King v. W.A. Brown & Sons, Inc.

• Citation: 585 So.2d 10
• Parties: Mildred KING and Bobby Lee King v. W.A. BROWN & SONS, INC. 1900407.
• Decision Date: 28 June 1991
• Court: Supreme Court of Alabama

Page 10

585 So.2d 10

Mildred KING and Bobby Lee King v. W.A. BROWN & SONS, INC.

1900407.

Supreme Court of Alabama.

June 28, 1991.

Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellants.

John S. Morgan, James C. Stivender and F. Michael Haney of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.

HORNSBY, Chief Justice.

On November 30, 1987, Mildred King and her husband Bobby Lee King sued Spartan Food Systems, Inc. ("Hardee's"), ¹ and W.A. Brown & Sons, Inc. ("Brown & Sons"). Mildred King sought damages for injuries she claimed to have received when she slipped and fell in a walk-in cooler manufactured by Brown & Sons, while she was working at a Hardee's restaurant. Bobby Lee King alleged the loss of his wife's consortium. The Kings claimed that the cooler was defective and unreasonably dangerous to the user or consumer because, they alleged, water accumulated on the metal floor and caused the floor to become wet and extremely slippery. They said that Brown & Sons negligently designed the cooler and failed to warn the user of the potentially dangerous floor.

This case was tried before a jury, and on March 1, 1990, the jury returned a verdict in favor of Brown & Sons. The court denied the Kings' motion for new trial, and they appealed the judgment entered on the verdict. We affirm.

Mildred King was employed at a Hardee's restaurant located in Rainsville, Alabama. She testified that on December 5, 1985, she arrived for work at 4:00 a.m. and that shortly thereafter she entered the walk-in cooler to get some supplies. She said that as she was leaving the cooler she slipped and fell, and she alleged that as a result of the fall, she suffered a spinal injury, which caused a 21% permanent disability.

At trial, the Kings offered the testimony of O.L. Vance as an expert to testify as to the defective condition of the cooler floor. Vance testified on direct examination that on January 19, 1990, he visited the Hardee's restaurant where Mrs. King was allegedly injured. While there, he conducted a "coefficient of friction test" (using the same shoe that King was wearing when she fell on December 5, 1985) in the area where the injury was said to have occurred.

Vance testified that the purpose of the test was to get a numerical measure of the "slip resistance" between the floor and the shoe. To obtain this measurement he placed a 25-pound weight on the shoe and then used a scale to measure the amount of force required to cause the shoe to slip.

Vance testified that a numerical coefficient of .50 was required for the floor to pass the test and be considered safe. Using this test, Vance arrived at .30 as the numerical coefficient of friction for the cooler floor and .38 for the cooler's floor mat. ² Based on these numbers, Vance testified that the cooler floor was the "most treacherous floor surface that [he had] ever measured with the exception of a wet bathtub," and he said, "It was very dangerous." Based on his test results, Vance concluded that the cooler was manufactured in a defective condition. He further testified that the floor would not have been as dangerous if a skid strip had been used. Although Brown & Sons cross-examined Vance, Brown & Sons offered no expert testimony regarding the "slip resistance" of the cooler floor.

At the close of all the evidence, the Kings requested the following jury instruction:

"[T]he testimony of an expert witness is not binding upon the jury unless it is uncontradicted and a subject exclusively within the knowledge of experts. If you are reasonably satisfied that there has been expert testimony which was uncontradicted and on a subject exclusively within the knowledge of experts you are to accept such testimony as binding on that subject."

The trial court refused to charge the jury as the Kings had requested and they properly objected, pursuant to Rule 51, A.R.Civ.P. On appeal, the Kings argue that the trial court erred to reversal; because Vance was the only expert to testify as to the defective condition of the cooler floor, they argue that his testimony was binding on the jury because, they say, it was uncontroverted and exclusively within the knowledge of an expert. We disagree.

The Kings' requested jury charge is a correct statement of Alabama law. See, e.g., Allen v. Turpin, 533 So.2d 515 (Ala.1988); Jefferson County v. Sulzby, 468 So.2d 112 (Ala.1985); Ex parte Blue Cross-Blue Shield of Alabama, 401 So.2d 783 (Ala.1981). It is also the law in Alabama that "[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial." Nunn v. Whitworth, 545 So.2d 766, 767 (Ala.1989). If an objection to a jury charge is properly preserved for review on appeal, this Court will "look to the entirety of the trial court's charge to see if there was reversible error." Nelms v. Allied Mills Co., 387 So.2d 152, 155 (Ala.1980). Reversal is warranted only when the error is considered to be prejudicial. Underwriters Nat'l Assurance Co. v. Posey, 333 So.2d 815, 818 (Ala.1976).

The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So.2d 793 (Ala.1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala.1988). This presumption is strengthened by the trial court's denial of a motion for a new trial.

"Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust."

Campbell v. Burns, 512 So.2d 1341, 1343 (Ala.1987) (citation omitted). See also Ashbee v. Brock, 510 So.2d 214 (Ala.1987); Jawad v. Granade, 497 So.2d 471 (Ala.1986); White v. Fridge, supra.

The Kings argue on appeal that Vance's testimony was uncontroverted. However, the mere fact that Brown & Sons did not offer an expert of its own does not render Vance's testimony uncontroverted, because an expert's testimony on direct examination can be controverted on cross-examination. See, e.g., Police & Firemen's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So.2d 261 (1953); First Nat'l Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So.2d 284 (1955); Union Central Life Insurance Co. v. Scott, 286 Ala. 10, 236 So.2d 328 (1970).

The record in this case shows that Vance's testimony was far from uncontroverted. Vance's testimony on cross-examination cast doubts on the reliability and accuracy of the numerical coefficient test that he had performed on the cooler floor and which was the basis of his opinion that the cooler was defective. On direct examination he testified that the test he performed on the cooler floor was reliable and that it accurately measured the slippery nature of the floor and the floor mat. Based on the results of that test, Vance gave the opinion that the cooler was defective and unreasonably dangerous.

However, on cross-examination he testified that the test was conducted between 1:15 and 2:00 p.m. instead of shortly after 4:00 a.m., the time when Mrs. King allegedly fell. The cooler floor was cleaned at night; thus, it would have been dirtier in the afternoon when Vance conducted his test than in the early morning when Mrs. King fell. Vance also testified that he did not have any published standards to guide him in making a decision as to the "slipperiness" of the floor and that he had never tested a floor before. Vance also admitted that the shoe he used in the test was five years old and that its slip resistance would decrease with time. Furthermore, Vance could not establish any relative meaning for the numerical values he assigned to the cooler floor:

"Q. [By Brown & Sons' attorney] Have you ever tested a shoe like that on ice?

"A. [By Vance.] No. sir.

"Q. Well, don't we have to have some idea what we're talking about relatively?

"A. I have given you relative values, I think.

"Q. Okay. But could you tell us, just so we understand what you're talking about in terms of relationship between things, what kind of number you would be talking about with that shoe on ice?

"A. Less than .3.

"Q. All right, how much less than .3?

"A. I won't give numerical values unless I'm permitted to actually perform the test.

"Q. But you've never done that so that you would have some idea in your mind the way to be able to compare things?

"A. That is the case, I have not tested ice.

"Q. Have you ever tested that shoe on what you call a skid strip?

"A. No, sir.

"Q. All right. Do you have any idea of what...