Spencer v. Kroger Co.

• Decision Date: 12 August 1991
• Docket Number: No. 90-1508,90-1508
• Citation: 941 F.2d 699
• Parties: Ivan SPENCER, Appellant, v. KROGER COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 699

941 F.2d 699

Ivan SPENCER, Appellant, v. KROGER COMPANY, Appellee.

No. 90-1508.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1990.

Decided Aug. 12, 1991.

Ira M. Young, St. Louis, Mo., argued, for appellant; Ira M. Young and Victor B. Thompson, on the brief.

John P. Cunningham, St. Louis, Mo., argued, for appellee; James E. Whaley and John P. Cunningham, on the brief.

Before McMILLIAN and BOWMAN, Circuit Judges, and HARRIS, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Ivan Spencer appeals from a final judgment entered in the United States District Court for the Eastern District of Missouri, granting summary judgment in favor of Kroger Company ("Kroger"). Spencer v. Kroger Co., No. 88-1973 C (5) (E.D.Mo. Feb. 6, 1990). For reversal, Spencer argues that the district court erred in determining that Kroger lacked constructive notice of the hazard that caused his fall, as a matter of law, because of a lack of evidence as to the length of time the hazard was present in Kroger's store. Spencer also claims that the district court erred in concluding that Kroger lacked actual notice of the hazard because the cleaning company, which created the hazard, was an independent contractor, rather than its agent. For the reasons discussed below, we reverse the judgment of the district court and remand the case to the district court for proceedings consistent with this decision.

I.

This is a textbook slip and fall case. On June 3, 1986, Spencer entered Kroger's store at 1605 South Jefferson, St. Louis, Missouri, at approximately 3:00 a.m. to purchase some food. Spencer slipped and fell on some cleaning solution that had accumulated on the floor. On September 13, 1988, Spencer filed suit against Kroger for personal injuries suffered as a result of his fall. On October 11, 1988, Kroger removed the case to the United States District Court for the Eastern District of Missouri under diversity jurisdiction.

During deposition, Spencer testified that the floor cleaning machine ("scrubber") was located in the next aisle from the one in which he fell, and that it was not visible from the location of his fall. Kroger's store manager testified in deposition, however, that the scrubber was located only fifteen to twenty feet away from the place where Spencer fell, and in plain view. Spencer also testified that the liquid solution had spread across two aisles, while the store manager claimed that the floor was dry where Spencer fell. Although Kroger alleges that the scrubber was operated by an independent cleaning company, Spencer claims that Kroger has failed to identify the company, despite his requests through supplemental interrogatories.

On June 28, 1989, following pleadings and discovery, Kroger moved for summary judgment. On February 6, 1990, the district court granted Kroger's motion for summary judgment on the grounds that Spencer failed to adduce evidence of actual or constructive notice of the cleaning solution on the part of Kroger, and that Kroger was not liable, as a matter of law, for the negligence of its independent cleaning contractor. On February 16, 1990, Spencer filed a motion to alter or amend the judgment, which was denied on March 8, 1990. This appeal followed.

II.

Although there are two specific issues on appeal, Spencer ultimately argues that the district court erred in granting Kroger's motion for summary judgment because there are genuine issues of material fact, which must be decided by a jury. Summary judgment is appropriate only when the district court determines "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In addition, a motion for summary judgment must be viewed in a light most favorable to the non-moving party, and that party must receive the benefit of all reasonable inferences to be drawn from the underlying facts. Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). Finally, we note that, in diversity cases such as the instant action, we review the district court's conclusions of law, including the granting of summary judgment, de novo. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

A. Constructive Notice

Spencer argues that the district court erred in concluding that, as an essential element of his claim, he must establish that the hazardous condition (cleaning solution) had existed for a "sufficient length of time" to constitute constructive notice to Kroger. Spencer claims that, while this accurately states the "old" law in Missouri, ¹ the Missouri Supreme Court recently held that a plaintiff can make a submissible slip and fall case against a store owner without showing that the danger existed for a certain length of time. Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo.1989) (banc) (Sheil ). We agree.

