Hunt v. National Super Markets, Inc., No. 58103

• Decision Date: 23 April 1991
• Docket Number: No. 58103
• Citation: 809 S.W.2d 157
• Parties: Carl HUNT Plaintiff-Respondent, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 157

809 S.W.2d 157

Carl HUNT Plaintiff-Respondent, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.

No. 58103.

Missouri Court of Appeals,

Eastern District,

Division One.

April 23, 1991.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

May 15, 1991.

James A. Gottschalk, St. Louis, for defendant-appellant.

Stuart Cofman, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

This "slip and fall" case arises out of injuries plaintiff/respondent, Carl Hunt [hereinafter Hunt] sustained when he fell in the aisle while grocery shopping at a super market. Hunt filed suit on July 2, 1987, in the Circuit Court of the City of St. Louis, against defendant/appellant, National Super Markets, Inc. [hereinafter National]. On December 7, 1989, a jury returned a verdict in favor of Hunt for $25,000, finding Hunt eighteen percent at fault and National eighty-two percent at fault. The trial judge subsequently reduced the total damage award to $20,500.

Because our review involves determining whether Hunt has presented sufficient evidence to submit the question of National's negligence to the jury, we must view the evidence presented at trial in the light most favorable to Hunt, giving him the benefit of all reasonable inferences to be drawn therefrom. Prier v. Smitty's Supermarkets, Inc., 715 S.W.2d 579, 580 (Mo.App.1986). However, we are not required or permitted to supply missing evidence or to give plaintiff the benefit of unreasonable, speculative, or forced inferences. Hayes v. National Super Markets, Inc., 612 S.W.2d 819, 821 (Mo.App.1981).

The evidence reveals that on August 31, 1984, at approximately 8:00 p.m., Hunt and his wife entered the National store at 3830 South Grand Avenue in St. Louis, Missouri. Hunt and his wife each obtained their own grocery cart and began their shopping. They both noticed that there were many other customers in the store. After walking through most of the other aisles they entered the frozen food aisle from the front of the store and proceeded towards the back of the store. Hunt was approximately five to ten feet behind his wife and he had several items in his cart which blocked his view of the floor in front of him.

Two-thirds of the way down the aisle, Hunt slipped and fell, twisting his leg underneath him in such a way that he was unable to stand up on his own. Viewed from the front of the store, Hunt fell approximately three feet from the right side display cases which contained frozen vegetables.

Hunt remained on the floor after he fell, calling to his wife for help. After realizing she would be unable to lift Hunt by herself, she went for assistance. An unidentified security guard was standing approximately 35-40 feet away from where Hunt fell and Hunt's wife enlisted his help in picking up her husband. The unidentified security guard was employed by a security company which in turn was contracted with National to provide security in its stores during business hours.

Hunt and his wife testified at trial that a light blue substance caused the fall but neither could positively identify the substance. The substance covered approximately one square foot of the floor area and Hunt's wife characterized it in her testimony as "melting." Neither Hunt nor his wife were able to testify as to the origin of the substance or how long it was present on the floor before Hunt fell. Hunt and his wife also did not observe any other substances on the aisle floor.

After the security guard helped Hunt to his feet, the guard called to a young male employee of National who appeared with a broom to clear the area of the fall. Hunt's wife testified that she overheard the unidentified guard state to the unidentified employee: "I thought I told you to clean up this mess." Hunt testified that his recollection of this statement by the unidentified guard to the unidentified employee was: "I asked you before, you had something on the floor to go get something." National made a timely objection to both statements as being without a proper foundation and inadmissible hearsay. The trial court overruled these objections. Neither the unidentified security guard nor the unidentified National employee testified at trial.

National offered motions for a directed verdict at the close of Hunt's evidence and at the close of all the evidence. The trial court denied these motions. National filed a motion for judgment notwithstanding the verdict and a motion for a new trial. The trial court denied these motions on February 22, 1990. This appeal follows.

National's first point on appeal alleges that Hunt did not make a submissible case of negligence and that the trial court therefore erred in failing to sustain National's motion for judgment notwithstanding the jury's verdict.

The liability of a store owner to a business invitee is based upon the owner's superior knowledge of a defective or dangerous condition upon the owner's premises which results in injury. Ward v. Temple Stephens Co., 418 S.W.2d 935, 938 (Mo.1967). For Hunt to make a submissible case of negligence, he must have established that National had either actual or constructive knowledge of the dangerous condition. Id.; Adams v. National Super Markets, Inc., 760 S.W.2d 139, 141 (Mo.App.1988). Actual knowledge may be inferred from the evidence that an agent or employee knew of the dangerous condition. Taylor v. F.W. Woolworth Co., 592 S.W.2d 210, 211 (Mo.App.1979).

Hunt offered only the two versions of the conversation...