Smith v. Wal-Mart Stores, Inc.

Citation967 S.W.2d 198
Decision Date17 March 1998
Docket NumberNo. 71778,WAL-MART,71778
PartiesElizabeth SMITH and Joel Smith, Plaintiffs/Respondents, v.STORES, INC., and Stacey Crocker, Defendants/Appellants.
CourtCourt of Appeal of Missouri (US)

Stefan J. Glynias, Adrian P. Sulser, St. Louis, for defendants-appellants.

Eugene H. Fahrenkrog, Jr., Michael A. Gross, St. Louis, for plaintiffs-respondents.

ROBERT G. DOWD, Jr., Presiding Judge.

Elizabeth Smith, Plaintiff, brought suit for personal injuries on a premises liability theory against Defendant, Wal-Mart Stores, Inc. Plaintiff sustained injury to her back when she slipped and fell upon entering the vestibule of the store. Plaintiff's husband, Joel Smith, brought a derivative action against Defendant for loss of consortium. Finding Wal-Mart 100% at fault, the jury returned a verdict in favor of Plaintiff, awarding her $300,000 and awarding $25,000 to Joel. Judgment was entered against Defendant, and this appeal followed. Defendant asserts four points of error: (1) failure to establish a submissible case because the water upon which Plaintiff slipped was an open and obvious condition; (2) cumulative evidentiary errors prejudiced Defendant; (3) the "trial court erred in denying Defendant's motion for new trial for the reason that the jury's assessment that Defendant was 100% at fault and Plaintiff Elizabeth Smith was 0% at fault was against the weight of the evidence and against the law under the evidence"; and (4) alternatively, the court erred in overruling Defendant's motion for remittitur due to an excessive jury verdict. We affirm.

In its first point on appeal, Wal-Mart asserts the trial court erred in failing to sustain its motion for directed verdict and motion for judgment notwithstanding the verdict. Defendant argues Plaintiff failed to make a submissible case due to the open and obvious exception to premises liability. When we review a motion for directed verdict, we view "the evidence and all inferences to be made from it in the light most favorable to the plaintiff." Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 657 (Mo.App. E.D.1997). "We disregard all evidence and inferences to the contrary to determine if plaintiff made a submissible case." Id. Only if reasonable minds cannot differ as to the proper verdict should a court order a directed verdict. Id.

The facts with this standard in mind follow: On July 18, 1994, at approximately 5 p.m., Elizabeth took her fifteen-year-old son, Andrew Mendenhall, to Defendant's store to buy a pair of "cleats" for Andrew's football practice that evening which began at 6 p.m. When Elizabeth and her son arrived at the store, water was flowing across the parking lot. The water had accumulated as a result of Wal-Mart watering its plants and shrubs which were arranged in a lawn and garden display outside in front of the store. The watering and the overflow required customers to walk through water in order to get to the store's entrance. Andrew tried to jump over the flow of water, but part of his right foot landed in the stream. Elizabeth walked on the tips of her toes through the shallower parts of the water to avoid getting her canvas tennis shoes wet.

Arriving at the double doors of the Wal-Mart vestibule entrance first, Andrew opened the doors and navigated the vestibule without incident. Elizabeth followed. She stepped into the vestibule with her left foot first, followed by her right foot. As Elizabeth shifted her weight to take her next step, her right foot went out from underneath her, and her left foot went behind her; her left knee came down and hit the floor first. To prevent herself from doing "the splits," Elizabeth bent and twisted around to try to keep her balance. She twisted her right leg around and landed on her backside. While on the floor, she noticed for the first time that the floor was wet. Elizabeth called to her son to help her up off the floor. After she was helped up, she noticed the back of her shorts were completely wet, her knees were wet, and water was dripping down the back of her legs. After entering the store, Elizabeth informed the store "greeter" and assistant manager of her fall and filled out an incident report. After buying the cleats, Elizabeth and Andrew left Wal-Mart and went to Andrew's football practice.

