Martin v. Wal-Mart Stores Inc.

• Decision Date: 21 April 1999
• Docket Number: No. 98-3543,WAL-MART,98-3543
• Citation: 183 F.3d 770
• Parties: (8th Cir. 1999) HAROLD MARTIN, APPELLEE, v.STORES, INC., APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 770

183 F.3d 770 (8th Cir. 1999)

HAROLD MARTIN, APPELLEE, v. WAL-MART STORES, INC., APPELLANT.

No. 98-3543

U.S. Court of Appeals, Eighth Circuit

Submitted: April 21, 1999

July 07, 1999

Rehearing and Rehearing En Banc Denied Aug. 17, 1999.

Appeal from the United States District Court for the Eastern District of Missouri.

Before Beam and Hansen, Circuit Judges, and KOPF,¹ District Judge.

Beam, Circuit Judge.

Wal-Mart appeals the district court's denial of its motion for a directed verdict, or in the alternative, motion for a new trial, following a jury trial on Harold Martin's slip and fall action. Wal-Mart asserts that Martin failed to establish that Wal-Mart had either actual or constructive notice of the hazard on the floor; that the jury instructions failed to accurately state Missouri law; and that the jury was prejudiced by improper comments by Martin's counsel during closing arguments. We affirm.

I. BACKGROUND

We present the facts in a light most favorable to the verdict. Harold Martin was shopping in the sporting goods department of Wal-Mart on the afternoon of September 16, 1993. In front of the sporting goods section, in the store's main aisle, called the "action alley," there was a large display consisting of several pallets stacked with cases of shotgun shells. On top of the cases were individual boxes of shells. As Martin walked past the display with his shopping cart, he slipped on some loose shotgun shell pellets² and fell to the floor. Martin lost both feeling and control of his legs. Sensation and control soon returned. However, during the following week, he lost the use of his legs several times, and the paralysis would last for ten to fifteen minutes. Following the last paralytic episode, sensation and control did not return to the front half of his left foot. Martin's doctors have diagnosed the condition as permanent and can offer no treatment.

Just prior to Martin's fall, a Wal-Mart employee walked past the display in the same area where Martin fell. At the time, the sporting goods department should have been staffed with two people, however, only one was in the department. Martin had been in the sporting goods department for ten to fifteen minutes prior to his fall and did not notice anyone handling or tampering with the shotgun shells.

After Martin's fall, the sporting goods clerk searched for the source of the pellets and found a box of shells with one shell missing, and a single shell sitting on top of the display with some of the pellets missing. These were given to his manager. However, Wal-Mart lost the shell and it was unavailable as an exhibit at trial.

II. DISCUSSION

A United States District Court siting in diversity jurisdiction applies the substantive law of the forum state, in this case, Missouri. See First Bank of Marietta v. Hogge, 161 F.3d 506, 510 (8th Cir. 1998). The parties dispute the proper interpretation and application of Missouri law pertaining to slip and fall cases. Prior to 1989, Missouri followed the traditional rule that required a plaintiff in a slip and fall case to establish that the defendant store had either actual or constructive notice of the dangerous condition. See, e.g., Ward v. Temple Stephens Co., 418 S.W. 2d 935, 938 (Mo. 1967). The defendant store is deemed to have actual notice if it is shown that an employee created or was aware of the hazard. See id. Constructive notice could be established by showing that the dangerous condition had existed for a sufficient length of time that the defendant should reasonably have known about it. See id.

