Love v. Hardee's Food Systems Inc.

• Decision Date: 02 May 2000
• Citation: 16 S.W.3d 739
• Parties: (Mo.App. E.D. 2000) . Jason Love, Plaintiff/Respondent, v. Hardee's Food Systems, Inc., Defendant/Appellant. Case Number: ED76576 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

16 S.W.3d 739 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jason Love, Plaintiff/Respondent, v. Hardee's Food Systems, Inc., Defendant/Appellant.

Case Number: ED76576

Missouri Court of Appeals Eastern District

Handdown Date: 05/02/2000

Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer

Counsel for Appellant: Sanford Goffstein and Lori R. Koch

Counsel for Respondent: Todd N. Hendrickson

Opinion Summary: Hardee's appeals from judgment on a jury verdict in Jason Love's favor for injuries when he slipped and fell in a water in the restroom of a Hardee's restaurant. Hardee's challenges the sufficiency of the evidence to support a finding that it had actual or constructive notice of water on the floor.

AFFIRMED.

Division Two holds: 1. The accident took place in the restaurant's restroom provided for the use of employees and customers. The cause of the accident was water, which is provided in the restroom. The restaurant owner could reasonably foresee that anyone using the restroom would use the tap water provided in the restroom and could spill, drop, or splash water on the floor. Accordingly, the restaurant owner was under a duty to use care to guard against danger from water on the floor. 2. Substantial evidence supported submissibility on the issue of constructive notice. There was evidence from which the jury could infer that: a) the water on the floor came from the use of the tap water provided in the restroom; b) the water on the floor, if caused by non-employee, was on the floor at least 50 minutes; c) employees had the opportunity to observe the hazard; d) the maintenance man who was supposed to check and clean the restroom every hour did not do so in the 2 hours and 50 minutes before the accident; e) the restroom was not checked or inspected by any employee charged with that responsibility during the same time period.

Opinion Author: Kathianne Knaup Crane, Presiding Judge

Opinion Vote: AFFIRMED. R. Dowd, Jr., and Sullivan, JJ., concur.

Opinion:

Defendant appeals from a judgment entered on a jury verdict in plaintiff's favor for injuries plaintiff received when he slipped and fell in a puddle of water inside the restroom doorway in one of defendant's restaurants. Defendant challenges the sufficiency of the evidence to support a finding that defendant had actual or constructive notice of the water on the restroom floor. We affirm.

At about 3:15 p.m. on November 15, 1995, plaintiff, Jason Love, and his mother, Billye Ann Love, went to the Hardee's Restaurant in Arnold, Missouri, which is owned by defendant, Hardee's Food Systems, Inc. There were no other customers in the restaurant between 3:00 p.m. and 4:00 p.m., but two or three workmen were in the back doing construction. The workmen reported that they did not use the restroom and did not see anyone use the restroom. After eating his lunch, plaintiff, who was wearing rubber-soled boat shoes, went to use the restroom. He opened the restroom door, took one step in, and, upon taking his second step, slipped on water on the restroom floor. Plaintiff fell backwards, hit his head, and felt a shooting pain down his right leg. He found himself lying in an area of dirty water, which soaked his clothes. There were no barricades, warning cones, or anything else that would either restrict access to the bathroom or warn of the danger.

Plaintiff crawled up to the sink to pull himself up and made his way back to the table and told his mother that his back and leg were "hurting pretty bad." His mother reported the fall to another employee. Plaintiff's mother went back to the men's restroom and looked at the water on the floor. She observed that the water was dirty. The restaurant supervisor came out and interviewed plaintiff and viewed the water in the restroom. The supervisor told plaintiff's mother that the restaurant manager was at home and, at trial, testified that he called the restaurant manager at home to advise him of the accident and receive instructions. The supervisor then filled out an accident report form, which reported that the accident occurred at 3:50 p.m. The supervisor testified that the water appeared to have come from someone shaking his hands after washing them. The supervisor told plaintiff he could not recall the last time the restroom had been checked. Plaintiff was taken to a hospital emergency room. As a result of his injuries, plaintiff underwent two back surgeries, missed substantial time from work, and suffered from continuing pain and limitations on his physical activities.

