Wal-Mart Stores, Inc. v. McClinton

• Decision Date: 17 December 1993
• Docket Number: WAL-MART
• Citation: 631 So.2d 232
• Parties: STORES, INC., and Sheldon A. Day v. Clifton Gaines McCLINTON. 1921041.
• Court: Alabama Supreme Court

Page 232

631 So.2d 232

40 A.L.R.5th 873

WAL-MART STORES, INC., and Sheldon A. Day v. Clifton Gaines McCLINTON.

1921041.

Supreme Court of Alabama.

Dec. 17, 1993.

Paul D. Myrick of McRight, Jackson, Dorman, Myrick & Moore, Mobile, for appellants.

Gaines C. McCorquodale and Jacqualyn M. Sheffield of McCorquodale and McCorquodale, Jackson, for appellee.

HORNSBY, Chief Justice.

The defendants, Wal-Mart Stores, Inc., and Sheldon A. Day, appeal from a judgment based on a jury verdict in favor of the plaintiff, Clifton McClinton, in an action alleging negligence. We affirm.

McClinton testified that on January 24, 1992, he entered the Wal-Mart store in Thomasville, that he went to the sporting goods department to look for a "turkey yelper," that while walking down an aisle he approached two wooden gun cabinets that were displayed side by side, and that as he neared the end of the aisle where the gun cabinets were located his left foot jammed against something and he fell to the floor. He stated that after he fell he saw a piece of wood molding lying in the aisle and heard an employee of Wal-Mart say that he had fallen on a piece of wood off the gun cabinet. McClinton testified that he did not see the piece of wood before he fell. Some Wal-Mart employees testified that the piece of wood was not on the floor before McClinton fell.

McClinton also testified that the gun cabinets protruded into the aisle approximately 6 inches. Sheldon Day, the store manager, who was also named as a defendant in this action, described each cabinet as being 5 feet 10 inches high and being 30 inches wide at the base, with a piece of decorative wood molding attached to the bottom of the base. He stated that this molding was 30 inches long and 1 inch wide and that it extended 1/8 inch beyond the base on each side of the cabinet.

McClinton testified that as a result of his fall he experienced pain in his left wrist and shoulder, and that he has had to have arthroscopic surgery on his knee. He said that at the time of the trial he was still suffering from soreness in his knee and that the soreness limited his daily activities. Also, he testified that he had incurred $7,036.25 in total medical expenses as a result of the accident. The jury returned a verdict in favor of McClinton for $18,000. Wal-Mart and Day appeal from a judgment based on that verdict.

In Campbell v. Burns, 512 So.2d 1341, 1343 (Ala.1987), this Court set out the following standard of review for a jury verdict:

"Upon review of a jury verdict, we presume that the verdict was correct; we review the tendencies of the evidence most favorably to the prevailing party; and we indulge such reasonable inferences as the jury was free to draw from the evidence. We will not overturn a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust."

(Citation omitted.)

Wal-Mart and Day argue that the trial court erred in denying their motion for directed verdict because, they say, McClinton failed to make a prima facie showing of negligence. They contend that he presented no evidence that they had actual or constructive knowledge of the potential hazard in displaying the cabinets. In Maddox v. K-Mart Corp., 565 So.2d 14 (Ala.1990), this Court summarized the applicable law in "slip and fall" cases:

"[A] storekeeper is under a duty to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers. However, the storekeeper is not an 'insurer of the customer's safety,' and is liable for injury only if he 'negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition.' The plaintiffs must prove that the injury was proximately caused by the negligence of [the storekeeper] or one of its servants or employees. Actual or constructive notice of the presence of the substance must be proven before [the storekeeper] can be held responsible for the injury. Furthermore, the plaintiffs must prove (1) that the substance slipped upon had been on the floor a sufficient length of time to impute constructive notice to [the storekeeper]; or (2) that [the storekeeper] had actual notice that the substance was on the floor; or (3) that [the storekeeper] was delinquent in not discovering and removing the substance."

565 So.2d at 16.

Citing Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978), Wal-Mart and Day argue that the burden of proof stated in Maddox is applicable in this case. However, the facts in Tice are different from those in this case. In Tice, the plaintiff slipped and fell in the defendants' yard. She did not know what caused her fall, and there was no evidence that the owners had created the condition that caused her fall. Here, however, there is evidence that Wal-Mart, by displaying the protruding gun cabinet with its easily detached molding, created a hazardous condition that caused the plaintiff's fall. Thus, because this judgment is based on evidence that the owner acted negligently in creating the dangerous condition, rather than in negligently failing to discover and remove a foreign substance, other case law is controlling. Dunklin v. Winn-Dixie of Montgomery, Inc., 595 So.2d 463 (Ala.1992).

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