Yoste v. Wal-Mart Stores, Inc., No. 2000-CA-00732-SCT.

• Decision Date: 25 July 2002
• Docket Number: No. 2000-CA-00732-SCT.
• Citation: 822 So.2d 935
• Parties: Harry M. YOSTE, Sr. v. WAL-MART STORES, INC.
• Court: Mississippi Supreme Court

822 So.2d 935

Harry M. YOSTE, Sr. v. WAL-MART STORES, INC.

No. 2000-CA-00732-SCT.

Supreme Court of Mississippi.

July 25, 2002.

Charles T. Yoste, Starkville, Harry M. Yoste, Jr., Gulfport, John W. Christopher, Ridgeland, attorneys for appellant.

Edley H. Jones, III, Ridgeland, attorney for appellee.

EN BANC.

SMITH, P.J., for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Harry M. Yoste, Sr. appeals to this Court from a jury verdict in favor of Wal-Mart Stores, Inc. rendered in the Circuit Court of Madison County involving a slip and fall.

¶ 3. We hold that Yoste failed to present sufficient evidence to meet his required burden of proof as to causation of his trip and fall. Accordingly, we affirm the trial court.

FACTS

¶ 4. This case involves a trip and fall which occurred in the parking lot of the Wal-Mart store on Wheatley Street in Ridgeland, Mississippi. The plaintiff, Harry M. Yoste, Sr., alleged that as he approached the Wal-Mart store in Ridgeland on February 17, 1998, he tripped and fell on uneven pavement in the parking lot, sustaining injuries. Yoste brought the current action against Wal-Mart Stores, Inc., alleging that Wal-Mart negligently maintained its parking lot.

¶ 5. The case was tried before a jury in the Circuit Court of Madison County, Circuit Judge Samac S. Richardson, presiding. The jury returned a verdict in favor of Wal-Mart, and judgment was entered on the verdict on February 29, 2000. The trial court subsequently denied Yoste's Motion for Judgment Notwithstanding the Verdict, and, in the Alternative, for New Trial. Yoste timely appealed to this Court, raising two assignments of error:

I. WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF PREVIOUS ACCIDENTS.

II. WHETHER THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE PHOTOGRAPHS OF OTHER LOCATIONS.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF PREVIOUS ACCIDENTS.

¶ 6. At trial, Yoste proffered the testimony of two Wal-Mart patrons who also fell in the Wal-Mart parking lot. Marie Banes testified that four months prior to Yoste's fall, she tripped on uneven pavement and fell in the Wal-Mart parking lot. She testified that she reported her fall to Wal-Mart employees. Margaret Thomas stated that less than one month prior to Yoste's fall, she tripped on uneven pavement and fell in the parking lot. Both Banes's fall and Thomas's fall occurred approximately 60-80 feet from where Yoste fell. Yoste argues that this evidence was admissible for the purpose of showing that Wal-Mart had notice of the allegedly hazardous condition in its parking lot.

¶ 7. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Tatum v. Barrentine, 797 So.2d 223, 230 (Miss.2001) (citing Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997)). The trial court held that the proferred testimony was inadmissible for the purpose of showing that Wal-Mart had notice of the allegedly hazardous condition in its parking lot. We find that the trial court was well within its discretion in excluding this evidence.

¶ 8. Evidence of prior accidents may be used to show two things—the existence of a dangerous condition and the defendant's notice or knowledge thereof. Parmes v. Illinois Cent. Gulf R.R., 440 So.2d 261, 264 (Miss.1983) (citing Illinois Cent. R.R. v. Williams, 242 Miss. 586, 605-06, 135 So.2d 831, 839 (1961)). In the case sub judice, Yoste was attempting to prove that Wal-Mart had notice of the allegedly dangerous condition, the uneven pavement. Evidence of prior accidents, however, is admissible only upon a showing of substantial similarity of conditions. Id.

¶ 9. Even disregarding the fact that the prior accidents did not occur in close physical proximity to that at issue, it is clear from the record that Yoste failed to establish a sufficient factual basis regarding his own claim to enable the trial court to compare the facts of the other accidents to establish that they were, in fact, similar. The only similarity between the prior accidents and that of Yoste was that Yoste, Banes, and Thomas tripped and fell in the Wal-Mart parking lot. Yoste's own testimony indicates, though he claimed in this action that he tripped on uneven pavement in the parking lot, that he does not, in fact, know what caused him to fall. Yoste testified that he did not look down at the parking lot just before his fall and that, after he fell, he did not look back to examine the ground to determine what had caused him to fall. It was Yoste's impression, which he conveyed to family members, that he stepped in a pothole. In a recorded statement given several months after the alleged incident, Yoste stated that he had no idea what he tripped on. Though he claims in this action that he tripped on an unlevel portion of the parking lot, he admitted at trial that it was possible that he tripped on debris. Yoste simply did not submit evidence of his own fall to enable the trial court to find that the prior accidents were substantially similar.