In Sheil, the Missouri Supreme Court held that a box left in the aisle of a convenience store constituted a dangerous foreseeable condition, and that a jury could find from this evidence that the store owner breached his duty of due care. Id. at 781. The court noted:

Past cases have placed great emphasis on the length of time the dangerous item has been in the area in which the injury occurs.... 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. (emphasis added). The Missouri Supreme Court emphasized the importance of the fact that the store in question was a self-service type store in which customers and others not in the store's employ handled merchandise that, when misplaced, presented potential hazards to invitees. It noted that " 'the modern merchandising method of self-service poses a considerably different situation than the older method of individual clerk assistance. It is much more likely that items for sale and other foreign substances will fall to the floor.' " Id. (quoting Ciminski v. Finn Corp., 13 Wash.App. 815, 537 P.2d 850, 853 (1975) (Ciminski )).

In a companion case to Sheil, the Missouri Supreme Court reiterated its rejection of a rigid "length of time" rule, stating that "these [time] periods may not be so important as they once were, especially if the evidence shows that employees of the store were regularly in the area in which the accident occurred." Moss v. National Super Markets, Inc., 781 S.W.2d 784, 785-86 (Mo.1989) (banc) (Moss ). In Moss, the plaintiff slipped on some green liquid, which was spread over a portion of the store's parking lot. The court noted that Moss differed from Sheil in two respects. "The accident did not occur inside a self-service store, and there is no showing that the slippery substance consisted of merchandise handled by the store." Id. at 785. Despite these differences, the Moss court indicated that the plaintiff could make a submissible case, without evidence as to the length of time the substance was on the parking lot, if there were evidence of the defendant's method of operation, which indicated that the store's employees had had opportunity to observe the hazard. Because the record was devoid of such evidence, the Missouri Supreme Court remanded the case for a new trial "so as to permit the plaintiff to offer evidence about the occasion for store employees to go onto the parking lot." Id. at 786.

Kroger argues that the Sheil decision is inapplicable to the instant case because its holding is limited to factual situations in which a dangerous condition is caused by a product that is sold by the store. In support of its argument, Kroger points to language in the Sheil opinion, in which the court noted the additional dangers present in self-service stores due to the fact that customers handle merchandise and assume part of the work previously performed by store employees. "The store owner necessarily knows that customers may take merchandise into their hands and may then lay articles that no longer interest them down in the aisles.... [and] therefore, must anticipate and must exercise care to guard against dangers from articles left in the aisle." Sheil, 781 S.W.2d at 780.

Kroger also argues that, in Moss, the Missouri Supreme Court recognized the distinction between a fall caused by a product of the store and a fall involving an article (or substance) not sold by the store. Kroger claims, in addition to the distinctions noted by the court, that Moss differs from Sheil in that the court merely remanded the case for a new trial in order to determine whether there was evidence that the hazard was within the control of the defendant. Kroger concludes that in cases where the cause of the dangerous condition was outside the control of the store, as in the instant case, proof of constructive notice by evidence showing that the hazard existed for a sufficient time is still required under Missouri law. We disagree.

We believe that neither Sheil nor Moss indicates that the Missouri Supreme Court intended to limit its holdings in the manner suggested by Kroger. It appears to us that, in light of Sheil, the Missouri courts no longer strictly adhere to the "length of time" rule for proof of constructive notice, whether the hazard results from a product of the store or some other device or condition. Instead, the Sheil decision indicates that " '[i]n choosing a self-service method of providing items, [the owner] is charged with the knowledge of the foreseeable risks inherent in such a mode of operation.' " 781 S.W.2d at 781 (quoting Ciminski, 537 P.2d at 853). Foreseeable risks extend beyond a given store's products.

Kroger's limited interpretation of Sheil is also controverted by the fact that the Missouri Supreme Court adopted the Restatement (Second) of Torts analysis of the duty of care with respect to the safety of...