Smith v. Wal-Mart Stores, Inc.

6 S.W.3d 829, 1999 Ky. LEXIS 157, 1999 WL 1206300

• Court: Kentucky Supreme Court
• Decided: December 16, 1999
• Docket: 98-SC-849-DG
• Status: Published

Opinions

STUMBO, Justice.

In this personal injury action arising out of a fall in a Wal-Mart aisle, the sole question presented for our review is whether the evidence at trial was sufficient to support the jury verdict for Plaintiff, Garría Smith.

On August 24, 1993, 20-year-old Ms. Smith went shopping at the Pikeville Wal-Mart with her husband and infant child. While pushing a shopping cart in the do-mesticsodepartment, Smith suffered a back injury after slipping on a wet, blue liquid believed to be a melted Icee (also referred to as a Slushee or Slush Puppie). Smith testified that she did not see the spill before she fell, and had no idea how long the spill had been on the floor prior to slipping on it. Wal-Mart employee Katrina Hall testified that she had been through the same aisle within five to ten minutes before Smith fell, and that she had seen no spill on the floor at that time. Ms. Smith, who was pregnant at the time of her fall, sought medical treatment for her back problem in March of 1994, following the birth of her second child.

At trial in August of 1997, Wal-Mart made a motion for directed verdict at the close of Plaintiff’s proof, and again at the close all proof. Both motions were denied. The jury returned a verdict finding Wal-Mart at fault for Smith’s injuries and awarded damages in the amount of $52,-071.30. The trial court reduced the award to $50,000 because Plaintiff, in an effort to avoid removal to federal district court, had earlier stipulated her damages did not exceed that amount.

Wal-Mart then filed a post-trial motion for judgment notwithstanding the verdict, or, alternatively, for a new trial. Both motions were denied, and Wal-Mart appealed. Plaintiff filed no cross-appeal. The Court of Appeals reversed, holding the trial court should have directed a verdict for Wal-Mart. Citing Jones v. Jarvis, Ky., 437 S.W.2d 189 (1969), the Court of Appeals found Plaintiff had failed to show, by either direct or circumstantial evidence, that the Icee had been on the floor for a sufficient length of time such that Wal-Mart, in the exercise of ordinary care, should have known of its existence and remedied the situation.

Plaintiff now argues this Court should adopt a “mode of operation” theory of liability such as that espoused in the Kansas case of Jackson v. K-Mart Corp., 251 Kan. 700, 840 P.2d 463 (1992), in order to reverse the Court of Appeals and reinstate the jury’s verdict. Plaintiff, however, failed to file a protective cross-appeal to the Court of Appeals alleging the trial court erred in failing to instruct on the “mode of operation” theory, and, thus, the issue is not properly preserved for our review.

Fortunately for Plaintiff, however, we are inclined to reverse the Court of Appeals on a much more simple ground. The standard of review of a trial court’s denial of a motion for directed verdict is set forth in Lewis v. Bledsoe Surface Min. Co., Ky., 798 S.W.2d 459 (1990). There we stated:

Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “ ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’ “

Id. at 461-62 (citations omitted) (emphasis added).

The instant case is easily distinguishable from the Jones case relied upon by the Court of Appeals wherein the plaintiff slipped upon a banana peel, fell, and injured herself. In Jones, absolutely no evidence was introduced at trial to indicate how long the banana peel was on the floor prior to the plaintiffs slipping upon it. Jones, 437 S.W.2d at 189-90. Here, Plaintiff was entitled to the reasonable inference that because it was in liquid form when she slipped upon it, the Icee, which is normally found in a semi-frozen state, remained on the floor for a sufficient period of time to allow the ice to melt. This being so, the question arose as to whether the length of time it takes for an Icee to melt was a sufficient amount of time during which Wal-Mart, in the exercise of ordinary care, should have discovered the spill’s existence and remedied the situation. This is a question of fact and was properly submitted to the jury.

Because there was indeed sufficient circumstantial evidence of Wal-Mart’s negligence to submit the case to the jury, we reverse the decision of the Court of Appeals and reinstate the jury’s verdict.

JOHNSTONE and KELLER, JJ„ concur. COOPER, J., concurs by separate opinion, in which LAMBERT, C.J., and GRAVES, J., join. WINTERSHEIMER, J., dissents by separate opinion.