David v. Pueblo Supermarket

740 F.2d 230
CourtCourt of Appeals for the Third Circuit
DecidedJuly 24, 1984
DocketNo. 83-3180
StatusPublished
Cited by25 cases

This text of 740 F.2d 230 (David v. Pueblo Supermarket) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David v. Pueblo Supermarket, 740 F.2d 230 (3d Cir. 1984).

Opinion

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This negligence action was instituted by a business invitee against the owner and operator of a supermarket chain for personal injuries allegedly sustained as a re-suit of a slip and fall in one of the defendant’s supermarkets. The defendant appeals from an adverse jury verdict awarding the plaintiffs, mother and child, compensatory and punitive damages.

The defendant asserts on this appeal that the district court committed reversible error in denying its motion for judgment notwithstanding the verdict or, in the alternative, a new trial because (a) the question of punitive damages submitted to the jury was premised upon an inadmissible and insufficient hearsay statement; (b) evidence as to plaintiff’s prior testimony regarding the cause of her injuries was excluded and (c) plaintiffs’ negligence claims were submitted to the jury without sufficient evidence. Moreover, the defendant claims that the court abused its discretion in denying its request for a remittitur.

After a careful examination of the entire record, we agree with the defendant that there is insufficient evidence to support the award of punitive damages. Consequently, we will vacate the award of punitive damages. In all other respects, however, we will affirm the judgment of the district court.

I.

Plaintiff-appellee, Juliette Berkeley (“Berkeley”) initiated this negligence action individually and on behalf of her son, plaintiff-appellee, Kenrick David, seeking damages for personal injuries. Berkeley testified that while grocery shopping on May 1, 1979 at a supermarket owned and operated by Pueblo Supermarkets of St. Thomas, Inc. (“Pueblo Supermarkets”), she slipped and fell on a substance later identified as cottage cheese. At the time of the fall, Berkeley was approximately eight months pregnant and weighed 217 pounds. The evidence presented at trial indicates that, while in the company of Hugh David and a friend, Rosanell Phipps (“Phipps”), Berkeley fell twice, once directly on her stomach.1 She claimed to have suffered injuries to her back and knee as well as to her [233]*233unborn child. Hugh David, the father of Kenrick David, testified that another shopper, Susan Jacobs (“Jacobs”), in the same aisle at the time of Berkeley’s fall, stopped and stated that she had informed “them” of the substance on the floor “about an hour and a half ago.” Berkeley testified that Susan Jacobs stated she just told “them” about the substance while Phipps recalled only that Jacobs told Berkeley “to be careful.”

The defense introduced evidence at trial that on May 30, 1979, five days prior to giving birth, Berkeley was involved in an altercation on a bus with one Maude Tonge. In a criminal proceeding on August 17, 1979,2 arising out of the assault, Berkeley testified that she had been hit in the stomach by Tonge.

On June 4, 1979, Berkeley was admitted to Knud Hansen Memorial Hospital in St. Thomas in active labor. A pelvic examination revealed that the unborn child’s left arm had prolapsed into the birth canal and that his shoulder was impacted against Berkeley’s pelvic bone, necessitating a caesarean section. Kenrick David was subsequently born with numerous injuries to his upper left extremities, including a bruised and swollen left arm and shoulder, an inability to fully extend his left arm, immobility of his left fingers and a probable fracture of the left elbow joint.

Juliette Berkeley and Kenrick David alleged that their injuries occurred as a result of Berkeley’s fall at Pueblo Supermarket. Pueblo Supermarket denied liability on the ground that Kenrick David’s injuries were caused either by the assault upon Berkeley five days prior to Kenrick David’s birth and/or the medical complications Berkeley experienced during childbirth. An expert medical witness appearing on behalf of the plaintiffs testified that Berkeley’s fall at the supermarket was the most probable cause of Kenrick David’s injuries. Defendant’s medical experts, on the other hand, testified that either the complications during delivery or the assault on the bus caused Kenrick David’s injuries.

The jury found for the plaintiffs and awarded Kenrick David $80,000 in compensatory damages and Berkeley $30,000 in compensatory damages. Additionally, the jury awarded each plaintiff $50,000 in punitive damages.

II.

This court must determine “whether, viewing the evidence in the light most favorable to the plaintiff and guided by applicable principles and rules of law, a jury could reasonably have imposed liability” on Pueblo Supermarket. Rumsey v. Great Atlantic and Pacific Tea Company, Inc., 408 F.2d 89, 89-90 (3d Cir.1969) (in banc). The plaintiffs had the burden of establishing negligence on the part of Pueblo Supermarket by a preponderance of the evidence. The plaintiffs had to establish that the store or its agent was negligent in that the supermarket had either direct or constructive notice of the foreign substance on the floor as a potentially dangerous condition. Restatement (Second) of Torts § 343 (1965). The plaintiffs attempted to prove notice on the negligence issue as well as on the issue of punitive damages solely by hearsay testimony.

We will therefore address first the admissibility of the hearsay statement as an “excited utterance.” Assuming arguendo that the statement was properly admitted into evidence, we will then consider (a) whether it was sufficient to support liability for negligence and an award of compensatory damages and (b) whether it was sufficient evidence to support an award of punitive damages.

A. Admissibility of Hearsay Statements-Excited Utterances

Slip and fall cases involving foreign substances on the floors of grocery markets present the plaintiffs with a difficult [234]*234task of proof. The major issues ordinarily involve the following:

(1) Was there a foreign substance on the floor?
(2) What notice, either actual or constructive, did the employees or the management have of this particular condition which involves “an unreasonable risk of harm” to the business invitees?
(3) Absent direct testimony proving actual notice, was the foreign substance on the floor long enough to give management or employees constructive notice of this potential “unreasonable risk of harm”?

See generally, Restatement (Second) of Torts § 343 (1965).

Normally there is no problem in establishing the presence of a foreign substance on the floor — the plaintiff can testify as to what he or she observed. However, the issue of prior notice to the store, either actual or constructive, of an unreasonable risk of harm is more difficult to establish. A customer does not send an inspection team before walking down the aisles of a store which he or she will visit. Thus, even though one proves the presence of a foreign substance at the time of the fall, the mere presence of the foreign substance does not establish whether it had been there a few seconds, a few minutes, a few hours or even a few days before the accident.3 Confronted with this dilemma and without direct testimony as to how long

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Cite This Page — Counsel Stack

Bluebook (online)
740 F.2d 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-v-pueblo-supermarket-ca3-1984.