Vinson v. National Super Markets, Inc., 42311

• Decision Date: 01 September 1981
• Docket Number: No. 42311,42311
• Citation: 621 S.W.2d 373
• Parties: Sylvia VINSON, Plaintiff-Respondent, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 373

621 S.W.2d 373

Sylvia VINSON, Plaintiff-Respondent, v. NATIONAL SUPER MARKETS, INC., Defendant-Appellant.

No. 42311.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 1, 1981.

Daniel E. Reuter, Peter R. Thompson, Jr., St. Louis, for defendant-appellant.

Warren Davis, Clayton, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Plaintiff seeks to recover damages for personal injuries sustained when she slipped and fell at defendant's grocery store in St. Louis County. A jury returned a verdict in favor of plaintiff and awarded $1,250 in damages. Defendant appeals.

On August 25, 1976, plaintiff drove to defendant's grocery store in order to purchase a birthday cake for a friend. Approaching the entrance to the store, plaintiff noticed a security guard standing near the display window approximately 10 feet behind the automatic glass doors. Plaintiff entered the store and walked five or six steps forward before turning right. Plaintiff passed through a wrought iron gate, which is the entrance to the main shopping area, and then took four to five steps when she slipped and fell in an area where a bottle of Pinesol had shattered. Plaintiff fell on her tailbone and sustained cuts from the broken glass. The security guard, an employee of Dana Photo Service who was stationed in the front of the store to advertise her employer's film to defendant's customers, and defendant's store manager came to the aid of plaintiff after the fall. Plaintiff was treated at DePaul Hospital as an out-patient and was released later that evening.

Defendant contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiff failed to present sufficient evidence to submit the question of negligence to the jury. When determining the submissibility of a case, this court must consider the evidence in the light most favorable to the plaintiff and the benefit of all inferences that can reasonably be drawn therefrom. Brophy v. Clisaris, 368 S.W.2d 553 (Mo.App. 1963). As a business visitor of the defendant, plaintiff is afforded the legal protection of an invitee. "The owner or occupier is not an insurer of the business invitee's safety, and the basis of his liability is his superior knowledge of an unreasonable risk of harm which the invitee in the exercise of ordinary care, does not or should not know." Harbourn v. Katz Drug Company, 318 S.W.2d 226 (Mo. 1958).

In order to establish negligence, the plaintiff is required to show that defendant had either actual or constructive knowledge of the hazardous condition. Defendant is generally deemed to have actual notice if it is affirmatively shown that an agent of the defendant was aware of the existing danger. Ward v. Temple Stephens Company, 418 S.W.2d 935 (Mo. 1967). To constitute constructive notice, evidence must be presented that the hazard existed...