¶ 10. The admission of the prior accidents, of questionable probative value in light of the fact that the accidents did not occur in the near vicinity of Yoste's fall, was exceedingly likely to prejudice the defense particularly in light of Yoste's failure to establish what caused him to fall. The danger existed that the jury would take the evidence that other falls were caused by uneven pavement as evidence that Yoste had in fact established that he, likewise, tripped on uneven pavement. Rule 403 of the Mississippi Rules of Evidence permits the exclusion of relevant evidence where its probative value, tenuous in light of the lack of physical proximity as well as Yoste's failure to establish causation, is substantially outweighed by its tendency to mislead, confuse or prejudice the jury. The trial court did not abuse its discretion in excluding the evidence of prior accidents.

II. WHETHER THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE PHOTOGRAPHS OF OTHER LOCATIONS.

¶ 11. Yoste also argues that the trial court erred in admitting numerous photographs of arguably similar defects in concrete surfaces, not only from areas in the vicinity of the Wal-Mart location, but from around the state as well. The pictures included parking lots near Wal-Mart as well as sidewalks at Mississippi State University and the parking lot at the office of Yoste's counsel. Yoste complains that these photographs were irrelevant and highly prejudicial.

¶ 12. Wal-Mart contends that the photographs were properly admitted on cross-examination of Yoste's safety expert, A.K. Rosenhan. It was Rosenhan's testimony that the unlevel concrete in the parking lot constituted a "dangerous condition." Wal-Mart argues that Rosenhan failed to base this opinion on any calculations or recognized methodologies. Wal-Mart asserts that the photographs were relevant to show "what members of the populous normally encounter in their day-to-day activities as they go about their business in the world" and to establish "that such conditions are indeed acts of nature occurring everywhere Yoste might visit." Wal-Mart states that "[o]nly by reference to the other parking lots and sidewalks could a jury decide for itself whether or not to accept or reject [Rosenhan's opinion]."

¶ 13. Wal-Mart's argument is tenuous. It raises issues more relevant to Rosenhan's qualifications as an expert and the admissibility of Rosenhan's testimony in general, rather than the admissibility of the photographs in question. However, even assuming the trial court erred in admitting these photographs, we find no reversible error. As stated previously, though Yoste claims in this action that he tripped on uneven pavement in Wal-Mart's parking lot, he does not, in fact, know what caused him to fall. Yoste did not look down at the parking lot just before his fall and he did not look back to examine the ground to determine what had caused him to fall. Yoste told family members that he stepped in a pothole. In a recorded statement given several months after the alleged incident, Yoste stated that he had no idea what he tripped on. Yoste admitted at trial that it was possible that he tripped on debris. We find that any harm done to Yoste via admission of these photos is minimal at worst. We find that even if the photographs had not been admitted, considering Yoste's conflicting statements, it is extremely unlikely that the jury would have concluded any differently.

CONCLUSION

¶ 14. For these reasons, the judgment in favor of Wal-Mart is affirmed.

¶ 15. AFFIRMED.

WALLER, COBB AND CARLSON, JJ., CONCUR. PITTMAN, C.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND GRAVES, J. DIAZ, J., NOT PARTICIPATING.

EASLEY, J., Dissenting.

¶ 16. I respectfully dissent from the majority's conclusion that the trial court did not err in excluding the evidence of the previous accidents that occurred within the same parking lot. At trial, Yoste proffered testimony from Banes and Thomas to prove that Wal-Mart had notice of the dangerous condition of its parking lot. Both ladies were patrons of the Wal-Mart in Ridgeland, Mississippi. This was the same Wal-Mart where Yoste allegedly tripped on February 17, 1998. Banes tripped and fell on October 26, 1997, and Thomas tripped and fell on January 25, 1998. Both testified that they tripped and fell on concrete that was raised higher than the other concrete. Both of their falls occurred within less than six months prior to Yoste's alleged fall on February 17, 1998. Banes testified that she reported the incident with Wal-Mart employees immediately after the incident, and she received calls from Wal-Mart's corporate office concerning her injuries. The testimony of Banes and Thomas established that they both tripped and fell in the same area of the Wal-Mart parking lot....