Emery v. Wal-Mart Stores, Inc.

• Decision Date: 22 September 1998
• Docket Number: No. 80691,WAL-MART,80691
• Parties: Dennis Wayne EMERY, Respondent/Cross-Appellant, v.STORES, INC., Appellant/Cross-Respondent.
• Court: Missouri Supreme Court

Page 439

976 S.W.2d 439

Dennis Wayne EMERY, Respondent/Cross-Appellant, v. WAL-MART STORES, INC., Appellant/Cross-Respondent.

No. 80691.

Supreme Court of Missouri En Banc.

Sept. 22, 1998.

Rehearing Denied Oct. 20, 1998.

Jeffrey S. Thomsen, St. Louis, for Appellant/Cross-Respondent.

Thomas A. Connelly, St. Louis, for Respondent/Cross-Appellant.

PER CURIAM. ¹

Appellant, Wal-Mart Stores, Inc., appeals the judgment entered in favor of respondent, Dennis Wayne Emery ("plaintiff"), in his negligence action for injuries he sustained when he slipped and fell in a Wal-Mart store. Plaintiff cross-appeals the judgment of the trial court denying his motion for prejudgment interest. The judgment is affirmed.

At the time of the accident, plaintiff was thirty-six years old and lived with his family in Grandin, Missouri. Plaintiff worked as a mechanic for a charcoal plant and also ran his own truck-driving business as a second source of income. On September 19, 1988, plaintiff went to the Wal-Mart store in Poplar Bluff, Missouri, to have a key made. The store was what is often referred to as "self-service," where customers walk up and down the aisles with carts and handle the products themselves. The aisles are three feet wide and are intersected in a grid pattern by wider aisles called action alleys.

After he had finished with his task at the back of the store, he started to walk toward the front of the store. At the time, the store was preparing to close at 9:00 p.m. He went up an action alley and turned into one of the two aisles where pet food products were displayed. As he walked up the aisle, he glanced at the floor and then noticed a store employee directly ahead of him in another department aisle. This employee, Sandra Wawak, was restocking shelves. After taking approximately four steps, plaintiff put his right foot down on dog food causing both feet to come out from under him. As plaintiff fell, he grabbed a shelf in an attempt to catch himself and knocked several cans of cat food on the floor. Plaintiff's effort failed, and he landed on his back on the floor. The middle of plaintiff's lower back came down on some cans of cat food. When he looked at the floor after his fall, he saw several handfuls of dry dog food scattered over a three-foot area in the aisle where he fell. ²

At trial, Tamara Lowe, the store employee in charge of the pet food department that evening, testified pet food spills were common occurrences, due to customers handling the product. The store did not place any mats on the floor in this area, although it did place mats in the live pet aisle where water and pet food spilled making the floor slippery. Instead, the store kept a broom and dustpan in the pet food aisle to hasten clean up of spills. The broom and dustpan were stored behind the stacked bags of dog food, requiring employees to crawl over the bags in order to reach the items.

According to Lowe's testimony, she found a dry pet food spill in the pet food department at 8:20 p.m. on the evening plaintiff fell. Lowe cleaned the spill using the broom and dustpan kept in the aisle. Contrary to store policy, however, Lowe did not look for nor locate the source of the spill. When Lowe left the aisle at 8:40 p.m., no other customers had been in the pet food department. At trial, Lowe testified the spill was in a different aisle from the one in which plaintiff fell and testified the dog food she cleaned up was of a different type than that on which plaintiff slipped. However, Wawak testified she saw Lowe clean up the spill at 8:20 p.m. in the same aisle as plaintiff's fall.

Steven Bost, the assistant manager of the store on duty that night, also testified at trial. He walked through the aisle on his way to see who was in the sporting goods section of the store approximately five minutes before plaintiff fell. Plaintiff was the only person in the area. Bost testified he saw no dog food on the floor of the aisle at that time. He also stated he did not notice Wawak, who was in the aisle arranging merchandise at the time.

Bost further testified about the procedures Wal-Mart had in place to ensure customers' safety. Employees were instructed to watch for spills. If the employee happened upon one, he or she was to stay with the spill until it was cleaned up. In such cases, the employee was to determine the source of the spill, recognizing that if a spill happens once, it can happen again. In addition, stock boys conducted safety sweeps of the store every three hours, during which time the employees looked specifically for spills. Bost testified Wal-Mart had daily meetings about safety considerations.

