Neis v. National Super Markets, Inc.

631 S.W.2d 690, 1982 Mo. App. LEXIS 2817
CourtMissouri Court of Appeals
DecidedMarch 23, 1982
DocketNo. 42256
StatusPublished
Cited by9 cases

This text of 631 S.W.2d 690 (Neis v. National Super Markets, 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
Neis v. National Super Markets, Inc., 631 S.W.2d 690, 1982 Mo. App. LEXIS 2817 (Mo. Ct. App. 1982).

Opinion

SATZ, Presiding Judge.

This is a personal injury action. A jury awarded plaintiff $500 on her claim for personal injury and awarded her husband $280 on his claim for medical expenses and loss of consortium. Defendant appeals. We reverse.

We review the evidence in the light most favorable to plaintiffs. Plaintiff, Bernice Neis, was shopping in a self-service supermarket operated by defendant, National [691]*691Super Markets, Inc. She stopped in an aisle of canned goods, which were stacked five shelves high. The fifth shelf was about five feet from the floor. The cans were stacked three high on this shelf, and each can was four inches high. Plaintiff bent over to pick up a can from the bottom shelf and, as she did so, a can, apparently from the top shelf, fell, hit her on the head and injured her. No one was in the aisle when plaintiff entered it, and, as far as she knew, no one was behind her in the aisle when the can fell. There was no evidence of the number of other customers in the store at that time. There was no evidence showing when the cans in question were stacked nor when they were last inspected. Plaintiffs’ case was submitted to the jury on the theory of res ipsa loquitur and, as noted, she and her husband received verdicts in their favor.

Defendant raises four points on appeal. In each point, defendant argues that plaintiff failed to make a submissible case under the res ipsa loquitur doctrine. Although phrased differently, defendant’s four arguments can be distilled into one basic argument. Defendant argues that the probability of a third person causing plaintiff’s injury is at least as great as the probability that defendant’s negligence caused the injury. Since these probabilities are at least equal, defendant argues, plaintiffs failed to make a submissible case. We agree.

Res ipsa loquitur is a doctrine based upon circumstantial evidence. The doctrine permits a jury to infer negligence without proof of specific negligent conduct on the part of the defendant. In Missouri, we apply the doctrine and, thus, permit the inference when (1) the incident resulting in injury is of the kind which ordinarily does not occur without someone’s negligence; (2) the incident is caused by an instrumentality under the control of the defendant; and (3) the defendant has superior knowledge about the cause of the incident. E.g. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (Mo.banc 1932). The second element — control—focuses on the defendant as the possible negligent actor. As in any case of negligence, in order to make a submissible case, plaintiff must show that it was more probable than not that defendant was the cause of the negligence. See McCloskey v. Koplar, supra at 563. If plaintiff shows defendant was in exclusive control of the instrumentality which caused the accident, he has inferentially focused any negligence upon defendant. If plaintiff does not show defendant’s exclusive control of the instrumentality, he still may fix defendant with responsibility for the negligence by showing defendant had the right or power to control the instrumentality and the opportunity to exercise it. See, e.g., McCloskey v. Koplar, supra at 560. However, if plaintiff merely shows this constructive control by defendant, the inference that defendant’s negligence caused the accident does not necessarily follow. Plaintiff must, therefore, adduce additional evidence to show defendant’s responsibility. See Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 511 (1938). Plaintiff need not exclude every possible source of the negligence except defendant, but he must show it was more probable than not that defendant was the source of the negligence. Id. at 511. When plaintiff simply shows it was at least equally probable that the negligence was due to another, plaintiff has not made a submissible case. Id. at 511-512.

Defendant argues that, on the present record, the probability of defendant’s negligence being the cause of the injury was no greater than the probability of a third person’s negligence being the cause of the injury. Plaintiff’s evidence showed defendant’s store was a self-service supermarket, with open shelves stacked with canned goods. The canned goods in question were stacked three high. The condition of the display at the time of the accident was not shown. However, it is common knowledge that self-service stores invite their customers to inspect, remove and replace goods on the shelves. Copher v. Barbee, 361 S.W.2d 137, 143 (Mo.App.1962); Hart v. Emery, Bird, Thayer Dry Goods Co., supra at 512. This evidence raises the inference that an[692]*692other customer disarranged the canned goods and the disarrangement caused the canned goods to fall. This inference competes with the inference that defendant’s negligence caused the accident. Although these two competing inferences cannot be weighed with mathematical exactness, on the present record, it is clear the inference that a customer caused the accident is at least as probable as the inference that defendant’s negligence caused the accident. Since the probabilities are at least of equal force, plaintiff failed to make a submissible case. E.g., Hart v. Emery, Bird, Thayer Dry Goods Co., supra at 513.

This analysis fits comfortably with the analysis used in analogous cases. Thus, for example, in Hart v. Emery, Bird, Thayer Dry Goods Co., supra, the plaintiff was shopping in defendant’s department store when awnings piled on a display fell and struck her. Plaintiff’s evidence showed it was the custom and practice of customers to handle the merchandise displayed upon the tables, there were many customers who had access to the display and the display was disorderly. Based upon this evidence, the court held that plaintiff failed to make a submissible case and stated:

“[T]he inference that defendant piled the awnings on the table, or allowed them to remain so piled, in such a manner as to cause them to fall off, is no greater than that some customer had done so without defendant’s knowledge. Under such circumstances the matter is left to speculation and plaintiff made no case under [res ipsa loquitur].” Id. at 513.

In other cases involving objects falling in retail stores, the same analysis was used to examine the facts but the application of the doctrine of res ipsa loquitur was approved because the facts excluded the probability of interference by a third person. Thus, for example, in Pollard v. J. J. Newberry Co., 228 S.W.2d 398 (Mo.App.1950) the court held plaintiff made a submissible case under the res ipsa loquitur doctrine when her evidence showed that a basket hung for display above a counter fell and struck her. The Court distinguished Hart by noting there was no evidence that the basket was subject to handling by store patrons. Id. at 400. In Copher v. Barbee, 361 S.W.2d 137 (Mo.App.1962), the court held that res ipsa loquitur was applicable where plaintiff was injured when a soda bottle fell from a display, rolled towards her and exploded.

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