Fred's Stores of Tennessee, Inc. v. Pratt

67 So. 3d 820, 2011 Miss. App. LEXIS 428, 2011 WL 2816644
CourtCourt of Appeals of Mississippi
DecidedJuly 19, 2011
Docket2010-CA-00481-COA
StatusPublished
Cited by7 cases

This text of 67 So. 3d 820 (Fred's Stores of Tennessee, Inc. v. Pratt) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fred's Stores of Tennessee, Inc. v. Pratt, 67 So. 3d 820, 2011 Miss. App. LEXIS 428, 2011 WL 2816644 (Mich. Ct. App. 2011).

Opinions

ISHEE, J.,

for the Court:

¶ 1. Fred’s Discount Stores of Tennessee, Inc. (Fred’s) was found liable for negligence after one of its patrons, Jesse Pratt (Pratt), was injured after slipping on a plastic grocery sack on the floor near a [822]*822checkout stand. The jury awarded Pratt $25,000 for her injuries.

¶ 2. Fred’s now appeals the verdict, arguing six issues. Because two of the issues involve the same subject matter, we have combined them. Fred’s asserts that the trial court erred by (1) refusing to grant a directed verdict in its favor; (2) refusing to grant its motion for a judgment notwithstanding the verdict (JNOV); (3) refusing to grant a new trial based on the court’s denial of placing medical records into evidence that showed Pratt had a preexisting condition to her left knee; (4) refusing to admit Pratt’s deposition testimony as part of Fred’s case-in-chief; and (5) refusing to grant a mistrial based on improper comments of Fred’s counsel in closing arguments. We find merit to issue three. Therefore, we affirm in part, and reverse and remand in part for further proceedings consistent with this opinion.

STATEMENT OF FACTS

¶ 3. On December 20, 2003, Pratt slipped and fell on a plastic shopping bag while checking out of a Fred’s discount store in Greenwood, Mississippi. After the fall, Pratt sat on a bench at the store for approximately ten minutes, complaining that she was in pain. The store manager gave her water and aspirin. Pratt then left Fred’s and continued shopping at a local grocery store. Later that day, she went to the emergency room, complaining of severe pain in her left knee and shoulder.

¶ 4. Pratt claimed she suffered severe injuries to her left knee and shoulder and filed suit against Fred’s, stating that her injuries were the proximate result of Fred’s failure to maintain its premises in a reasonably safe condition for its invitees.

¶ 5. At trial, John Beck, an eyewitness to the incident, testified that he was standing behind Pratt in the checkout line and saw her slip and fall on a plastic shopping bag. He also stated that he saw several plastic shopping bags on the floor prior to Pratt’s fall. Pratt testified that after she fell, she saw the cashier pick the shopping bags up off the floor and throw them in the garbage.

¶ 6. Dr. Walter Moses, Pratt’s treating physician at the emergency room, testified that Pratt suffered an anterior cruciate ligament tear, medial meniscus tear, and a tear to the lateral meniscus in her left knee. He stated that Pratt’s injuries were caused by her fall at Fred’s and striking her knee, and not caused by arthritis.

¶7. Pratt had been previously treated for back pain and arthritis in her right knee at the Greenwood Orthopedic Clinic, and had complained about pain in both knees during visits to the clinic in 2001 and 2003. She received several treatments to both knees, including injections into the knees before her accident at Fred’s. However, these records relating to Pratt’s medical treatments prior to the fall were not allowed into evidence at trial.

¶ 8. In her deposition which was read aloud at trial, Gayle Prewitt, a manager at the Fred’s store in Winona, stated that according to Fred’s safety policies, all employees at Fred’s are responsible for insuring that the aisles are clean and clear of debris. She also read from the employee safety policy, which instructed that all employees were responsible for “inspecting the store constantly to be aware of the physical hazards which could cause physical injury or property damage.” In addition, the employee safety policy stated that “every employee is responsible for reporting unsafe conditions to the store manager.”

¶ 9. Prewitt admitted that a plastic bag on the floor would be considered an unsafe condition and a tripping hazard. She fur[823]*823ther testified that the plastic shopping bags were required to be kept in a bag well by the cashier, and not on the floor, and that only Fred’s employees handled the plastic bags. Pratt also entered into evidence a Fred’s document that instructed employees to “keep all aisles clear. Do not have tripping hazards.”

¶ 10. In the closing argument, Pratt’s attorney referenced the fact that Fred’s failed to call a doctor as its witness to testify as to Pratt’s medical records. Fred’s attorney objected after the close of the arguments, and the court sustained the objection. The court further advised the jury that “any objection or comments as to who counsel opposite calls or does not call is inappropriate.” A jury found Fred’s liable for negligence and awarded Pratt $25,000 for her injuries.

DISCUSSION

I. Directed Verdict

¶ 11. Fred’s argues that it was entitled to a directed verdict because Pratt failed to present evidence that Fred’s was negligent. Fred’s claims that Pratt did not prove that an employee of Fred’s caused any plastic bags to be on the floor, or the plastic bags were on the floor for a sufficient amount of time for any employee to have known about it or to have constructive knowledge that the bags were on the ground.

¶ 12. On appeal, this Court employs a de novo standard of review for motions for a directed verdict. Ducksworth v. Wal-Mart Stores, Inc., 832 So.2d 1260, 1262 (¶ 2) (Miss.Ct.App.2002). We consider the evidence in the “light most favorable to the non-moving party and give[ ] that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial.” Id. (citation omitted). “If those facts and inferences, so viewed, can be said to create a question of fact from which reasonable minds could differ, then the matter should be submitted to the jury, and the directed verdict should not be granted.” Id.

¶ 13. Fred’s asserts that Pratt’s testimony was inadequate to substantiate proof of negligence because Pratt merely testified that she was in the store, fell, and thought that she had slipped on a plastic bag. She did not know how the plastic bag came to be on the floor or how long it had been there. Fred’s claims that its duty was to discover the bags in a reasonable amount of time and clean up the bags, if its employees did not cause the bags to be on the floor.

¶ 14. Pratt- testified that she slipped on a plastic shopping bag in the checkout aisle. Beck testified that he witnessed Pratt’s fall, which he testified was a result of the Fred’s plastic shopping bag being in the aisle. Dr. Moses, Pratt’s treating physician, testified that the injuries Pratt suffered were directly related to Pratt’s fall. Fred’s did not provide evidence to rebut any of the testimony.

¶ 15. Fred’s own representative, Prew-itt, admitted in her testimony that the plastic shopping bag in the aisle was a dangerous condition. She also admitted that the plastic shopping bags are only handled by Fred’s employees and should not be on the floor of the store. In her deposition, Prewitt read aloud a portion of Fred’s employee safety policy, which stated that all employees were responsible for “inspecting the store constantly to be aware of the physical hazards which could cause physical injury or property damage.”

¶ 16. Based on the testimony and evidence presented at trial, we find that a reasonable jury could conclude that the plastic shopping bag on the floor in the [824]*824checkout aisle was present due to Fred’s negligence.

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Fred's Stores of Tennessee, Inc. v. Pratt
67 So. 3d 820 (Court of Appeals of Mississippi, 2011)

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Bluebook (online)
67 So. 3d 820, 2011 Miss. App. LEXIS 428, 2011 WL 2816644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freds-stores-of-tennessee-inc-v-pratt-missctapp-2011.