Immediately after plaintiff fell, he felt pain in his low back and felt "a tingling and a burning numb sensation" down the back of his leg. Wawak was working further down an aisle when she heard cans falling and saw plaintiff lying on the floor. She approached him and asked if he was hurt. Plaintiff responded he was "more embarrassed than anything." The employee told plaintiff to remain sitting while she summoned the manager. The woman returned shortly with Bost. Bost asked plaintiff if he was all right and helped him up off the floor. Plaintiff then sat on a low stack of bags containing dog food for several minutes. Sometime during these events, the cans of cat food and the spilled dog food were cleaned up. After he was notified of plaintiff's fall, Bost searched for a trail of dog food leading to the checkout area, but found no other dog food spills. At trial, Bost, Lowe and Wawak testified they saw only three pieces of dog food on the floor after plaintiff's fall. Plaintiff testified there were several handfuls scattered across the floor.

After resting for a few more minutes, plaintiff left the store, escorted by one of the employees. Plaintiff then drove home, a distance of forty miles, where he honked the horn for his wife to come out to the car. His wife drove him to the emergency room at Lucy Lee Hospital. The medical staff there found plaintiff had numbness in his right hip and muscle spasm in the right lower back. The diagnosis was muscle spasm, for which he was prescribed various painkillers, as well as a contused kidney. Plaintiff missed several weeks of work immediately after the injury, but then continued to work both of his jobs, although he was never free from pain.

Plaintiff continued seeking treatment for his back problems from various doctors over the next six years. This treatment included an MRI scan of the lumbar spine performed at St. Bernard Regional Medical Center in Jonesboro, Arkansas, on February 22, 1989; a CT of the lumbar spine ordered by Dr. E.C. Hansbrough at the Kneibert Clinic in Poplar Bluff on February 24, 1989; an unsuccessful manipulation of the cervical lumbar spine on November 12, 1990; as well as a variety of physical therapy sessions. Finally, still suffering from back pain, plaintiff went to see Dr. Joseph Hanaway, a neurologist. Dr. Hanaway conducted an initial exam of plaintiff's low back on October 7, 1994, and found plaintiff had a flattened lower lumbar region, spasm of the lumbar paraspinal muscles on the right, pain on the right from upper to lower lumbar region, and pain upon straight leg raise. Dr. Hanaway considered these findings to indicate plaintiff had a central herniated disc.

After obtaining and reviewing plaintiff's medical records since the accident, and after conducting a second examination of plaintiff, Dr. Hanaway ordered plaintiff to undergo several repeat tests. Plaintiff had an MRI of his lumbar spine taken on November 28, 1994. The test revealed a disc protrusion, also called a "bulging disc," with spur formation at L3-4. Dr. Hanaway stated the spur formation indicated the disc protrusion had existed for some time.

Plaintiff returned to Dr. Hanaway on May 12, 1995, still complaining of persistent back pain and neck pain. Dr. Hanaway's examination revealed muscle spasm all the way down the lumbar region, which begins approximately six inches above the belt line, as well as other symptoms indicating spinal cord compression. Dr. Hanaway ordered plaintiff undergo further MRI testing to other areas of his back and neck region. This took place on June 2, 1995. These tests revealed a disc herniation at T11-12, which, Dr. Hanaway explained, accounted for the muscle spasm in plaintiff's whole lumbar spine. In addition, the tests revealed multiple bulging discs in the neck. He prescribed painkillers and advised plaintiff to restrict activity and work very carefully. Dr. Hanaway further stated a herniated disc is an operable problem that may rid plaintiff of some of his pain, although the likelihood of success was not high. He believed there was a greater than fifty-percent chance plaintiff could need surgery in the future. Lastly, Dr. Hanaway stated these conditions were caused by plaintiff's fall in Wal-Mart.

Wal-Mart had plaintiff examined by its expert, Dr. Guy H. Frumson. He did not disagree plaintiff suffered from a herniated disc as well as several bulging discs. He rated the likelihood that plaintiff's fall caused the herniated disc as "in between possible and probable." He further opined plaintiff's condition was likely to worsen and that "probably a surgery would be helpful,...."

Plaintiff testified he never had trouble with his back or neck prior to his fall in Wal-Mart. His condition has gotten worse over the period of time since the accident. He testified he had to quit his trucking business from which he earned an average net income of $4,909 for the years 1985-1988. He now goes home from his job at the charcoal plant and goes to bed. He no longer swims, scuba dives, bowls or dances and does little fishing or hunting. He is unable to help around the house, and his relationship with his wife has suffered.

At the conclusion of the case, plaintiff requested damages in the amount of $716,752, which included $105,000 as lost future wages from plaintiff's trucking...