Millers of Jackson, Meadowbrook Road, Inc. v. Newell

• Citation: 341 So.2d 101
• Decision Date: 07 December 1976
• Docket Number: No. 49018,49018
• Parties: MILLERS OF JACKSON, MEADOWBROOK ROAD, INC. v. Ralph L. NEWELL.
• Court: United States State Supreme Court of Mississippi

Page 101

341 So.2d 101

MILLERS OF JACKSON, MEADOWBROOK ROAD, INC. v. Ralph L. NEWELL.

No. 49018.

Supreme Court of Mississippi.

Dec. 7, 1976.

Rehearing Denied Jan. 26, 1977.

Watkins & Eager, Hassell H. Whitworth, Thomas M. Murphree, Jackson, for appellant.

Chill, Chill & Dove, Luke Dove, Jackson, Richard E. Stratton, III, Brookhaven, for appellee.

Before INZER, ROBERTSON and WALKER, JJ.

WALKER, Justice, for the Court:

On March 2, 1973, Ralph L. Newell slipped and fell on a toy Volkswagen somehow present in an aisle at Millers Department Store in Jackson. He sued for damages in the Circuit Court of the First Judicial District of Hinds County, Mississippi, and obtained a jury verdict in the amount of $50,000. On appeal, Millers cites several errors. We have concluded that the evidence presented does not support a finding of negligence on the part of Millers.

Daryl Bridges, Millers' clerk assigned to the toy department, testified that at the time of the accident he was helping a fellow employee put up merchandise in the hardware department. Within a half hour before Mr. Newell's accident, Bridges had seen a small child playing in the toy department, but the child was located several aisles over from where the toy Volkswagens were kept. After seeing the child, Bridges went over to the toy department to straighten up and then returned to hardware.

Mr. Charles B. Parker, the store's security manager, testified that he had returned from lunch at about a quarter until one to begin his rounds of the store. One of his duties, in addition to guarding against shoplifters, was to search for safety hazards. During his rounds after lunch, Mr. Parker found nothing on the aisles in the toy department. It was only half an hour later when Bridges and Newell came to his office to report the accident.

Newell testified that he entered the store at approximately 1:00 or 1:30 to purchase a checker set and an air filter. He asked a clerk for help in finding a checker set but was told that none was available. On his way to find the air filter, Newell stepped on the toy Volkswagen and fell, injuring himself.

There are several circumstances in which a store owner may be held liable to an invitee in such a case. Where the dangerous condition on the floor is traceable to the proprietor's own negligence, no knowledge of its existence need be shown. Mississippi Winn-Dixie Super Markets, Inc. v. Hughes, 247 Miss. 575, 584, 156 So.2d 734, 736 (1963). In this case, absolutely no evidence was presented from which the jury could infer that some agent of Millers had caused the toy to be present on the floor. Where the presence of the condition is due to the act of a third party, it must be shown that the defendant had actual or constructive notice of its existence. Id. at 584, 156 So.2d at 736. Since Parker had inspected the toy department only half an hour before Newell's accident, the jury could not conclude that the toy had been in the aisle long enough for the defendant to have had constructive notice of its presence. The circumstances are similar to those presented in Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916 (Miss.1966), in which this Court reversed a judgment granted to a plaintiff who had slipped and fallen on a gumball. This Court held that constructive notice could not be inferred because the floor had been cleaned that morning, the store's employees had been instructed to search for safety hazards, and two employees had walked through the area within an hour before the accident without seeing an hour ball on the floor. Id. at 918. All these factors are demonstrated by the evidence in this case, and we conclude that no constructive notice was shown.

Indeed, Newell, in his brief, scarcely contends that he has met the Mississippi standard of constructive notice. Rather, he argues that a showing of constructive notice should not be required in regard to a selfservice retail store. Because the proprietor has decided, for his own commercial purposes, to allow customers to roam freely through his store, he should bear the costs occasioned by the risk they create.

Newell relies primarily on cases from other jurisdictions, especially Ciminski v. Finn Corp., 13 Wash.App. 815, 537 P.2d 850 (1975). In that case, a customer in a selfservice cafeteria had slipped in a liquid spilled on the floor near the serving line and the restroom. The court concluded that a plaintiff need not prove that the operator of a...