Actual knowledge of a dangerous condition is shown if "an agent or employee [of the defendant] knew of the dangerous condition." Taylor v. F.W. Woolworth Co., 592 S.W.2d 210, 211 (Mo.App. 1979); accord Hunt v. National Super Markets, Inc., 809 S.W.2d 157, 159 (Mo.App. 1991); Vinson v. National Super Markets, Inc., 621 S.W.2d 373, 375 (Mo.App. 1968). McIntyre v. M. K. Department Store, Inc., 435 S.W.2d 737, 740-41 (Mo.App. 1968).
Prier v. Smitty's Supermarket,Inc., 715 S.W.2d 579, 580 (Mo. App. S.D. 1986). In such cases, liability to a business invitee is premised upon the owner's superior knowledge of a defective or dangerous condition on his premises which results in injury. Hunt v. Nat'lSuper Mkts., Inc. , 809 S.W.2d 157, 159 (Mo. App. E.D. 1991). When the owner of a business has actual or constructive knowledge of a dangerous, foreseeable condition, he has the duty to prevent injuries resulting therefrom.
"The liability of a defendant store owner in [slip and fall] cases is based upon his superior knowledge of a defective condition on his premises which results in injury." Hunt v. National Super Mkts., 809 S.W.2d 157, 159 (Mo.Ct.App. 1991) (citation omitted). Accordingly, the district court instructed the jury that it could not assess fault against Wal-Mart unless it believed that Wal-Mart knew about the plastic band or by using ordinary care, could have known about the band.
1. Actual or Constructive NoticeDefendants argue that "[t]he notice requirement has traditionally been a strict requirement" and contend that a lack of actual notice defeats Plaintiffs' case. [Doc. 46, p. 6] (citing Hunt v. National Super Markets, Inc., 809 S.W.2d 157 (Mo. Ct. App. 1991); Hayes v. National Super Markets, Inc., 612 S.W.2d 819 (Mo. Ct. App. 1981)). Yet, as noted above, land owners must warn invitees against both known dangers and those that would be revealed by inspection, commonly known as constructive notice.
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.
Prier v. Smitty's Supermarket, Inc., 715 S.W.2d 579, 580 (Mo. App. S.D. 1986). In such cases, liability to a business invitee is premised upon the owner's superior knowledge of a defective or dangerous condition on his premises which results in injury. Hunt v. National Super Mkts., Inc., 809 S.W.2d 157, 159 (Mo. App. E.D. 1991). Thus, to find the Jones Store liable, Mathis was required to prove it had actual or constructive knowledge of the slippery substance on the floor.