Munford, Inc. v. Fleming

• Decision Date: 22 April 1992
• Docket Number: No. 07-CA-59432,07-CA-59432
• Citation: 597 So.2d 1282
• Parties: MUNFORD, INC. v. Bettie FLEMING.
• Court: Mississippi Supreme Court

Page 1282

597 So.2d 1282

MUNFORD, INC. v. Bettie FLEMING.

No. 07-CA-59432.

Supreme Court of Mississippi.

April 22, 1992.

Forrest W. Stringfellow, Trudy D. Fisher, Daniel Coker Horton & Bell, Jackson, James B. Galloway, Galloway & Galloway, Gulfport, for appellant.

Jim W. Rose, Gulfport, for appellee.

Before DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.

DAN M. LEE, Presiding Justice, For The Court:

On January 22, 1988, the Circuit Court of Harrison County entered a judgment upon a jury verdict finding for Bettie Fleming (Fleming) and awarded $100,000.00 (one hundred thousand dollars) in damages resulting from her injuries suffered in a fall at a Majik Market owned by Munford, Inc. (Munford). Feeling aggrieved, Munford appeals and assigns two errors.

I. The Trial Court erred in denying the motion for judgment notwithstanding the verdict filed on behalf of Munford, Inc.

II. The Trial Court erred in granting instruction P-7 because it is an erroneous statement of the law, misleading and confusing to the jury.

We have carefully reviewed the record of proceedings in the Circuit Court, and find sufficient evidence was presented to the jury to support a finding that a puddle of water, in which Fleming slipped, was created through Munford's negligence. Accordingly, we affirm the judgment entered by the Circuit Court.

FACTS

On April 28, 1986, Fleming and her husband stopped by a Majik Market convenience store, which was owned by Munford, in Gulfport, Mississippi. While she waited outside, her husband entered the Majik Market to purchase groceries. Realizing her husband did not know they were out of Pepsi-Cola, Fleming followed him into the store, where she saw him at the cash register. After telling him to pay for a Pepsi, she walked to a Pepsi display, which was set-up in an aisle along with several other beverage displays that partially blocked the aisle by leaving only enough room for one person to walk through. As she walked through the narrowed aisle, she slipped in a puddle of water and fell on her "neck, head and back area."

Fleming's husband and Linda Ford-Cuevas (Ford-Cuevas), who was the only Munford employee on duty at the time of the accident, went to assist Fleming who was lying in the aisle. They determined that Fleming had slipped in a puddle of water which had leaked from the spout of a bottle of spring water that sat upon one of the store's shelves. Fleming testified she was "wet all over," and her husband stated the water was not only "dirty," but also "all over the floor." Ford-Cuevas agreed Fleming had "some water on her," but she also stated that the bottle was leaking at a "pretty heavy drip," and only a small amount of water had leaked from the bottle.

Ford-Cuevas testified that she and other clerks customarily stocked the shelves with bottles of spring water, and when she walked through the aisles she would customarily adjust the bottles of water on the shelves. On the day of the accident, she stated she had walked through the aisles one to two hours before the accident, at which time there had been no water on the floor, and during the one or two hours that elapsed between the time she walked through the aisles and the time the accident occurred, twenty-five to thirty people had been in the store.

I.

In the first assignment of error, Munford asserts the Circuit Court erred in denying its motion for a judgment notwithstanding the verdict, because the evidence was insufficient to show Munford breached the duty it owed to Fleming. Our standard of review regarding a denial of a judgment notwithstanding the verdict or a peremptory instruction are the same. Motorola Com. & Electronics v. Wilkerson, 555 So.2d 713, 723 (Miss.1989); Mississippi Farm Bureau Mut. Inc. Co. v. Todd, 492 consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, [we are] required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. Id. at 1214.

