Kroger Co. v. Scott

• Decision Date: 12 June 2001
• Docket Number: No. 1999-CA-01981-COA.,1999-CA-01981-COA.
• Court: Mississippi Court of Appeals
• Parties: The KROGER COMPANY, Appellant, v. Loraine SCOTT, Appellee.

809 So.2d 679

The KROGER COMPANY, Appellant, v. Loraine SCOTT, Appellee.

No. 1999-CA-01981-COA.

Court of Appeals of Mississippi.

June 12, 2001.

Rehearing Denied August 21, 2001.

Certiorari Denied March 7, 2002.

William O. Luckett, Jr., Clarksdale, Jonathan Masters, Attorney for Appellant.

Ellis Turnage, Cleveland, Attorney for Appellee.

Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.

THOMAS, J., for the court:

¶ 1. Kroger appeals a jury verdict for Loraine Scott in the sum of $74,000 for a slip and fall injury that occurred in the foyer of the store, asserting the following issues:

I. TRIAL COURT ERRED DENYING KROGER'S MOTION FOR DIRECTED VERDICT.

II. THE DAMAGE AWARD SHOCKS THE CONSCIENCE AND IS A RESULT OF BIAS AND PREJUDICE.

III. "FUTURE DAMAGES" SHOULD NOT HAVE BEEN INCLUDED IN SCOTT'S JURY INSTRUCTION NUMBER FIVE.

IV. TRIAL COURT ERRED IN ALLOWING SCOTT'S PEREMPTORY STRIKES.

V. COUNSEL FOR SCOTT MADE IMPROPER COMMENTS DURING CLOSING ARGUMENTS, DENYING KROGER ITS RIGHT TO A FAIR TRIAL.

VI. FAILING TO ADMIT THE FULL INCIDENT REPORT WAS REVERSIBLE ERROR.

VII. ALLOWING COUNSEL FOR SCOTT TO CROSS EXAMINE STEVE SCHWARTZ REGARDING THE DESIGN ENTRANCE DOOR WAS REVERSIBLE ERROR.

VIII. ALLOWING COUNSEL FOR SCOTT TO QUESTION SCOTT AS TO "WHY SHE WANTS $74,000" IN DAMAGES WAS REVERSIBLE ERROR.

IX. ALLOWING SCOTT TO TESTIFY ABOUT HER PERCEIVED LOSS OF CREDIT STANDING WAS REVERSIBLE ERROR.

Finding no error, we affirm.

FACTS

¶ 2. On March 18, 1996, Loraine and Floyd Scott arrived at Kroger in Cleveland, Mississippi at approximately 9:45 a.m. Ms. Loraine Scott ran ahead of her husband, Mr. Floyd Scott, because it was raining heavily. Ms. Scott waited for Mr. Scott upon reaching the door of the building. The door to the Kroger store is an electronic door which automatically swings open as a customer approaches. As the Scotts entered the store, Mr. Scott yelled "watch it!" as he noticed the wet floor that Ms. Scott was approaching. However, Ms. Scott slipped and fell on the wet floor.

¶ 3. Steve Schwartz, the Kroger store manager, was aware of the rain storm and had been checking the area of the foyer approximately every fifteen minutes for any possible hazards. He made sure that mats were down and caution signs were placed in the foyer area. He also personally mopped the foyer area at approximately 9:30 a.m. However, a mat could not be placed in the floor space in which the automatic swinging door moved. It was in this area that Ms. Scott fell.

¶ 4. Mr. Schwartz was notified soon after Ms. Scott had been injured. He helped Mr. Scott place Ms. Scott in their vehicle. Mr. Scott immediately drove Ms. Scott to the Bolivar Medical Center in Cleveland. Ms. Scott was diagnosed and treated for a bimalleolar fracture to the right ankle. Her total medical costs were $1660.75.

¶ 5. During a visit to the treating doctor, Dr. Barr, following her release in September 1997, Ms. Scott stated that she was doing well and was not having any problems. However, Dr. Barr, who was accepted by the court as an expert witness, further testified that Ms. Scott's ankle will be more susceptible to osteoarthritis as she gets older due to the injury incurred. Ms. Scott also testified that despite her maximum medical recovery, she still experiences pain and swelling in her ankle and requires over the counter pain medication in order to treat such symptoms.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING KROGER'S MOTION FOR DIRECTED VERDICT?

¶ 6. The standard of review for jury verdicts in this state is well established. Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found. Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997). See also Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 76 (Miss.1996)

; Wirtz v. Switzer, 586 So.2d 775 (Miss. 1991); Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985). Our standard for review is de novo in passing on questions of law. Mississippi Farm Bureau Casualty Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss.1996); Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995).

¶ 7. In Jerry Lee's Grocery, Inc., 528 So.2d at 295, our supreme court held that: "the owner or operator of business premises owes a duty to an invitee to exercise reasonable care, to keep the premises in a reasonably safe condition and, if the operator is aware of a dangerous condition, which is not readily apparent to the invitee, he is under a duty to warn the invitee of such condition." Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988).

