Porter v. Toys `R' Us-Delaware, Inc.

• Decision Date: 28 September 2004
• Docket Number: No. WD 61645.,WD 61645.
• Parties: Sammy Kay PORTER, Respondent, v. TOYS `R' US-DELAWARE, INC., Appellant.
• Court: Missouri Court of Appeals

152 S.W.3d 310

Sammy Kay PORTER, Respondent, v. TOYS `R' US-DELAWARE, INC., Appellant.

No. WD 61645.

Missouri Court of Appeals, Western District.

September 28, 2004.

As Modified November 23, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 23, 2004.

Application for Transfer Denied January 25, 2005.

John F. Murphy and Bryan T. Pratt, Kansas City, MO, for Appellant.

Jack T. Bangert, Mark D. Katz, and Lloyd L. Messick, Kansas City, MO, for Respondent.

Jason P. Osteen, Kansas City, MO, for Amicus Curiae.

Before ULRICH, P.J., and HOWARD and NEWTON, JJ.

PER CURIAM.

Toys "R" Us (TRU) appeals the judgment of the trial court following a jury trial in favor of Sammy Porter awarding her $300,000 in damages on her premises liability action. TRU raises six points on appeal. It claims that the trial court erred in: (1) failing to grant its motions for directed verdict and judgment notwithstanding the verdict (JNOV); (2) admitting into evidence TRU's interrogatory answer identifying an expert witness; (3) excluding evidence that Ms. Porter's medical bills were satisfied by less than the amount charged; (4) admitting into evidence all charged medical expenses; (5) denying TRU's motion for remittitur; and (6) allowing certain comments by Ms. Porter during closing argument.

For the reasons set forth below, we affirm the trial court's judgment.

Facts

Sammy Porter was a customer in the Toys "R" Us store in Columbia, Missouri, on August 2, 1997. As she walked through the stroller aisle, a stroller fell off the display shelf on top of her striking her in the head, shoulder, arm, and thumb. The stroller fell off the shelf when it was dislodged as an employee adjusted a baby car seat on the shelf behind the stroller. Ms. Porter did not seek medical attention at the time although she felt light-headed, experienced pressure on her shoulder, and had bruises on her arm and thumb. As the day progressed, Ms. Porter's head and shoulder became more tender and bruised, and her neck became stiffer. She had trouble sleeping that night, and her arm ached.

Ms. Porter continued to experience pain in her neck and shoulder and weakness in her arm over the next two weeks. On August 17, as she was shaking a can of paint, she felt a pop, and excruciating pain radiated from her neck down into her shoulders and arms. The next day, Ms. Porter saw a chiropractor for her pain. The chiropractor treated Ms. Porter for the next two months with manipulation, massage, and exercise.

Ms. Porter's pain, stiffness, and soreness waxed and waned for the next several months until August 1998, when she entered the emergency room with severe, debilitating pain in her neck. She then saw an orthopedic surgeon specializing in the maladies of the spine and neck and was diagnosed with an extruded disk. After an unsuccessful attempt at conservative treatment including exercise and steroid injections, Ms. Porter underwent surgery on November 17, 1998.

Ms. Porter filed her petition for damages against TRU on May 25, 2000. In her petition, Ms. Porter alleged negligence of the TRU employee who dislodged the stroller and improper stacking of merchandise. The jury returned a verdict in Ms. Porter's favor on the stacking count and awarded her $300,000 in damages. The trial court entered judgment accordingly. TRU filed post trial motions, which were denied. This appeal follows.

Point I

In its first point on appeal, TRU claims that the trial court erred in not granting its motion for directed verdict and motion for JNOV. It argues that Ms. Porter failed to make a submissible case. Specifically, TRU claims that Ms. Porter failed to present substantial evidence that it knew or by using ordinary care could have known that the stroller aisle was not reasonably safe. A defendant is entitled to a judgment notwithstanding the verdict only when the plaintiff fails to make a submissible case. Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo.App. W.D.2002); Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 448 (Mo.App. W.D.2001). To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability. Id." `Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case.'" Id. (quoting Love v. Hardee's Food Sys., Inc., 16 S.W.3d 739, 742 (Mo.App. E.D.2000)).