So.2d 919, 927 (Miss.1986) (quoting Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 656 [Miss.1975] ). Likewise, our standard of review for a denial of judgment notwithstanding the verdict and a directed verdict are identical. Litton Systems, Inc. v. Enochs, 449 So.2d 1213 (Miss.1984). Under this standard, this Court will:

In numerous cases, we have spoken to the duty owed by a store proprietor to its customers. In Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293 (Miss.1988), we stated:

[t]he owner or operator of business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition and, if the operator is aware of a dangerous condition which is not readily apparent to the invitee, he is under a duty to warn the invitee of such condition. Waller, supra [Waller v. Dixieland Food Stores, Inc., 492 So.2d 283 (Miss.1986) ]; Wilson v. Allday, 487 So.2d 793 (Miss.1986); Downs v. Corder, 377 So.2d 603 (Miss.1979); J.C. Penney Co. v. Sumrall, 318 So.2d 829 (Miss.1975). The owner or occupant is not an insurer against all injuries. Kroger, Inc. v. Ware, 512 So.2d 1281 (Miss.1987); First National Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss.1968); Daniels v. Morgan & Lindsey, Inc., 198 So.2d 579 (Miss.1967).

When a dangerous condition on the premises is caused by the operator's own negligence, no knowledge of its existence need be shown. Waller, supra; Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d 107 (Miss.1987); Miller's of Jackson, Meadowbrook Road, Inc. v. Newell, 341 So.2d 101 (Miss.1977); Miss. Winn-Dixie Supermarkets, Inc. v. Hughes, 247 Miss. 575, 156 So.2d 734 (1963). When a dangerous condition on the premises or floor is caused by a third person unconnected with the store operation, the burden is upon the plaintiff to show that the operator had actual or constructive knowledge of its presence. Waller, supra.

Thompson at 295 (emphasis added).

Regarding how a store operator's constructive knowledge of a dangerous condition may be shown, we stated in Waller v. Dixieland Food Stores, Inc., 492 So.2d 283 (Miss.1986):

[c]onstructive knowledge is established by proof that the condition existed for such a length of time that, in the exercise of reasonable care, the proprietor should have known of it.

Id. at 385 (citing Douglas, 405 So.2d at 120; Hughes, 247 Miss. at 584, 156 So.2d 734).

The rule that emerges from these authorities is that for a plaintiff to recover in a slip-and-fall case, he must show the proprietor had actual knowledge of a dangerous condition, or the dangerous condition existed for a sufficient amount of time to establish constructive knowledge, in that the proprietor should have known of the condition, or the dangerous condition was created through a negligent act of a store's proprietor or his employees.

Therefore, for the Circuit Court's denial of a motion for judgment not withstanding the verdict in the case sub judice to have been in error, the evidence introduced could not have allowed hypothetical, reasonable jurors to differ over whether Munford's employees had actual knowledge of the water puddle, or whether the employees had constructive knowledge, or in the alternative whether the employees negligent acts created the puddle. McIntosh v. Deas, 501 So.2d 367, 370 (Miss.1987).

In the case sub judice, there was no contention that Munford's employees had actual knowledge of the pool of water. Moreover, when we view the evidence presented in light of previous decisions regarding a plaintiff's burden of showing constructive knowledge, there may have been insufficient evidence to show the puddle existed for a sufficient amount of time to establish constructive knowledge. In Thompson, 528 So.2d at 294, we found the evidence insufficient to show constructive knowledge when a plaintiff slipped in a puddle of pine scented cleaner, which witnesses described as being dirty and having shopping cart tracks running through it. In Waller, 492 So.2d at 286, we found the evidence insufficient to prove constructive notice where a store employee had checked an aisle at 10:00 a.m. and an accident occurred at 12:30 p.m., because we reasoned it was "just as logical to presume the liquid was spilled at 12:29 p.m. as it [was] to presume the liquid was spilled at 10:01." Similarly, in Douglas, 405 So.2d at 110, we also found the evidence was insufficient to show constructive knowledge when a store employee walked an aisle at 11:30 a.m. and an hour and a half later a customer slipped and fell in a pool of water near a frozen food case.

Concerning the issue of whether the puddle of water was created through negligent acts of Munford's employees, however, there was sufficient evidence presented which could have allowed the jurors to conclude that the leak in the bottle of water was caused by Munford's employees' handling of the bottle. According to Ford-Cuevas, the bottles of water were placed on the shelves by Munford's employees, and she regularly adjusted the bottles on the shelves; however, she denied ever having placed a leaking bottle on a shelf or having handled the bottles in a way that would have opened the spout, and she stated that during the two to three hours between when she checked the aisles and when Fleming fell, twenty-five to thirty customers entered the store. While upon this evidence the jury could have found one of the customers caused the bottle to leak, it was also possible that the jury--having heard Ford-Cuevas's testimony and viewed her credibility--found she either failed to see...