Wal-Mart Stores v. Regions Bank Trust Dept.

• Decision Date: 07 March 2002
• Docket Number: No. 01-839.,01-839.
• Citation: Wal-Mart Stores v. Regions Bank Trust Dept., 69 S.W.3d 20, 347 Ark. 826 (Ark. 2002)
• Parties: WAL-MART STORES, INC. v. REGIONS BANK TRUST DEPARTMENT, Guardian of the Estate of Michael Burkeen; Linda Burkeen, Individually, and as Guardian of the Person of Michael Burkeen.
• Court: Arkansas Supreme Court

69 S.W.3d 20

347 Ark. 826

WAL-MART STORES, INC. v. REGIONS BANK TRUST DEPARTMENT, Guardian of the Estate of Michael Burkeen; Linda Burkeen, Individually, and as Guardian of the Person of Michael Burkeen.

No. 01-839.

Supreme Court of Arkansas.

March 7, 2002.

Quattlebaum, Grooms, Tull & Burrow PLLC, by: Leon Holmes, Thomas G. Williams, and Patrick D. Wilson, Little Rock, for appellant.

Taylor, Halliburton, Ledbetter & Caldwell, by: Mark Ledbetter, Memphis, TN; and Lane, Muse, Arman & Pullen, by: Richard S. Muse, Hot Springs, for appellees.

TOM GLAZE, Justice.

This is an appeal from a jury verdict in favor of Michael and Linda Burkeen in their negligence action against Wal-Mart. In addition to asking this court to determine the sufficiency of the evidence, Wal-Mart also poses a challenge to two of the trial court's evidentiary rulings. Because the appeal presents a substantial question of law concerning the construction of a rule of evidence, jurisdiction is properly in this court under Ark. Sup.Ct. R. 1-2(b)(6).

We first turn to the facts of this case. About 6:45 p.m. on November 12, 1992, Michael Burkeen slipped and fell on a liquid substance on the floor of a Wal-Mart store in Hot Springs; the liquid apparently came from a broken snow globe that had been part of a Christmas display. He hit his head on the floor, and later reported that he had begun to experience memory problems. Through Linda, Michael sued Wal-Mart for negligence, alleging first, that the store had been negligent in how it stacked the display of snow globes, and second, that it had failed to inspect the floors and clean the liquid substance on the floor.¹

During discovery, Wal-Mart disclosed that it wanted to introduce evidence that Linda had pled guilty to theft of property. This felony conviction resulted from a check-kiting scheme in which she had been involved after Michael's slip-and-fall accident; however, upon her successful completion of probation, Linda's record was expunged. The expungement occurred prior to Michael's filing this suit. Wal-Mart also suggested that it would introduce the fact that Michael had pled nolo contendere to misdemeanor criminal mischief. Michael responded by filing a motion in limine to exclude evidence of his and Linda's convictions. Wal-Mart responded that the evidence of Linda's conviction was relevant to impeach her credibility, and that Michael's conviction—in particular, his conduct during the police investigation—was relevant to proving the extent of damages he allegedly suffered. The trial court granted the Burkeens' motion in limine, concluding that Linda's conviction had been expunged, and the evidence surrounding Michael's conviction would be more prejudicial than probative.

The matter proceeded to trial, and the jury found in favor of the Burkeens, awarding Michael $169,000 and Linda $67,000. From that jury verdict, Wal-Mart brings the instant appeal, arguing that 1) there was insufficient evidence to support the jury's finding of Wal-Mart's negligence; 2) the trial court erred in excluding evidence of Linda's felony conviction for theft of property; and 3) the trial court erred in excluding the audiotape and transcript of Michael Burkeen's interview with Police Chief Montie Sims regarding his knowledge of Linda's involvement in the check-kiting scheme.

For its first point on appeal, Wal-Mart argues that there was insufficient evidence to support the jury's finding that Wal-Mart was negligent. At the close of the Burkeens' case, Wal-Mart moved for a directed verdict, arguing that the Burkeens had failed to produce sufficient evidence to show that 1) Wal-Mart caused the snow globe to be on the floor, 2) the globe's liquid had been on the floor for any length of time, and 3) Wal-Mart had knowledge of the broken snow globe and of the substance on the floor, yet failed to remove it. The trial court granted Wal-Mart's motion as to the question of whether or not Wal-Mart had been negligent in its stacking of the snow globes, but denied it with respect to whether or not Wal-Mart knew or should have known of the presence of the substance on the floor.

Our standard of review of the denial of a motion for directed verdict is whether the jury's verdict is supported by substantial evidence. Ethyl Corporation v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). We will reverse only if there is no substantial evidence to support the jury's verdict and the moving party is entitled to judgment as a matter of law. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Caddo Valley, supra. It is not this court's place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury's verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Fayetteville Diagnostic Clinic v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001). Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id.

The principles that govern slip-and-fall cases have been frequently stated by this court. Those principles are set against the general backdrop that an owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Fayetteville Diagnostic Clinic, supra; Morehart v. Dillard Dep't Stores, 322 Ark. 290, 908 S.W.2d 331 (1995); Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). To establish a violation of that duty, the plaintiff must prove either: (1) that the presence of a substance upon the floor was the result of the defendant's negligence, or (2) the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997); Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997); Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). With respect to part two of this test, the burden is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). The mere fact that a person slips and falls does not give rise to an inference of negligence. Brunt v. Food 4 Less, Inc., supra. Also, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence, but instead, it must be proved that the substance was negligently placed there or allowed to remain. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993).

After the trial court granted a directed verdict on the issue of Wal-Mart's negligence in stacking the snow globes, the case proceeded to the jury on the second of the two theories noted above—i.e., that the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Viewed in the light most favorable to the Burkeens, the evidence at trial showed the following series of events. On November 12, 1992, Michael Burkeen was shopping for light switches at the Wal-Mart. He said that he went to the Christmas department to find a toy for one of his children, "made a right turn, and the next thing [he] knew [he] was lying on the floor." After the fall, he remembered going through the checkout line, but as he walked back to his truck, he had to hold onto other cars for support.

When Michael had not returned home by 11:00 p.m., Linda and her daughter Kristy Johnson went out to look for him. Linda testified that when she found Michael, he was slumped over the steering wheel of his truck in the Wal-Mart parking lot; when she opened the door of the truck, he was semi-conscious. Kristy went into the Wal-Mart to call 911, and Linda waited with Michael. According to Linda, he kept asking where he was, and he had a knot on his head. When the paramedics arrived, Michael was still confused, but was able to talk some. At the hospital, Linda noticed that he had given an incorrect address, and he seemed confused and unaware of where he was. Since the accident, she testified that his personality had changed, and that he had become forgetful and unable to communicate or work.

Debra Sharp was shopping in the same department as Michael at the time of the accident; she had noticed a "puddle of stuff" on the floor moments before, and had warned her little girl to walk around the water. Out of the corner of her eye, Sharp saw Michael fall and heard a "pop" as his head hit the ground. His shopping cart rolled into her after he fell. Sharp stated that she only noticed the puddle because she was looking down at her daughter, and would probably not have noticed it if her children had not been with her. She described the puddle as having a "milky color like when wax gets wet and then it starts to dry," and the puddle "might have been a little smaller than eight-by-twelve" inches. She did not remember seeing the parts of a broken snow globe on the floor, but did notice snow globes on the shelves as she was shopping. Sharp further related that, "[b]ecause there was a...