Moon v. SCOA Industries, Inc.

• Decision Date: 02 September 1988
• Citation: 764 S.W.2d 550
• Parties: Odessa MOON, Plaintiff-Appellee, v. SCOA INDUSTRIES, INC., Defendant-Appellant. 764 S.W.2d 550
• Court: Tennessee Court of Appeals

Page 550

764 S.W.2d 550

Odessa MOON, Plaintiff-Appellee, v. SCOA INDUSTRIES, INC., Defendant-Appellant.

764 S.W.2d 550

Court of Appeals of Tennessee,

Western Section, at

Knoxville.

Sept. 2, 1988.

Application for Permission to Appeal

Denied by Supreme

Court

Oct. 31, 1988.

Michael Murphy, Chattanooga, for defendant-appellant.

Thomas H. O'Neal, Chattanooga, for plaintiff-appellee.

CRAWFORD, Judge.

This is a slip and fall case. Defendant, SCOA Industries, Inc., appeals from the judgment on a jury verdict awarding plaintiff, Odessa Moon, $100,000 damages for personal injuries.

Plaintiff's complaint alleges that on September 1, 1984, she was a customer in defendant's Chattanooga store, and while walking down a store aisle fell due to a slippery substance on the floor. The complaint avers that defendant knew or should have known of the dangerous condition in its store, and was negligent in failing to keep the floor clear of foreign substances and in failing to correct the dangerous condition. Plaintiff alleges that as a result of the fall she received severe and permanently disabling injuries with resultant hospital, medical and drug expenses.

Defendant's answer admits that plaintiff, while one of its customers, fell and that it had the care, custody, control, maintenance and ownership of the premises. The answer joins issue on the material allegations of the complaint concerning negligence, and further avers that plaintiff's failure to exercise reasonable and ordinary care for her own safety directly and proximately caused or contributed to her alleged losses, injuries and damages.

After the jury verdict for plaintiff, the trial court denied defendant's motion for a new trial and defendant's appeal presents five issues for review which we will now consider.

The first two issues presented, which we will consider together, are whether there was any material evidence to support the jury's verdict, and whether the trial court erred in failing to direct a verdict for defendant.

The record reveals the following pertinent facts: Plaintiff, Odessa Moon, is 38 years old and has a high school education. On September 1, plaintiff, with her sister and a friend, visited defendant store in order for plaintiff to check on her lay-a-way. Plaintiff entered the store and proceeded toward the lay-a-way desk down the main aisle. Just a short distance from the front door, in front of the jewelry counter, she slipped in a clear liquid substance which was on the tile floor. Plaintiff's companions did not see the fall because they had gone to another area of the store upon entry. They were, however, informed of plaintiff's fall and went to plaintiff immediately after she fell. Plaintiff and her companions testified that the manager of the store was summoned and arrived while plaintiff was still sitting on the floor. The manager instructed an employee to have the liquid substance mopped up, and also instructed an employee to have photographs taken. They state that at least two or three photographs were taken of the scene and plaintiff at that time.

Terry Heisler, manager of defendant store at the time of the occurrence, but now employed by defendant at another location, testified that he was summoned to the scene of the accident, found plaintiff sitting on the floor in the aisle and observed droplets of a clear liquid substance which he thinks was water. He was somewhat confused in his testimony concerning whether photographs were taken; first he testified that they were taken, and then recants this testimony and states that photographs were not taken. He observed that on the jewelry counter beside where plaintiff fell there was a baby bottle which had some liquid substance in it and which was apparently abandoned by its owner. He states he did not test the substance in the baby bottle and the bottle was probably thrown away at the close of the day. He stated that at the time of the accident the company had a policy that encouraged employees to be alert for debris and other articles or substances in the aisles and to remove any such articles or substances or to call someone to have them removed. Defendant had an incentive plan for the employees performing this service which provided them with a small stipend for each such incident reported and corrected.

At the time of the occurrence, defendant had two employees working at the jewelry counter. Both testified that they were busy with customers and although they did not see plaintiff fall, they noticed plaintiff on the floor after she fell. They both testified that they did not see any liquid substance on the floor after the plaintiff fell nor did they see the abandoned baby bottle on their jewelry counter which the store manager stated was there.

The proof also established that the location of plaintiff's fall was in a main aisle of the store, a short distance from the entrance where a security guard station and customer service desk were maintained. The proof also showed that defendant did not or could not produce any photographs made by defendant, although the manager first testified that the photographs were taken. Additionally, the accident report form required by store policy was not filled out and completed as required by store policy at the time the accident occurred, but apparently the information was lost and the accident report was filled out approximately a month later when defendant was notified by plaintiff's lawyer of his representation.

The role of this Court and the trial court in ruling on a directed verdict is clearly established in our jurisprudence. On such a motion by the defendant, the court is required to take the strongest legitimate view of the evidence in favor of the plaintiff, including all reasonable inferences in the plaintiff's favor and to disregard any evidence to the contrary. A verdict may be directed only if there is no material evidence in the record which would support the verdict for the plaintiff under any of the theories which plaintiff had advanced. Wharton Transport Corp. v. Bridges, 606 S.W.2d 521 (Tenn.1980); Cecil v. Hardin, 575 S.W.2d 268 (Tenn.1978); Callahan v. Town of Middleton, 41 Tenn.App. 21, 292 S.W.2d 501 (1954).

The well recognized law in cases involving injuries on business premises is that the proprietor of a retail establishment has a legal obligation to exercise ordinary care and diligence to maintain the premises in a reasonably safe condition for his patrons and is liable only if injury results from breach of the duty to exercise reasonable and ordinary care for their safety and protection. Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn.App.1973); Gargaro v. Kroger Grocery & Baking Co., 22 Tenn.App. 70, 74, 118 S.W.2d 561, 563 (1938).

Before an owner or operator of a business can be held liable for negligence in allowing a dangerous or defective condition to exist on its premises, that condition (1) must have been created by the owner or operator or its agent or (2) if the condition was created by someone other than the owner or operator or its agent, there must have been actual or constructive notice on the part of the owner or operator that the condition existed prior to the accident. Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.App.1980).

Defendant contends that plaintiff failed to prove that it had constructive notice of the condition causing plaintiff's fall. We have to agree that there is no direct proof as to the creation of the condition and how long it had existed. However, because of the location of the accident in the close proximity of the security guard and the sales personnel of defendant, it could be inferred that defendant's employees could and should have seen the actual spilling of the liquid or the liquid on the floor after it was spilled, in time to remove it or alert others to its existence. Facts may be inferred from circumstantial evidence,...