Malaney v. Hannaford Bros. Co.

• Decision Date: 20 August 2004
• Docket Number: No. 02-316.,02-316.
• Citation: 861 A.2d 1069
• Parties: Paulette MALANEY v. HANNAFORD BROTHERS COMPANY.
• Court: Vermont Supreme Court

861 A.2d 1069

Paulette MALANEY v. HANNAFORD BROTHERS COMPANY.

No. 02-316.

Supreme Court of Vermont.

August 20, 2004.

Thomas C. Nuovo of Bauer, Anderson & Gravel, Burlington, for Plaintiff-Appellant.

David Bond of Downs Rachlin Martin PLLC, Burlington, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ.

DOOLEY, J.

¶ 1. Plaintiff Paulette Malaney, who sued defendant Hannaford Brothers Company after she slipped and fell on a grape in the company's grocery store, appeals a jury verdict in favor of defendant. She argues that she was entitled to a directed verdict on the issue of liability, and that the trial court's instructions to the jury were incomplete and erroneous in several respects. We conclude that the trial court committed prejudicial error (1) by endorsing in front of the jury defendant's misleading statement of the law of premises liability during its closing argument, and (2) by giving the jury incomplete instructions on defendant's duty of care. Accordingly, we reverse the jury verdict, and remand the matter for further proceedings.

¶ 2. The accident that led to plaintiff's suit occurred on February 13, 2000. Plaintiff was in the check-out line with her fiance when she remembered one last item that she wanted to purchase. As she passed through the store's produce section to retrieve the item, she slipped on a grape and fell, dislocating her elbow. In October 2000, plaintiff sued defendant, alleging that store employees were negligent in failing to keep the floor free of debris. A two-day jury trial was held in May 2002, resulting in a verdict for defendant. Plaintiff appeals the judgment resulting from that verdict.

¶ 3. Plaintiff first argues that she was entitled to judgment as a matter of law because defendant failed to present any evidence that it took reasonable steps to protect her from the foreseeable dangers associated with selling grapes from a self-service display counter. We disagree.

¶ 4. The parties presented conflicting evidence concerning the extent to which defendant took reasonable measures to protect its customers from potentially hazardous conditions caused by the grape display. Plaintiff elicited evidence indicating that defendant was generally aware of the hazards posed by grapes and had adopted specific procedures to address the hazard, including some that had not been followed. For example, one of defendant's safety bulletins emphasized the importance of using large runners in many areas of the produce department, particularly in front of grapes displays. Plaintiff presented evidence that no such runner was in place at the time she slipped near the grape display.

¶ 5. On the other hand, the store's sweep logs, which were introduced into evidence, indicated that someone had swept near the floral section, close to where plaintiff fell, approximately three hours before the accident. The sweep logs also confirmed the testimony of a store employee that he had conducted spot mops of the produce section approximately one and one-half hours and again five minutes before the accident. The employee testified, however, that although he visually checked the area around the grape display for debris, he was unable at all times to see the floor because of the large number of carts and people in the area.

¶ 6. Both plaintiff and defendant sought directed verdicts, plaintiff arguing that the evidence unequivocally demonstrated defendant's negligence in failing to protect her from a known hazardous condition, and defendant arguing that plaintiff's failure to show how long the grape she slipped on had been on the floor entitled the store to judgment as a matter of law. The trial court denied both motions, ruling that plaintiff had presented sufficient evidence to create a jury question as to whether the steps taken by the store were reasonable given the hazard posed by the grape display, and that defendant had presented evidence from which the jury could have concluded that the store had taken reasonable steps to protect its customers.

¶ 7. In support of her view that she was entitled to a directed verdict on liability, plaintiff contends that Vermont law required defendant to be extra vigilant in protecting its customers from the obvious and known hazard posed by the grape display, particularly on the day she was injured, given that the store was crowded and grapes were on sale, resulting in customers handling hundreds of pounds of grapes. In plaintiff's view, defendant failed to present evidence to demonstrate that the store exhibited the extra vigilance required under these circumstances. Viewing the evidence cited above most favorably to defendant, however, we conclude that the trial court acted well within its discretion in leaving it for the jury to determine whether, considering all of the circumstances, defendant had taken reasonable steps to address the hazard posed by the grape display. See Brueckner v. Norwich Univ., 169 Vt. 118, 122, 730 A.2d 1086, 1090 (1999)(judgment as matter of law may be granted when, viewing evidence most favorably to nonmoving party, there is insufficient evidentiary basis for reasonable jury to find for nonmoving party).

