderance of the evidence that said condition was the proximate cause of the injuries and damages sustained by the Plaintiff, then you must return a verdict for the Plaintiff, Mary Douglas.
The Court instructs the Jury that if you believe from a preponderance of the evidence in this case that the Defendant, by and through its employees, negligently allowed water to accumulate in the aisle where the Plaintiff was shopping and negligently failed to remove the same from the aisle, and if you further find from a preponderance of the evidence that the water as it was situated in the aisle constituted a hazard to persons using the aisle when shopping and that the Defendant negligently failed to use reasonable care in keeping the aisle dry so that a person exercising reasonable care therein could avoid injury to themselves, and if you further believe from a preponderance of the evidence that the negligence, if any, of the Defendant approximately caused or contributed to the injuries of the Plaintiff, Mary Douglas, then it is the sworn duty of the Jury to return a verdict for the Plaintiff.
The Court instructs the Jury that the Defendant in this case owed a duty to the Plaintiff to exercise reasonable care to see that the portions of the store which the Plaintiff may be expected to use are reasonably safe.
The Court further instructs the Jury that if you believe from a preponderance of the evidence that the wet floor which caused injury to the Plaintiff constituted a hazard to persons using the aisle while shopping, and that said floor condition was created by a negligent act or omission by the Defendant, or one of its employees, or under the Defendant's authority, and if you further believe that such negligence, if any, proximately caused or contributed to the injuries of the Plaintiff, Mary Douglas, then it is your sworn duty to return a verdict for the Plaintiff, regardless of whether the Defendant had knowledge of the fact that the floor was wet.
The Court instructs the Jury that if you believe from a preponderance of the evidence in this case that the Defendant, The Great Atlantic and Pacific Tea Company, through its agents or employees negligently allowed the frozen food counter on aisle nine of its supermarket to leak water onto the aisle prior to the Plaintiff's fall and if you further believe from a preponderance of the evidence in this case that this created an unreasonable...
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