Martin v. Wal-Mart Stores, Inc.

• Decision Date: 29 November 1993
• Citation: 956 F.2d 278
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 278

956 F.2d 278

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Debra Ann MARTIN, Plaintiff-Appellant, v. WAL-MART STORES, INC., a foreign corporation, Defendant-Appellee.

No. 9-5245.

United States Court of Appeals, Tenth Circuit.

Feb. 6, 1992.

Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges. ^*

ORDER AND JUDGMENT ^**

BALDOCK, Circuit Judge.

Plaintiff-appellant Debra Ann Martin brought this action to recover damages for personal injuries sustained when she fell in the restroom of a department store operated by defendant Wal-Mart Stores, Inc., in Tulsa, Oklahoma. The case proceeded to trial, and the jury returned a verdict in favor of plaintiff. Defendant then filed a motion for judgment n.o.v., which was granted and this appeal followed. For the reasons set forth below, we affirm.

On the date of her accident, plaintiff and her daughter arrived at defendant's store at approximately 3:00 p.m. The store had been open since 12:00 noon. While in a restroom facility at about 3:15 p.m., plaintiff slipped on a liquid substance located on the tile floor as she was exiting a restroom stall. Defendant's store had a policy which required a "safety sweep" of the store "at least once every hour," but this policy had not been observed with respect to the restroom where plaintiff fell. Instead, that restroom was last cleaned at closing time the night before the accident.

At trial, defendant introduced deposition testimony of Michelle Cantrell, who, on the date of plaintiff's accident, was employed at defendant's store. Ms. Cantrell testified that she was in the restroom in question using the facilities ten to fifteen minutes before the accident. Tr. 206. According to Ms. Cantrell, she observed, in accordance with her assigned job duties, the floor area of the restroom to determine if there were any obstruction that would cause an accident and did not notice any water in the area where plaintiff fell.

The district court, in granting defendant's motion for judgment n.o.v., concluded that "the testimony of witness [Ms.] Cantrell was not rebutted ... [and] established that no foreign matter, such as that upon which plaintiff fell, was on the floor approximately 15 minutes before plaintiff fell so it remains to speculation and conjecture, and the evidence necessary to establish an inference of negligence is lacking." Appellant's App. at 4. Plaintiff appeals arguing that there was substantial evidence supporting the jury's verdict, i.e., no regular cleaning of the restroom, and the district court, in granting defendant's motion for judgment n.o.v., substituted its judgment of Ms. Cantrell's credibility for the jury's.

Our review of rulings on motions for judgment n.o.v. is de novo. Guilfoyle ex rel. Wild v. Missouri, Kan. & Tex. R.R., 812 F.2d 1290, 1292 (10th Cir.1987). Judgment n.o.v. is appropriate only when the evidence, taken in the light most favorable to the nonmoving party, points but one way, in favor of the moving party. Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.1988). In determining whether the grant of a motion for judgment n.o.v. was appropriate, the court must view the evidence and indulge all reasonable inferences in favor of the party opposing the motion and cannot weigh the evidence or pass upon the credibility of witnesses. Id.

As we construe Oklahoma's "slip and fall" cases, plaintiff had available two primary theories to hold defendant liable for her injuries. First, plaintiff could show that the condition which caused her fall in the restroom was created by a negligent act of defendant or its employees. Fuller v. Rahill, 496 P.2d 785, 788-89 (Okla.1972); Safeway Stores, Inc. v. Feeback, 390 P.2d 519, 520-21 (Okla.1964). Second, plaintiff could show that defendant allowed a dangerous condition to remain in the restroom, i.e., defendant had actual knowledge of the condition, see Rogers v. Hennessee, 602 P.2d 1033, 1035 (Okla.1979), or the condition existed for such a period of time that constructive knowledge of it could be attributed to defendant, see id.

Plaintiff does not argue that defendant created the condition in the restroom or that defendant had actual knowledge of the condition. Moreover, plaintiff does not assert that the condition existed in the restroom for a legally significant length of time. Instead, plaintiff's only theory is that she is entitled to prevail based on defendant's failure to inspect at regular intervals a restroom which, the parties agree, was clean before defendant's store opened for business.