Elizabeth's back began to hurt before she left the store and continued to hurt into the night. The next day, July 19, she consulted Dr. Cornett 1 at Mercy Medical Center, had X-rays taken, and received a prescription for medication. On July 20, Elizabeth went to Salem Hospital for treatment; after more X-rays, she was told she needed a week of bed rest. After another consultation with Dr. Cornett, he suggested Elizabeth see an orthopedic surgeon. Elizabeth went to see Dr. Samson for the first time on August 10, 1994, complaining of pain in her lower back and sharp pains that went into her left leg. After examining her, Dr. Samson diagnosed her with left sciatica, a term he defined as describing pain in the left leg along the course of the sciatic nerve, which he strongly believed was caused by a herniated or ruptured disc. He initially prescribed an anti-inflammatory medicine and asked her to limit her activity, including staying off work. Dr. Samson again saw Elizabeth three weeks later, found her condition had improved, and instructed her to call him in ten days if the pain in her leg returned or increased. She called him on September 7 to tell him her husband had lost his job, and she needed to return to work. He cleared her for work but gave her a 15-pound lifting restriction. She called him again on September 14 to say she had more pain and Dr. Samson prescribed some medication and arranged for her to have a CAT scan. From the CAT scan, Dr. Samson found Elizabeth had a herniated disc which called for surgical treatment, a laminectomy and discectomy. Dr. Samson explained that this procedure is not always successful, pain may persist after removing the disc. Furthermore, Dr. Samson explained that after surgery, elasticity or flexibility may be lost from the presence of scar tissue. About a month after surgery, Dr. Samson found Elizabeth continued to have some pain and numbness in her leg and pain in her back.

Wal-Mart asserts the water in the vestibule upon which Elizabeth slipped was an open and obvious condition from which it could have reasonably relied on her to have protected herself and, therefore, Wal-Mart is not liable to Plaintiff for her injuries. Generally, the "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). A landowner is liable when his or her "conduct falls below the applicable standard of care established to protect against unreasonable risk of harm." Hellmann, 943 S.W.2d at 658. The applicable standard of care is a question of law for the courts. Id. It is a question of fact for the jury to determine whether the landowner fell below that standard of care. Id.

In Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo.1993), the Supreme Court adopted sections 343 and 343A(1) of the Restatement (Second) of Torts. Section 343 requires that for a possessor of land to meet the applicable standard of care, the possessor of land must "(1) exercise reasonable care; (2) disclose to the invitee all dangerous conditions which are known to the possessor and are likely not to be discovered by the invitee; and (3) see that the premises are safe for the reception of a visitor, or at least ascertain the condition of the land, to give such warning that the invitee may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it." Id. "Under the second element of section 343, when the dangerous condition is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees 'unless the possessor should anticipate the harm despite such knowledge or obviousness.' " Id. (emphasis omitted).

Defendant argues that the flowing and pooled water present on the parking lot in front of the vestibule and the water inside the vestibule posed an open and obvious danger which Elizabeth discovered prior to her fall. However, Elizabeth testified that she did not see the puddle of water in the vestibule before she entered into it. Instead, she only noticed the water once she had fallen and was on the ground. Testimony that no sunlight entered into the vestibule which could have glistened on the floor to make the puddle noticeable bolsters this evidence. See Robinson v. Safeway Stores Inc., 655 S.W.2d 617, 619 (Mo.App.1983) (concluding "it cannot be said as a matter of law that clear water on a light-colored tile floor posed a danger so open and obvious as to preclude submission of plaintiff's case"). Based on the above evidence, we cannot say the court erred in refusing to direct a verdict in favor of Defendant.

However, even if the condition was open and obvious, which Defendant asserts, this court's en banc decision in Hellmann shows that a court's finding of an open and obvious condition does not end the inquiry. See Harris, 857 S.W.2d at 226; Preston v. Wal-Mart Stores, Inc., 923 S.W.2d 426 (Mo.App. W.D.1996). Instead, there remains a question for the jury whether or not a landowner "should anticipate that the risk of harm exists even if the invitee exercises due care in the face of the open and obvious danger." Hellmann, 943 S.W.2d at 659.

In Hellmann, the plaintiff fell on an icy patch in the store's parking lot on her way into defendant's store. This court explained that the icy patches in the parking lot were an open and obvious condition and, therefore, defendant "was entitled to expect its...

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