¶ 8. Further, our supreme court provided the following rule in Fulton v. Robinson Industries, Inc., 664 So.2d 170, 175 (Miss. 1995):

The entire body of slip and fall case law combined with this Court's latest pronouncements on the open and obvious doctrine can be summed up in these black letter conclusions:

(1) if an invitee is injured by a natural condition on a part of the business that is immediately adjacent to its major entrance and exit, then there is a jury question as to the openness and the obviousness of the danger. Goodwin v. Derryberry Co., 553 So.2d 40 (Miss.1989).

(2) if an invitee is injured by a natural condition on a remote part of the business premises, and the danger was known and appreciated by the injured party, then there is no jury question. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646 (Miss. 1988).

(3) if an invitee is injured by an artificial/man-made condition on an adjacent or internal part of the business premises, then there is a jury question as to the openness and obviousness of the danger. Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994); Tate v. Southern Jitney Jungle, 650 So.2d 1347 (Miss.1995); Baptiste v. Jitney Jungle, 651 So.2d 1063 (Miss.1995); Downs v. Choo, 656 So.2d 84 (Miss. 1995).

Fulton, 664 So.2d at 175.

¶ 9. Upon our review of the record herein, we find that the first Fulton scenario applies to the case at hand. Ms. Scott was an invitee, who was injured due to a wet floor in the foyer of Kroger which was immediately adjacent to the major entrance and exit of the store, and the wet condition of the floor was caused by a natural event. Therefore, a jury question existed as to the openness and obviousness of the danger presented by the rain on the floor in the foyer of the Kroger. This question was presented to a jury who returned a verdict for Scott. Similarly, we held in Breland v. Gulfside Casino Partnership, 736 So.2d 446 (Miss.Ct.App.1999), that the first Fulton scenario applied when Breland slipped and fell while declining the casino's outdoor stairway exit which was wet due to a rainstorm. Therefore, we affirm.

II. DID THE DAMAGE AWARD SHOCK THE CONSCIENCE OF THE COURT AND IS IT A RESULT OF BIAS AND PREJUDICE?

¶ 10. The jury's verdict in a civil case is a finding of fact. Edwards v. Ellis, 478 So.2d 282, 289 (Miss.1985). If there is substantial evidence to support the jury award, or if the award is not so large or inadequate as to shock the conscience of the court, or is not the result of bias, passion or prejudice on the part of the jury, this court will not reverse an award of damages. Purina Mills, Inc. v. Moak, 575 So.2d 993, 997 (Miss.1990). See also Odom v. Roberts, 606 So.2d 114, 118 (Miss. 1992)

; Motorola Communications & Elec., Inc. v. Wilkerson, 555 So.2d 713, 723 (Miss.1989). "Even if we think the amount awarded in the verdict is liberal, we are not allowed to supplant our judgment for that of the jury unless we conclude that there was insufficient evidence to support the award of damages or that the verdict was the product of bias, passion or prejudice." Cade v. Walker, 771 So.2d 403, 406 (Miss.Ct.App.2000) (citing South Cent. Bell Tel. Co., Inc. v. Parker, 491 So.2d 212, 217 (Miss.1986)).

¶ 11. The damages awarded in the case at hand do not "shock the conscience of the court." Kroger has not shown that the damage amount awarded was a result of bias, passion or prejudice on the part of the jury. Due to the uncertainty of the monetary value placed on pain and suffering and future damages, we have affirmed damages up to fifty-one times the actual damages shown. Cade, 771 So.2d at 409. See also General Motors Corp. v. Pegues, 738 So.2d 746, 755 (Miss.Ct.App.1998)

(not grossly excessive when damages awarded were nineteen times greater than the actual damages shown). The damages awarded in the case at hand were roughly forty-five times the actual damages. Therefore, we will not reverse this award of damages.

III. SHOULD "FUTURE DAMAGES" HAVE BEEN INCLUDED IN SCOTT'S JURY INSTRUCTION NUMBER FIVE?

¶ 12. Jury instruction number five stated:

You may consider the following facts in determining the amount of damages as has been shown by a preponderance of the evidence, if any.

Z3

(2) Past, present, future physical pain and suffering, if any of Loraine Scott.

Kroger asserts that permitting this jury instruction constituted manifest error due to the fact that no evidence was presented to show that future damages would be suffered. However, Ms. Scott testified that her ankle continues to swell and hurt at times. Dr. Barr also testified that, "any ankle that has suffered a bimalleolar fracture is more susceptible to osteoarthritis in the future."

¶ 13. A similar argument was presented in Illinois Central Railroad Co. v. Clinton, 727 So.2d 731, 736 (Miss.Ct.App.1998), where the appellant argued that the trial court erred in allowing jury instructions pertaining to future damages because the expert witness who testified for the appellee could not predict for certain whether pain and suffering would continue or whether further difficulties would arise. In response to such argument, we held that:

We find no error in the trial court

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