¶ 8. Next, plaintiff argues that the trial court committed reversible error both by refusing to sustain plaintiff's objection to defendant's incorrect statement of the law made during its closing argument, and by failing to give more specific instructions on the duty owed by defendant under the circumstances of this case. These arguments require us to examine our law on premises liability with respect to retail establishments. Under traditional negligence law, the mere existence of a defective condition in a store — including a transitory condition such as a spill — does not make the store liable for an injury caused by the condition unless store employees knew or should have known of the condition. See D. Zupanec, Annotation, Store or Business Premises Slip-And-Fall: Modern Status of Rules Requiring Showing of Notice of Proprietor of Transitory Interior Condition Allegedly Causing Plaintiff's Fall, 85 A.L.R.3d 1000, 1003 (1978). Hence, if a plaintiff is unable to prove that the store or its employees created, or otherwise had actual knowledge of, the dangerous condition, the plaintiff must demonstrate "that the condition existed for such a length of time that in the exercise of reasonable care the proprietor should have known of the condition." Id. at 1004.

¶ 9. This Court followed that traditional rule in Dooley v. Economy Store, Inc., 109 Vt. 138, 194 A. 375 (1937). There, a customer won a jury verdict after slipping on an allegedly defective step in a retail store and injuring herself. On appeal, we held that the store could not be liable because of the absence of any evidence showing either that the store actually knew of the defect or that the defect had existed long enough to charge the store with constructive notice of the danger. Id. at 142, 194 A. at 377 ("In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises the condition must have been known to the owner or have existed for such time that it was his duty to know it.").

¶ 10. With the advent of self-service marketing operations in retail stores, however, courts across the country, including this Court, began to modify premises liability law in various ways to reduce or eliminate plaintiffs' burden of proving that the store had actual or constructive notice of the defective condition. See Jackson v. K-Mart Corp., 251 Kan. 700, 840 P.2d 463, 467-70 (1992) (noting broad trend toward modifying premises liability law in retail establishments and discussing various ways in which traditional rule has been altered); see also Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 324-29 (Fla.2001) (superseded by statute) (noting "modern jurisprudential trend of departing from the traditional rule of premises liability when a plaintiff slips and falls on a transitory foreign substance," and discussing various approaches taken by different courts); Cobb v. Skaggs Cos., 661 P.2d 73, 76 (Okla.Ct.App.1982) (noting that "self-service marketing method has spawned a growing trend of cases that dispense with the traditional notice requirement in such business settings as discount department stores, restaurants, and supermarkets"); D. Zupanec, supra, 85 A.L.R.3d at 1004-06 (citing elimination of requirement that injured customer prove store owner's actual or constructive knowledge of dangerous transitory condition as example of broad trend toward liberalization of premises liability law). In modifying the traditional rule, these courts reasoned that while self-service operations give store customers additional freedom to browse and select the merchandise they desire, they also pose foreseeable hazards to those customers, who are generally less careful than store employees in handling the merchandise. See D. Zupanec, supra, 85 A.L.R.3d at 1004-05 n. 15. Essentially, the courts have recognized that stores engaging in foreseeably hazardous self-service operations may be deemed to have constructive notice of those conditions when they result in injury. Id.; see Cobb, 661 P.2d at 76 (because self-service marketing practices create dangerous condition, store is deemed to have notice of condition).

¶ 11. Early on, in Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796 (1970), this Court joined the trend toward modifying premises liability law in the context of retail stores displaying and selling goods through self-service operations. In that case, a customer who injured herself after slipping on a banana in a grocery store won a jury verdict, and the store appealed, arguing, in relevant part, that it was entitled to a directed verdict because the customer had failed to establish the store's actual or constructive notice of the existence of the banana on the floor. We rejected the store's...