Pilley v. K-Mart Corp.

849 S.W.2d 293, 1993 Mo. App. LEXIS 398, 1993 WL 71638
CourtMissouri Court of Appeals
DecidedMarch 17, 1993
DocketNos. 18141, 18152
StatusPublished
Cited by6 cases

This text of 849 S.W.2d 293 (Pilley v. K-Mart Corp.) 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
Pilley v. K-Mart Corp., 849 S.W.2d 293, 1993 Mo. App. LEXIS 398, 1993 WL 71638 (Mo. Ct. App. 1993).

Opinion

PARRISH, Chief Judge.

In No. 18141, K-Mart Corporation (defendant) appeals from a judgment entered in favor of Marie C. Pilley (plaintiff) for personal injuries sustained in a fall that occurred at a store operated by defendant. In No. 18152 (the “cross-appeal”), plaintiff appeals from the trial court’s denial of her request for pre-judgment interest. This court affirms in both appeals.

Defendant contends that plaintiff failed to make a submissible case; that, therefore, the trial court erred in denying defendant’s motions for directed verdict and motion for judgment notwithstanding the verdict.

Upon review of this question the Court accepts as true the evidence and reasonable inferences therefrom in a light most favorable to the prevailing party and disregards contradictory evidence. Community Title v. Roosevelt Federal S & L, 796 S.W.2d 369, 371 (Mo. banc 1990); Cope v. Thompson, 534 S.W.2d 641, 644 (Mo.App.1976). 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. Lewis v. En-virotech Corp., 674 S.W.2d 105, 111 (Mo. App.1984).

Georgescu v. K-Mart Corp., 813 S.W.2d 298, 299 (Mo. banc 1991).

On December 4, 1989, plaintiff drove from her residence in Republic, Missouri, to a store operated by defendant (the K-Mart store) on West Sunshine Street in Springfield, Missouri. She arrived at the K-Mart store “about 11:00 [a.m.], or 12:30, or maybe a little before, maybe 12:00 o’clock.” She was alone. Plaintiff parked her car in the K-Mart store parking lot “[a]bout 20, 25 feet” from the door of the store. She walked from her car into the store.

Plaintiff took a shopping cart and proceeded to the department where she planned to shop. She shopped for “maybe a half hour,” picked out several items to purchase, then “headed to the check-out.” She explained what happened:

Q. [By plaintiff’s attorney]: What happened as you approached the checkout lane?
A. [By plaintiff: As I turned in, made a left turn there into the check-out, something happened and I landed on the floor, I didn’t know what hit me.
Q. What — did your body strike the floor?
A. Yes.
Q. And what part of your body hit the floor first?
A. I guess my seat, I don’t know, as I came down, and then I landed flat on my back and kind of hit my head on one of those racks that were there.

Plaintiff was stretched out on the floor. She described how she felt:

Just shock, I mean I just blanked, I was in terrific pain, and I didn’t know what happened to me. I was in total shock.

An employee of defendant asked plaintiff if she wanted a wheelchair. Plaintiff said that she did. She was helped from the floor and into a wheelchair. She remained in that area, “eight or 10 feet” from the check-out register, for about five minutes. She testified about what she observed:

I just observed one of the employees coming to where I had fallen and wiping up something off the floor, whatever, and I figured that’s what I fell on, whatever that was.

She saw the employee wipe up the substance on the floor with a paper towel and walk away. There were no “yellow cones or markers” or any indication that anything was wrong with the area prior to when plaintiff fell.

Other witnesses observed “a yellowish liquid” at the entrance to the check-out lane where plaintiff had fallen. One wit[295]*295ness described the liquid as “apple juice, possibly.” Another described a puddle, a liquid, “maybe pale yellow, something like that”; “probably six to eight inches, somewhere in there.” The second witness, one of defendant’s employees, had seen plaintiff being helped up by customers. She estimated that plaintiff was “[mjaybe a foot” from the puddle. She remembered getting paper towels from “under register 10” for someone to clean up the substance. She remembered that plaintiffs clothing was wet.

Plaintiff testified that nothing in her cart was broken when she fell; that there was nothing in the cart that was breakable. She was asked how she left the K-Mart store after her fall. She explained.

Well, one of the employees wheeled me out to the car and I managed to get in it somehow, with a struggle, and the lady employee helped me in and was a little concerned if I could drive. I said, well, I’ll check the brake and see if I can handle it, otherwise, no, which I did, and she was concerned and asked me to call, which I did when I got home.

Plaintiff refused medical treatment or transport by ambulance. She drove directly to her home. Other facts applicable solely to No. 18152 will be stated in the part of the opinion that addresses the points raised in that appeal.

No. 18141

Defendant claims that plaintiff’s evidence failed to show that any negligence of defendant “caused or contributed to cause any damage to plaintiff” (Point 1), and failed to show that defendant was negligent because the evidence did not show that defendant “had any notice of any dangerous condition prior to plaintiff[’s] ... fall” (Point 2).

Defendant argues, quoting from Fowler v. Terminal R.R. Ass’n of St. Louis, 372 S.W.2d 497 (Mo.App.1963):

[Shipping is a result rather than a cause. It may be produced by negligence, one’s own or another’s, and it may occur in the absence of any negligence at all. It is a common mischance invited by the ordinary act of walking....

Id. at 502. Defendant, in suggesting that there is a lack of evidence of its negligence, points to the language of Cato v. Modglin, 545 S.W.2d 307 (Mo.App.1976), quoting from Wallander v. Hicks, 526 S.W.2d 848, 850 (Mo.App.1975), regarding an appellate court’s obligation in ascertaining if a sub-missible case was made before the trial court.

[AJppellate courts cannot “imagine the existence of evidence, when none in fact exists, or supply missing evidence, to flesh out an otherwise insubmissible case, nor can it spring inferences from nowhere upon which to predicate submis-sibility.”

545 S.W.2d at 311.

Both Cato and Wallander are cases involving automobile accidents. Cato involved a multiple vehicle accident and Wal-lander involved a vehicle that struck a pedestrian. The principles enunciated in those cases are sound.

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902 S.W.2d 305 (Missouri Court of Appeals, 1995)
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Chambers ex rel. Abel v. Rice
858 S.W.2d 230 (Missouri Court of Appeals, 1993)

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Bluebook (online)
849 S.W.2d 293, 1993 Mo. App. LEXIS 398, 1993 WL 71638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pilley-v-k-mart-corp-moctapp-1993.