Kmart Corp. v. Larsen, A99A1899.
| Decision Date | 28 September 1999 |
| Docket Number | No. A99A1899.,A99A1899. |
| Citation | 522 S.E.2d 763,240 Ga. App. 351 |
| Parties | KMART CORPORATION v. LARSEN et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Kinney, Kemp, Sponcler, Joiner & Tharpe, F. Gregory Melton, Dalton, for appellant.
Willis, McKenzie & Long, Charles J. Willis, LaGrange, for appellees.
In this premises liability action, Kmart Corporation appeals, following a jury trial, from a judgment in favor of Kathryn and Vernon Larsen, contending the trial court erred by charging the jury on res ipsa loquitur. We affirm.
On appeal from a jury verdict, we construe the evidence to support the jury verdict and judgment. Neal v. CSX Transp., 213 Ga. App. 707(2), 445 S.E.2d 766 (1994). The jury was presented two theories of the case. The shelves fell either as a result of Ms. Larsen, who was 85 years old, having bumped into them or as a result of Kmart's negligence which was inferred by res ipsa loquitur. The evidence showed that the Larsens were shopping at a Kmart store in LaGrange. Walking to the pharmacy, the Larsens encountered five-foot lengths of shelving which were stacked and leaning against the shelving unit, partially blocking the aisle. The Larsens spoke with a Kmart employee, Brenda, who was standing on a step stool rearranging the shelving and hanging clothes. Brenda told the Larsens, who had already passed the stacked shelving, not to proceed down the aisle any further, but to take a different route to the pharmacy. After Ms. Larsen had turned back down the aisle, she felt something hit her on the head, and shelving fell down on and around her. Ms. Larsen suffered various injuries as a result. Ms. Larsen could not recall whether she bumped into the shelving, but she did not think she had. The trial court charged the jury on premises liability, negligence, res ipsa loquitur, and plaintiff's duty of care. The jury found Kmart liable, accepting Ms. Larsen's theory and rejecting Kmart's contention that Ms. Larsen had walked into the stack of shelves.
Kmart challenges the charge on res ipsa loquitur contending that it did not conform to the evidence. We must determine whether the doctrine of res ipsa loquitur is appropriate where Ms. Larsen testified that she did not recall whether she bumped into the shelving, but she did not think she had. Res ipsa loquitur is a rule of evidence to be applied in "`cases where there is no evidence of consequence showing negligence on the part of the defendant.'" Ballard v. Southern Regional Med. Center, 216 Ga.App. 96, 99, 453 S.E.2d 123 (1995); Stapp v. Grand Union Co., 203 Ga.App. 319, 416 S.E.2d 535 (1992). The doctrine authorizes, but does not require, the jury to infer facts from the circumstances in which the injury occurred, thereby filling the evidentiary gap.
(Punctuation omitted.) Ballard, supra at 99(2), 453 S.E.2d 123; Westinghouse Elec. Corp. v. Williams, 173 Ga.App. 118, 325 S.E.2d 460 (1984).
No evidence was produced from which a jury could infer that Ms. Larsen contributed to the incident. Moreover, the shelving was in the exclusive control of Brenda, the Kmart employee who was rearranging the shelves at...
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