In reviewing for a submissible case, the evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the plaintiff. Id.; Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 286 (Mo.App. E.D.2002). The plaintiff's evidence is presumed to be true. Id. Any of the defendant's evidence that does not support the plaintiff's case is disregarded. Id.; Poloski, 68 S.W.3d at 448. An appellate court will not, however, supply missing evidence or give the plaintiff the benefit of unreasonable, speculative or forced inferences. Id.; Moore, 87 S.W.3d at 286. Whether the evidence in a case is substantial and whether the inferences drawn therefrom are reasonable are questions of law. Poloski, 68 S.W.3d at 448. Granting a JNOV is a drastic action that should be done only when reasonable persons could not differ on a correct disposition of the case. Moore, 87 S.W.3d at 286. An appellate court will not overturn a jury's verdict unless there is a complete absence of probative facts to support it. Id.; Poloski, 68 S.W.3d at 449.

"The general duty owed to an invitee by the owner of the premises is the exercise of reasonable and ordinary care in making the premises safe." Morrison v. St. Luke's Health Corp., 929 S.W.2d 898, 903 (Mo.App. E.D.1996); Luthy v. Denny's, Inc., 782 S.W.2d 661, 662 (Mo.App. W.D.1989). To make a submissible case as an injured invitee, a plaintiff must show that the defendant knew or, by using ordinary care, should have reasonably known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and that plaintiff sustained damage as a direct result of such failure. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 443-44 (Mo. banc 1998); MAI 22.03 [1995 Revision]. In this point, TRU contends only that Ms. Porter failed to present substantial evidence that TRU knew or by using ordinary care should have reasonably known that the stroller aisle was not reasonably safe. The other elements required for submissibility are, therefore, not addressed on this appeal. Luthy, 782 S.W.2d at 663.

A storeowner is not liable to a business invitee for injury resulting from a dangerous or unsafe condition on the premises unless the storeowner had actual or constructive knowledge of the condition in time to have remedied the condition prior to the injury. Elmore v. Wal-Mart Stores, Inc., 812 S.W.2d 178, 179-80 (Mo.App. E.D.1991). A store owner's actual knowledge of a dangerous condition is shown if an agent or employee of the owner knew of the dangerous condition. Bynote v. Nat'l Super Mkts., Inc., 891 S.W.2d 117, 120 (Mo. banc 1995). To establish constructive knowledge or notice, the condition must have existed for a sufficient length of time or the facts must be such that the defendant should have reasonably known of its presence. Love, 16 S.W.3d at 742. "`[T]he method of merchandising and the nature of the article causing injury'" are important factors to be considered in determining whether a defendant had constructive notice of a dangerous condition. Emery, 976 S.W.2d at 444 (quoting Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 780 (Mo. banc 1989)).

TRU contends that Ms. Porter failed to present substantial evidence that it knew or by using ordinary care should have reasonably known that the stroller aisle was a dangerous or unsafe condition. Instead, it argues, the record demonstrates the opposite — that its stroller aisle was reasonably safe. In making this argument, TRU relies on the testimony of several TRU employees. These employees testified that they were not aware of any other incidents where a stroller fell or became dislodged. They also testified that the Columbia TRU store was safety conscious, that the strollers were stored on a flat surface with metal fencing across the front of the shelf, and that the stroller brakes were usually applied. This evidence, however, does not support TRU's argument that Ms. Porter failed to make a submissible case. Under the appropriate standard of review, even if this evidence favors TRU's position, it must be disregarded. Moore, 87 S.W.3d at 286; Poloski, 68 S.W.3d at 448. Instead, the evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to Ms. Porter. Id.

The evidence in this case showed that a heavy stroller fell off a shelf and struck Ms. Porter. The evidence further showed that TRU uses a self-service form of merchandising, and merchandise sometimes falls off the shelves at the store. The strollers are displayed side-by-side on a shelf that is four and a half feet above the ground. The tops of the strollers reach higher than six feet above the ground. The strollers sit on wheels. To make the strollers easily accessible to customers, they are not secured to the shelf. Recognizing the danger in displaying heavy strollers on a high shelf, a manager at the Columbia TRU store testified that certain precautions are made on the stroller aisle to prevent the strollers from falling off the shelf. For example, a metal fencing runs across the front of the stroller shelf; the tops of the stroller wheels are, however, higher than the fencing. Also, the strollers' brakes are sometimes applied. Based on this self-service method of merchandising and the nature of the article causing injury — a heavy stroller displayed four and a half feet above the floor falling from the display shelf — plaintiff has shown that TRU had constructive notice that the stroller aisle was a dangerous or unsafe condition. See e.g. Emery, 976...