There is a line of Oklahoma cases which have gradually developed and fleshed out an exception to the traditional requirement of actual or constructive notice in slip and fall cases. See White v. Wynn, 708 P.2d 1126, 1129 (Okla.1985); Lingerfelt v. Winn-Dixie Tex., Inc., 645 P.2d 485, 487-89 (Okla.1982); Kassick v. Spicer, 490 P.2d 251, 253-54 (Okla.1971); Safeway Stores, Inc. v. Keef, 416 P.2d 892, 894-95 (Okla.1966); J.C. Penney Co. v. Barrientez, 411 P.2d 841, 848 (Okla.1965) (citing Mahoney v. J.C. Penney Co., 377 P.2d 663, 671-74 (N.M.1962)); Glover v. Montgomery Ward & Co., 536 P.2d 401, 404-08 (Okla.Ct.App.1974). Plaintiff selectively cites to the Oklahoma courts' earliest attempts to articulate a rationale and rule for liability without satisfaction of the traditional notice requirement. However, it was not until the White and Lingerfelt cases that the Oklahoma Supreme Court had clearly worked out the contours and conditions of the exception. It is now clear that the exception is premised on the foreseeability of dangerous conditions resulting from the operations carried out on the invitor's premises. When the operating methods of an invitor are such that dangerous conditions, such as spills by patrons, are recurring or easy to anticipate the invitee need not show notice of the specific condition created. See, e.g., White, 708 P.2d at 1129 ("[W]hen an invitee has shown an invitor's self-service merchandising and marketing methods were such to create the reasonable probability that a dangerous condition would occur, the invitee need not prove notice of the specific condition thus created."); Lingerfelt, 645 P.2d at 488 ("When a shopper has shown that circumstances were such as to create a reasonable probability that a dangerous condition ... would occur, the invitee need not also prove that the business proprietor had notice of the specific hazard ... in order to show the proprietor breached his duty of due care to the invitee."). The holdings in White and Lingerfelt are in accordance with opinions in other jurisdictions. Pimentel v. Roundup Co., 666 P.2d 888, 892-93 (Wash.1983); Safeway Stores, Inc. v. Smith, 658 P.2d 255, 257-58 (Colo.1983); Bloom v. Fry's Food Stores, Inc., 636 P.2d 1229, 1232 (Ariz.Ct.App.1981); Wollerman v. Grand Union Stores, Inc., 221 A.2d 513, 515 (N.J.1966).

The earlier Oklahoma Supreme Court cases discussing elimination of the notice requirement did not expressly rely on the foreseeability principles ultimately clarified in White and Lingerfelt. However, the factual circumstances presented in those cases clearly fall within the ambit of the White and Lingerfelt mode-of-operation analysis. See Kassick, 490 P.2d at 253 (slip on fruit in a self-service grocery store, classic setting for application of mode-of-operation exception); Keef, 416 P.2d at 895 (same). More importantly, the legal theory of liability applied in those cases, "negligent failure to inspect," see Kassick, 490 P.2d at 253-54; Keef, 416 P.2d at 894, is entirely consistent with the mode-of-operation analysis. In order for a failure to inspect to constitute negligence, the consequences of the failure to inspect, i.e., the occurrence of a dangerous condition, must have been foreseeable. Trett v. Oklahoma Gas & Elec. Co., 775 P.2d 275, 279 (Okla.1989). The mode-of-operation analysis in White and Lingerfelt simply explains the factors which Oklahoma courts have recognized as bearing on the foreseeability of a dangerous condition. ¹

In this case, plaintiff presented no evidence whatsoever regarding defendant's pertinent operating methods, such as, e.g., defendant's sale of spillable merchandize permitted into the restrooms, the peculiar nature or arrangement of defendant's restroom facilities, or prior similar occurrences, which would indicate that dangerous conditions in defendant's restrooms were readily foreseeable. Defendant's operating methods are not matters that we or the trier of fact can speculate on. In essence, plaintiff established nothing more than a fall caused by an unidentified and unexplained substance in an ordinary public restroom. There are no Oklahoma cases waiving the traditional notice requirement on comparable facts. ²

The case relied upon primarily by Plaintiff, Glover, is simply an early statement of the White and Lingerfelt mode-of-operation exception to the traditional notice requirement. In Glover, the plaintiff slipped on a clear substance while walking near the cafeteria of a store. The record revealed that drinks were sold in the cafeteria and drinks called "Iceys" were sold in a different part of the store. There was frequent spillage throughout the store, especially by children with "Iceys." The court concluded that the evidence was sufficient to submit the question of the store's negligence to the jury even though the plaintiff could not prove how long the substance had been on the floor.

Under the principles articulated in White and Lingerfelt, the evidence in Glover that the store provided drinks to customers and frequent spillage had occurred in the past...