Potter v. Hy-Vee, Inc.

• Decision Date: 26 September 2018
• Docket Number: No. SD 35093,SD 35093
• Citation: 560 S.W.3d 598
• Parties: Glenda Marie POTTER, Plaintiff-Appellant, v. HY-VEE, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

560 S.W.3d 598

Glenda Marie POTTER, Plaintiff-Appellant,

v.HY-VEE, INC., Defendant-Respondent.

No. SD 35093

Missouri Court of Appeals, Southern District, Division Two.

Filed: September 26, 2018

Attorneys for Appellant: Justin T. Gregg and Matthew W. Corbett, of Springfield, MO.

Attorneys for Respondent: William S. Lewis, of Trenton, MO; Lori E. Battern, of Smithville, MO; Terry M. Evans, of Trenton, MO; and Shawn P. Battagler, of Springfield, MO.

JEFFREY W. BATES, J.

This appeal arises from a premises liability case brought by Glenda Potter (Plaintiff), a business invitee, against Hy-Vee, Inc. (Defendant) to recover damages resulting from injuries Plaintiff sustained from a fall in a Hy-Vee store. Plaintiff appeals from a judgment entered for Defendant after the jury found in its favor. Plaintiff presents three points. In Point 1, Plaintiff contends the trial court erred by submitting a verdict-director based on MAI 22.03 because that pattern instruction did not accurately instruct the jury on the substantive law. In Point 2, Plaintiff contends the trial court erred by admitting testimony from Defendant’s orthopedic expert that Plaintiff fell because her knee buckled. In Point 3, Plaintiff contends the trial court erred by admitting testimony from two other experts for Defendant about the results of an experiment measuring the slip-resistance of Defendant’s floor. Finding no merit in any of these contentions, we affirm the trial court’s judgment.

Background

In February 2014, Plaintiff visited the Hy-Vee store in Springfield, Missouri, to eat lunch. This store was a typical "self-service" business, at which customers walked up and down the aisles with shopping carts and selected products to purchase. Plaintiff was there midday on a weekend, and the store was "[v]ery busy." Plaintiff was 75 years old at the time, and she had severe osteoarthritis

in her right knee. While she was walking past the cash registers on her way out of the store, Plaintiff’s right leg folded, and she fell. Prior to falling, Plaintiff did not see anything on the floor, such as water or debris. While on the floor, however, she saw a "clear streak of fluid" with pink flower petals in it. After Plaintiff was helped over to a bench, an employee inspected the area and saw nothing on the floor. The fall had been captured by video surveillance. As a result of the fall, Plaintiff suffered bone bruises and a lower-back strain.

Plaintiff filed a personal injury action against Defendant in July 2015. Her amended petition alleged, inter alia , that she was injured because she "slipped and fell in a puddle of liquid on the floor of Defendant’s store[.]" A three-day jury trial was held in June 2017. The jury assessed zero fault to each party and returned a verdict in favor of Defendant. The trial court entered judgment for Defendant, and this appeal followed. Additional facts necessary to the disposition of the case will be included below as we address Plaintiff’s three points on appeal.

Point 1

Plaintiff’s first point involves alleged instructional error and arises from the following facts. MAI 22.03 is the pattern verdict-directing instruction that applies to: "Owners and Occupiers of Land" when an "Invitee [is] Injured." Id . Insofar as relevant here, it states:

22.03 [1995 Revision] Invitee Injured

Your verdict must be for plaintiff if you believe:

First, there was (here describe substance on floor that caused the fall) 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 it] [barricade it] [warn of it], and

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

Id . (footnotes and affirmative defense tail omitted). At the instruction conference, Plaintiff’s counsel argued that he should be permitted to submit a verdict-director that deviated from MAI 22.03 because "Plaintiff is an invitee of self-service store; therefore, ... Plaintiff is not required to prove [Defendant] knew or could have known of the dangerous condition." As the basis for that argument, Plaintiff’s counsel primarily relied upon Sheil v. T.G. & Y. Stores Co. , 781 S.W.2d 778 (Mo. banc 1989). Counsel asked the trial court to modify the verdict-director to "either remove the second paragraph totally of the notice requirement or have us prove that the presence of a liquid on the floor in Defendant’s store is the risk inherent in the operation of Defendant’s store." Counsel tendered two instructions, A-1 and A-2, which contained those alternative modifications. Defendant’s counsel argued that each modification was improper because "under Missouri law you still must prove the defendant knew or by ordinary care could have known of the condition." The trial court refused Instructions A-1 and A-2, and gave the following instruction based upon MAI 22.03:

INSTRUCTION NO. 6

In your verdict you must assess a percentage of fault to defendant Hy-Vee, Inc., whether or not plaintiff Glenda Potter was partly at fault, if you believe:

First, there was liquid 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 it; or barricade it; or warn of it; and

Fourth, such failure directly caused or directly contributed to cause damage to plaintiff.

