Gatley v. Wal-Mart Stores, Inc.

16 S.W.3d 711, 2000 Mo. App. LEXIS 469, 2000 WL 309302
CourtMissouri Court of Appeals
DecidedMarch 24, 2000
DocketNo. 23067
StatusPublished
Cited by8 cases

This text of 16 S.W.3d 711 (Gatley v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gatley v. Wal-Mart Stores, Inc., 16 S.W.3d 711, 2000 Mo. App. LEXIS 469, 2000 WL 309302 (Mo. Ct. App. 2000).

Opinion

PHILLIP R. GARRISON, Chief Judge.

A jury returned a verdict for Chris Gat-ley (“Plaintiff’) in the amount of $25,000 and assessed 25% of the fault to him in his claim for personal injuries against Wal-Mart Stores, Inc. (“Wal-Mart”). Wal-Mart appeals from the judgment entered by the trial court in the amount of $18,750, claiming that the trial court erred in overruling its motion for a directed verdict at the close of all of the evidence, and in giving a verdict directing instruction. We reverse.

Plaintiff fell as he left a Sam’s Club store in Springfield, Missouri. The fall occurred about five to ten feet outside the exit door, on the sidewalk where Plaintiff said there was “a lot of traffic in and out” of the store. Plaintiff testified that he fell in a “slick spot,” which was a substance that was “clear, maybe brownish tinted,” and which he did not see before the fall. The “slick spot” had a streak through it after Plaintiff fell, and he said that his shoe then had a gritty, greasy feel to it. He also said that he believed he had entered the store through the exit door and did not see the spot then. A witness, who helped Plaintiff get up after the fall, also testified that there was a “liquid” where Plaintiff fell.

A “greeter” working just inside the doors, about ten to fifteen feet from where Plaintiff fell, saw him “slip and fall,” and went to help him. When she did, she saw a “slippery substance” on the sidewalk where the fall occurred, which she described as a “slippery oil spill, some type of oil,” which was “[bjrown to clear,” but she was unable to say what the substance was. She could not see the substance on the sidewalk until she got right up to Plaintiff after he fell, she had not gone out the doors that Plaintiff used to exit the store, and she was unable to say how long she had been stationed at the doors prior to the fall. The doors through which Plaintiff left the store were open that day, and there was testimony indicating that the “greeter” would have had a clear view from inside the store to the parking lot, except when that view was obstructed by people coming in and out of the store.

The store also employed “cart attendants” who went in and out of the front doors on what was called a “routine” or “ongoing” basis. Their movement in and out of these doors was also described as a “frequent occurrence.” There was no evidence, however, as to when the last of such employees had gone in or out of those doors before the fall.

Wal-Mart’s first point relied on is based on the trial court’s failure to sustain its motion for directed verdict at the close of all the evidence. It contends that Plaintiff did not make a submissible case because “there was no evidence whatsoever that any [of its employees] had done anything to cause any substance on the sidewalk ..., or knew of it, and nothing from which the jury could have determined that the condition had existed for a sufficient length of time to charge [Wal-Mart] with constructive notice.” It argues that Plaintiff was required to establish actual or constructive knowledge of a dangerous or defective condition, and that in order to [713]*713establish constructive notice, the condition must have existed for a significant length of time or the facts must be such that the defendant should have reasonably known of its presence.

We review the denial of a motion for directed verdict by reviewing the evidence and all permissible inferences in the light most favorable to the plaintiff and disregard contrary evidence and inferences, and on the evidence so viewed, determine whether the plaintiff made a submissible case. Judy v. Arkansas Log Homes, Inc., 923 S.W.2d 409, 416 (Mo.App. W.D.1996); Wvrm-Senter Const Co. v. Katie Franks, Inc., 816 S.W.2d 948, 944 (Mo. App. W.D.1991). We are not required or permitted, however, to supply missing evidence or to give Plaintiff the benefit of unreasonable, speculative, or forced inferences. Hunt v. National Super Markets, Inc., 809 S.W.2d 157, 158 (Mo.App. E.D. 1991). The jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony. Georgescu v. K Mart Corp., 813 S.W.2d 298, 299 (Mo. banc 1991).

In Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo. banc 1989), the Missouri Supreme Court made a significant departure from previous slip and fall cases which required evidence that a condition had existed for a sufficient length of time so that a storeowner should have known of the dangerous condition. It described the prior cases as holding that the storeowner is charged with responsibility for known danger but has only minimal duty to anticipate dangers. Id. at 780. Sheil involved a fall in a self-service store caused by a box of store merchandise in the aisle. There was apparently no showing about how long the box had been there or who placed it on the floor, but the court said that the precise time a condition has existed will not be so important a factor as it once was. Id. It said that more important will be the method of merchandising and the nature of the article causing the injury, i.e., whether the article is of the type held for sale in the area where the fall occurred. Id. The Supreme Court held that the plaintiff could make a submissible case, and said that “[cjustomers who are invited to handle merchandise assume part of the work previously performed by store employees and present an additional danger”; the “box in the aisle was a dangerous, foreseeable condition, and the store had the duty to use due care to protect customers against dangers of this kind.” Id. at 780-81. It also said, “[w]e conclude that the jury could have found that the plaintiff was injured by a hazard that could have been expected in the store by reason of its method of merchandising and that the defendant was derelict in its duty to take reasonable steps to protect customers against the dangers presented by merchandise in the aisle.” Id. at 782.

In the instant case, the fall did not occur inside the store, but rather on the sidewalk outside the exit doors. Therefore, this case is more factually similar to another case decided by the Missouri Supreme Court the same day as it decided Sheil. In Moss v. National Super Markets, Inc., 781 S.W.2d 784 (Mo. banc 1989), the plaintiff fell on a green liquid on the pavement as she stepped from the sidewalk onto a drive of defendant’s parking lot. The substance on the pavement was two to three feet in diameter, was within a few feet of the exit door of defendant’s store, and had car tracks and at least ten footprints through it. There, defendant argued, as does Wal-Mart in the instant case, that a submissible case had not been made because there was no evidence that any employee had caused the spot or knew of it, and there was no evidence from which the jury could have determined that the condition existed a sufficient length of time to charge defendant with constructive notice of its existence. Id. at 785. The Missouri Supreme Court noted that there were factual distinctions with the Sheil case in that the accident in Moss

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Bluebook (online)
16 S.W.3d 711, 2000 Mo. App. LEXIS 469, 2000 WL 309302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatley-v-wal-mart-stores-inc-moctapp-2000.