Defendant had a policy requiring that the restroom was to be checked and cleaned every hour by a maintenance man. The maintenance man was scheduled to work until 3:00 p.m., but normally left at 1:00 p.m. The supervisor could not recall whether the maintenance man left at 1:00 p.m. or 3:00 p.m. on November 15. The time clock activity report would show when the maintenance man clocked out, but defendant was unable to produce the time clock report for November 15.

It was also a store policy that whenever employees cleaned the tables, they would check the restroom. The restrooms were used by customers and employees. If an employee had to use the restroom, then that employee was also supposed to check the restroom. The restaurant supervisor did not ask if any employees had been in the restroom, or if they had checked it in the hour prior to the accident, and did not know if the restroom was actually inspected or cleaned at 3:00 p.m.

The restaurant had shift inspection checklists on which the manager would report on the cleanliness of the restrooms and whether the floors were clean and dry. However, the checklists for November 15 were thrown away. The manager of the Arnold Hardee's testified with respect to the shift inspection checklists:

A. We pin [them] up on our corkboard for the day.

Q. Then what do they do with them after that?

A. Throw 'em away.

Q. Even if there's been an accident on that shift you throw 'em away?

A. Yes.

Q. So the only written record of when somebody went through and looked at that restroom, you pin up on the corkboard and even if there's an accident on a shift, where somebody slips and falls, you throw that away?

A. Yes. I mean if it happened just before an accident we would save it, but I mean the checklist, we only do like three, four times a day at the most.

Plaintiff subsequently filed the underlying lawsuit against defendant to recover damages for negligence. The jury returned a verdict in plaintiff's favor in the amount of $125,000. The trial court denied defendant's motion for judgment notwithstanding the verdict and entered judgment on the verdict.

For its sole point on appeal, defendant contends that the trial court erred in denying its motions for directed verdict and its motion for judgment notwithstanding the verdict. It argues that plaintiff failed to make a submissible case of negligence because plaintiff failed to prove that defendant had actual or constructive notice of the water on the restroom floor in that there was no evidence showing the source of the water or the length of time the water had been on the floor.

A motion for a directed verdict at the close of all the evidence and a motion for judgment notwithstanding the verdict present the same issue: whether plaintiff made a submissible case. Kimbrough v. J.R.J. Real Estate Invs., Inc., 932 S.W.2d 888, 889 (Mo. App. 1996). To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability. Id.

"Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case." Hurlock v. Park Lane Medical Ctr., Inc., 709 S.W.2d 872, 880 (Mo. App. 1985). Whether evidence in a case is substantial and whether inferences drawn are reasonable are questions of law. Id. In determining whether a plaintiff has made a submissible case, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. Steward v. Goetz, 945 S.W.2d 520, 528 (Mo. App. 1997). We presume that plaintiff's evidence is true. Id. We disregard any of defendant's evidence which does not support plaintiff's case. Id. We will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Kimbrough, 932 S.W.2d at 889. However, we do not supply missing evidence or give a plaintiff the benefit of unreasonable, speculative, or forced inferences. Id. The evidence and inferences must establish every element and not leave any issue to speculation. Id.

In order to have made a submissible case, plaintiff had to show that defendant knew or, by using ordinary care, could have known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and plaintiff sustained damage as a direct result of such failure. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 443-44 (Mo. banc 1998).

"In order to establish constructive notice, the condition must have existed for a sufficient length of time or the facts must be such that the defendant should have reasonably known of its presence." Elmore v. Wal-Mart Stores, Inc., 812 S.W.2d 178, 180 (Mo. App. 1991). Cases prior to the Missouri Supreme Court's decisions in Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 781 (Mo. banc 1989) and Moss v. National Super Mkts., Inc., 781 S.W.2d 784 (Mo. banc 1989) placed great emphasis on the length of time the dangerous condition had been present and held...