The phrase "ordinary care" as used in this instruction means that degree of care that an ordinarily careful person would use under the same or similar circumstances.

In Point 1, Plaintiff contends the trial court erred by submitting Instruction No. 6 because that verdict-director, based on MAI 22.03, did not accurately instruct the jury on the substantive law. Plaintiff argues that the second paragraph of Instruction No. 6 should have been modified, like tendered instructions A-1 or A-2, because Defendant "was charged with actual knowledge of the dangerous condition, in that there was substantial evidence that [Defendant] was a self-service store." We find no merit in this argument.

Whether the jury was properly instructed is a question of law which this Court reviews de novo. Chavez v. Cedar Fair, LP , 450 S.W.3d 291, 294 (Mo. banc 2014) ; Coomer v. Kansas City Royals Baseball Corp. , 437 S.W.3d 184, 191 (Mo. banc 2014). We will not reverse a judgment based upon instructional error unless it materially affected the merits of the action. Coomer , 437 S.W.3d at 191. The party challenging the instruction must show that the offending instruction misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction. Id .

"Whenever Missouri Approved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject." Rule 70.02(b); see also Hervey v. Missouri Dep't of Corr. , 379 S.W.3d 156, 159 (Mo. banc 2012) ; Karnes v. Ray , 809 S.W.2d 738, 740 (Mo. App. 1991) (if an MAI is applicable to a particular case, its use is mandatory). Rule 70.02 further provides that departure from an applicable MAI constitutes error, its prejudicial effect to be judicially determined. Rule 70.02(c); Hervey , 379 S.W.3d at 159.

Because Plaintiff’s argument is based on Sheil v. T.G. & Y. Stores Co. , 781 S.W.2d 778 (Mo. banc 1989), we begin our analysis by reviewing that opinion. Plaintiff Sheil was a customer in the defendant’s self-service store. He was injured when he tripped over a small, heavy box on the floor of the store’s aisle. At trial, there was no evidence concerning what was in the box, who left the box there, or how long it had been in the aisle. The jury found in favor of Sheil, and T.G. & Y. appealed. Id . at 779-80. One issue on appeal was whether Sheil had made a submissible case on the issue of notice. T.G. & Y. contended the case should not have been submitted to the jury because Sheil did not present substantial evidence that: (1) an employee placed the box in the aisle (i.e. , providing actual notice to T.G. & Y.); or (2) the box had been there long enough that T.G. & Y. should have been aware of it (i.e. , providing constructive notice to T.G. & Y.). Id . Our Supreme Court rejected that argument. In doing so, it changed Missouri law by expanding the type of evidence that could be used to make a submissible case on the issue of notice:

Past cases have placed great emphasis on the length of time the dangerous item has been in the area in which the injury occurs. These cases culminate in holdings that a showing that the item was on the floor for as much as 20 minutes is insufficient to charge the storekeeper with constructive notice. By our holding, the precise time 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 (citations and footnote omitted). Thus, the defendant store’s motion for judgment notwithstanding the verdict was properly overruled because "the jury could have found that the plaintiff was injured by a hazard that could have been expected in the store by reason of its method of merchandizing[.]" Id . at 782.

Plaintiff reads Sheil to mean that: (1) as a self-service store, Defendant was charged as a matter of law with actual knowledge that there was liquid on Defendant’s floor; and (2) the inclusion of the second paragraph of Instruction No. 6, which required the jury to find that Defendant "knew or by using ordinary care could have known of this condition[,]" was improper and prejudicial. We disagree.

To make a submissible case, Plaintiff had to present substantial evidence to establish each element of her claim. See Payne v. Cunningham , 549 S.W.3d 43, 47 (Mo. App. 2018) ; Saunders v. Baska , 397 S.W.3d 44,...