In 1989, the Missouri Supreme Court decided Sheil v. T.G.&Y. Stores Co., 781 S.W. 2d 778 (Mo. 1989) (en banc). In Sheil, the court followed the example of Ciminski v. Finn Corp., 537 P. 2d 850 (Wash. App. 1975), and carved out an exception for slip and fall cases in self-service stores. See Sheil, 781 S.W. 2d at 780. In Sheil, a customer was injured when he tripped over a box left in an aisle. There was no evidence regarding what was in the box (other than it seemed heavy for its size), who left the box there, or how long it had been in the aisle. The defendant store asserted that the plaintiff had not made a submissible case because the plaintiff could not establish that an employee placed the box in the aisle (actual notice), or that the box had been there long enough so that the store should have been aware of it (constructive notice). See id. at 779-80. The court held that the plaintiff, because of the nature of the self-service method of operations used by the store, had made a submissible case.

The Sheil court noted that retail store operations have evolved since the traditional liability rules were established. In modern self-service stores, customers are invited to traverse the same aisles used by the clerks to replenish stock, they are invited to retrieve merchandise from displays for inspection, and to place it back in the display if the item is not selected for purchase. Further, a customer is enticed to look at the displays, thus reducing the chance that the customer will be watchful of hazards on the floor. See id. at 780-81. "The storeowner (sic) necessarily knows that customers may take merchandise into their hands and may then lay articles that no longer interest them down in the aisle.... The storeowner, therefore, must anticipate and must exercise due care to guard against dangers from articles left in the aisle." Id. at 780. The risk of items creating dangerous conditions on the floor, previously created by employees, is now created by other customers as a result of the store's decision to employ the self-service mode of operation. Therefore,'"[a]n owner of a self-service operation has actual notice of these problems. In choosing a self-service method of providing items, he is charged with the knowledge of the foreseeable risks inherent in such a mode of operation."' Id. at 781 (quoting Ciminiski, 537 P. 2d at 853. Thus, in slip and fall cases in self-service stores, the inquiry of whether the danger existed long enough that the store should have reasonably known of it (constructive notice) is made in light of the fact that the store has notice that certain dangers arising through customer involvement are likely to occur, and the store has a duty to anticipate them.

Because of this self-service exception, the court held that, contrary to previous cases, "the precise [amount of] time [a dangerous substance has been on the floor] will not be so important a factor. More important will be the method of merchandising and the nature of the article causing the injury." Id. at 780. The amount of time is even less important if there is evidence that employees of the store were regularly in the area where the accident occurred. See Georgescu v. K Mart Corp., 813 S.W. 2d 298, 302 (Mo. 1991) (en banc).

Based upon Missouri law as stated in Sheil, the district court charged the jury in instruction ten that it could find for the plaintiff only if it found that:

"First, there were shotgun pellets on the floor of defendant's store and, as a result, the floor was not reasonably safe, and"

"Second, defendant knew or by using ordinary care could have known of this condition, and"

"Third, defendant failed to use ordinary care to remove the shotgun pellets or warn of them, and"

"Fourth, as a direct result of such failure, plaintiff sustained damage."

The court further instructed the jury that:

"In a 'self service store'³ as that phrase is used in these instructions, the "self service store" is deemed to have actual notice of foreseeable risks of dangers created by merchandise and other foreign substances on the floor whether those dangers are created by store employees or customers."

Wal-Mart argues that the jury instructions did not accurately reflect Missouri law regarding slip and fall cases. "We review the district court's jury instructions for abuse of discretion and on review must determine simply whether the instructions, taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury." Kramer v. Logan County Sch. Dist., 157 F.3d 620, 625 (8th Cir. 1998) We will reverse only if we find that the error affected the substantial rights of the parties. See id.

Wal-Mart argues that the self-service instruction essentially eliminated the second paragraph of instruction ten that Wal-Mart knew or by using ordinary care could have known of the pellets on the floor and directed a verdict for Martin because it allowed the jury to find that Wal-Mart had actual notice of the shot shell pellets on the floor as a matter of law. Martin on the other hand, claims that Sheil does in fact charge store owners with actual notice of dangerous conditions on the floor created by customers or employees as long as the condition was foreseeable. Neither is correct.

A closer review of Sheil is required to resolve this issue. The court in Sheil stated that in a self-service type of store:

"It is much...