Kroger Co. v. Thompson

432 S.W.2d 31, 1968 Ky. LEXIS 312
CourtCourt of Appeals of Kentucky
DecidedSeptember 27, 1968
StatusPublished
Cited by12 cases

This text of 432 S.W.2d 31 (Kroger Co. v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kroger Co. v. Thompson, 432 S.W.2d 31, 1968 Ky. LEXIS 312 (Ky. Ct. App. 1968).

Opinion

STEINFELD, Judge.

Eldon Thompson, Jr., entered a Kroger grocery store on July 27, 1965, sometime between 11:00 a. m. and 1:00 p. m. for the purpose of purchasing merchandise. He obtained a grocery cart which was about his waist high, 1 to 1.½ feet across the rear and 2 to 3 feet long, and proceeded to shop. He had made one selection, when while looking for other merchandise, he approached the area where there was a line of refrigerated dairy cases. He slipped, fell and was injured.

[32]*32On his claim against the merchant the jury awarded him $18,212.49. From a judgment entered on that verdict, Kroger appeals. We affirm.

Kroger argues that it was entitled to a directed verdict at the close of the plaintiff’s evidence, at the close of all of the evidence and that its motion for judgment notwithstanding the verdict and its motion for a new trial should have been sustained. It contended and now argues that Thompson failed to establish by competent evidence the proximate cause of his fall and injury. It also contends that he did not satisfy the burden of proof required to establish negligence on the part of Kroger and relies on Bosler v. Steiden Stores, 297 Ky. 17, 178 S.W.2d 839 (1944) and Lane v. Cardwell, et al., Ky., 306 S.W.2d 290, 61 A.L.R.2d 302 (1957).

Kroger insists and its counsel argues vigorously that Thompson did not know what caused him to fall or what he fell upon or fell over and that the witnesses whom he introduced did not supply the testimony necessary to establish his claim under the many cases decided by this court on the subject, among which is Kroger Grocery & Baking Co. v. Spillman, 279 Ky. 366, 130 S.W.2d 786 (1939).

Thompson admitted that he did not see on what he slipped and fell but witnesses introduced in his behalf furnished adequate testimony upon which the case was properly submitted to the jury. French v. Gardeners & Farmers Market, 275 Ky. 660, 122 S.W.2d 487 (1938). The manager of the store admitted that there was water near the spot where Thompson fell. An employee of the Kroger Company testified that he saw a puddle of water on the floor “maybe a foot and a half long, maybe about a foot wide.” The employee was asked and answered as follows:

“Q. 16 Where was it with relation to the position of Mr. Thompson’s body?
A. Well, he was behind the puddle as far as, you know, as though he had slipped and fell backwards.
Q. 17 Do you know the source of the water that you saw there on the floor, Mr. Clay, or where it had come from?
A. Well, it apparently had leaked from under the dairy cooler.”
Q. 18 In your best judgment and according to your knowledge, Mr. Clay, from where did the water come from?
A. It came from underneath the dairy cooler. Because I had previously saw water leaking under the dairy cooler before so I assumed that it leaked under the dairy cooler that day.”
Q. 22 I believe you stated that you had seen water leaking around the dairy cooler prior to this day, is that right, Mr. Clay?
A. Y es, I have seen rags .and aprons, old aprons underneath the dairy cooler which were wet, in other words, they were trying to keep the water from leaking out into the aisle.”
Q. 26 You could see where his feet—
A. You could see exactly where he slip-ed.
Q. 27 Were there skid marks?
A. Yes, from the heel of his shoes.
Q. 28 Running from the heel of his shoe?
A. Right.”
Q. 44 I believe you stated that you had noticed this case leaking also ?
A. Yes, I noticed it once or twice previously.
Q. 45 Do you know how long before that was?
A. No.
[33]*33Q. 46 But it was on several occasions?
A. Oh, a couple of times I have noticed that they had rags underneath the coolers to absorb the water that was leaking from underneath the coolers.”

An engineer testified that water on a floor with vinyl covering such as was used in this store would cause the floor to become slick.

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Bluebook (online)
432 S.W.2d 31, 1968 Ky. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kroger-co-v-thompson-kyctapp-1968.