Wal-Mart Stores, Inc. v. Kelton

• Decision Date: 01 April 1991
• Docket Number: No. 90-343,WAL-MART,90-343
• Citation: 305 Ark. 173,806 S.W.2d 373
• Parties: STORES, INC., Appellant, v. Edith Ann KELTON and Dale T. Kelton, Appellees.
• Court: Arkansas Supreme Court

Page 373

806 S.W.2d 373

305 Ark. 173

WAL-MART STORES, INC., Appellant, v. Edith Ann KELTON and Dale T. Kelton, Appellees.

No. 90-343.

Supreme Court of Arkansas.

April 1, 1991.

Ben Core, Fort Smith, for appellant.

Stephen M. Sharum, Fort Smith, for appellees.

BROWN, Justice.

This is an appeal of a slip and fall case. Appellant Wal-Mart Stores, Inc. asserts that there was insufficient evidence for the trial court to award appellee Edith Ann Kelton judgment for $20,973 for medical expenses following a jury trial.

We affirm the trial court's judgment.

On September 3, 1988, at 10:10 a.m. appellees Edith Ann Kelton and Dale T. Kelton, who are married, purchased a few items at a Fort Smith Wal-Mart store. The Keltons were accompanied by Edith Ann Kelton's sister, Martha Sue Nichols. It was raining and, according to the Keltons and Nichols, a puddle of water had collected inside the store between the checkout counter and the exit door. Edith Ann Kelton slipped on the water when leaving (her sister said she fell) and injured her shoulder and lumbar back.

The Keltons and Nichols left the store after the incident, went to their car in the parking lot, but then returned minutes later and told the assistant manager on duty what had happened. The water was still there, according to Mrs. Kelton. The Keltons gave their address and telephone number to the assistant manager. No customer incident report was completed by any Wal-Mart personnel. After the Keltons filed a complaint in court some five months later, Wal-Mart conducted its first investigation into the incident.

A jury trial was held on July 31, 1990. Edith Ann Kelton described the collected water on the floor: "It was all spread out. It looked like tracks had been run through it." Later she said the water was "spread out around me ... like it had been trampled in or something, it was all around there." She also testified that Wal-Mart employees knew the water was there. Her sister testified that she felt a drop of water hit her face inside the store at the time of the incident. Dale Kelton said at trial that he saw that people had walked through the water "and splashed it around." He added: "I seen tracks leading to the door." A Wal-Mart witness did verify that Wal-Mart employees came into work through the exit door of the store. A tile was missing in the store's ceiling, according to Mr. Kelton. Wal-Mart employees contradicted this testimony.

At the trial's conclusion, one verdict form completed and signed by the jurors found for the defendant Wal-Mart and against the Keltons. A second verdict form awarded Edith Ann Kelton $20,973 for medical expenses. The trial court polled the jury on the two verdicts and the seeming inconsistency. The jury returned to the jury room and later submitted the first verdict with the names of all three parties crossed out. The verdict awarding Mrs. Kelton damages was resubmitted unchanged. No further objection was made by Wal-Mart's counsel to the two verdict forms.

Sufficiency of the Evidence

Wal-Mart moved for a directed verdict at the close of the appellees' case and then again at the close of all the evidence. Both motions were denied. Wal-Mart then moved for a new trial after the jury verdict and alternatively requested other post-judgment relief as well. That motion was never decided. In the directed verdict motions and motion for a new trial and other post-judgment relief, questions about the sufficiency of the evidence were raised.

In addressing the sufficiency issue we must first view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. Id.; see also Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983). A motion for a directed verdict should be denied only when there is a conflict in the evidence, or when the evidence is such that fair minded people might reach different conclusions. Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). Under those circumstances a jury question is presented and a directed verdict is inappropriate. Id.

It is not this court's province to try (or retry) issues of fact. Instead, this court examines the record to determine if there is substantial evidence to support the jury verdict. B-W Acceptance Corp. v. Norman Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Substantial evidence is defined as "that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture." Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 76, 671 S.W.2d 178, 181 (1984).

We have previously described the proof necessary for a plaintiff to prevail in a slip and fall case. The plaintiff must prove:

... either (1) that the presence of a substance upon the floor was the result of the negligence on the part of the appellee or (2) that the substance has been on the floor for such a length of time that the appellee's employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it.

Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 198, 777 S.W.2d 861, 862 (1989).

Wal-Mart vehemently argues that there was no proof of a foreign substance on the floor due to its negligence and further no proof that a substance, if any, remained on the floor for a length of time to evidence its failure to use ordinary care. Wal-Mart cites two other cases in support of its argument--J.M. Mulligan's Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989); and Skaggs Companies, Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986). Both cases are distinguishable. In Aultman there was no proof of any foreign substance presented to the jury. In White the plaintiff did testify about a mystery substance on the floor, but there was no testimony of what the substance was or how it got there. Moreover, in Dye v. Wal-Mart Stores, Inc., supra, there was no testimony by the plaintiff that there was any substance on the floor at the time and place she fell.

Testimony was presented at trial to support the Keltons' claim. It was raining on the day in question. Water was on the Wal-Mart floor between the counter and the exit door. Wal-Mart employees entered the store through this door. There were foot tracks through the water on the floor. One witness felt a water drop hit her face. Another saw that a tile was missing in the ceiling. The water was still there when the Keltons returned. No incident report was completed by Wal-Mart personnel. No investigation was done by Wal-Mart until five months later.

Though some of this testimony was contradicted by Wal-Mart witnesses, it collectively constitutes substantial evidence. The jury could readily infer that water had collected inside the building on the floor for an undue period of time and failure to wipe the floor clean or warn of its presence was a breach of ordinary care and, therefore, negligence.

We have examined the record to determine if there is substantial evidence to support the jury verdict, as we are required to do. See B-W Acceptance Corp. v. Polk 242 Ark. 422, 414 S.W.2d 849 (1967). Based on the evidence...