Summary
holding that, since there was no evidence suggesting that the spilled liquid had been on the floor for more than "a few minutes," the plaintiff could not recover for her slip and fall
Summary of this case from Creighton v. U.S.Opinion
CIVIL ACTION NO. 98C-02-177-JOH.
Submitted: February 18, 2000.
Decided: March 14, 2000.
Upon Motion of Plaintiffs for New Trial — DENIED Upon Motion of Plaintiffs to Strike Defendant and Third-Party Plaintiff's Opposition to Plaintiff's Motion for New Trial — MOOT
Robert K. Pearce, Esq., and William L. Doerler, Esq., of Trzuskowski, Kipp, Kelleher Pearce, P.A., attorneys for plaintiffs
Richard D. Abrams, Esq., of Heckler, Frabizzio Durstein, attorney for defendant and third-party plaintiff
Roger D. Landon, Esq., of Murphy, Spadaro Landon, attorney for third-party defendant
MEMORANDUM OPINION
Plaintiffs Lois P. and George F. Short move for a new trial after a jury found defendant Wakefern Food Corporation, known as Shop Rite, not negligent.
FACTUAL BACKGROUND
During a lunch break from her job at Autotote, Mrs. Short went into a Newark area Shop Rite around 12:45 to 1:10 p.m. on September 13, 1996 to get lunch at the salad bar. She was accompanied by a friend and co-worker, Ramona Williams. Short was in front while they were going through the salad bar. While in the area of the desserts, her right foot slipped on something causing her to lose her balance. She managed, however, to catch herself before falling all the way to the floor.
After seeing Short slip, Williams touched the floor with her shoe. She described it as very slippery devoid, however, of foreign substances like food or liquid. Short saw Williams rub her shoe across the area of the floor that, she said, was not wet but was shiny, glossier than the area around it. Both women described the shinier area as around 1 x 1 foot.
A Shop Rite employee, Candice Shaffer, came to the scene in response to a request from Williams. Short told her of the partial slip. Shaffer ran her shoe across the area Short described and told the jury that the area was slick but not wet. She did not recall if it were shinier, when she testified at trial, but, at an earlier deposition, may have said it was. She retrieved a rag and rubbed the affected area to dull its slickness.
Shaffer testified that on prior occasions in the deli area, the floor behind the counter was slippery after being waxed and very slippery, if something were spilled on it. She also said the slippery area was only behind the deli area. Because of complaints, the deli floor was no longer waxed.
Shop Rite's store manager testified that it was the supermarket's duty to keep the floors clean. He agreed there are liquids in the food served in the salad bar area. There are "porters" who go around cleaning, using a dry mop if there is nothing wet. The produce section of the supermarket, he said, gets special attention due to spills. The manager at the store on the day Short slipped told the jury that the cleaners spent no extra time in the salad bar area. There had been no slippery floor complaints about the salad bar prior to this date.
Because there was an indication that Short had slipped due to a slick floor, Shop Rite, in turn, sued Amerclean of New Jersey. For a period of time prior to this incident, Amerclean was under contract to nightly clean the store's floors.
Larry Spargiminio, owner of Amerclean, testified about his firm's cleaning schedule at this particular Shop Rite. He described the nightly cleaning schedule of dusting, mopping and buffing. Included in this was washing and scrubbing. Only a cleaner was used, no coating liquid. Periodically, there was some stripping and minimal re-coating but this less than a full stripping. Full stripping was done about every six months, going all the way down to the cleanest layer or vinyl itself. There would be recoating, perhaps six-to-eight coats worth.
The product used for re-coating was known as Spartan Trendsetter. The occasion for the six-month strip and re-coat closest to Short's slip was September 3-10, 1996 and it involved the whole store. There was no record or testimony about when, during this period, the floor around the salad bar was stripped and re-coated.
Spargiminio had never received a complaint from Shop Rite about slippery floors. He also knew of no complaints about slippery or slick floors in the deli area. He was the only person who could authorize his employees to stop coating in the area behind the deli counter or anywhere else. It should be noted that one of Shop Rite's managers was unaware, too, of any such complaints.
Trendsetter, the coating product, is manufactured by Spartan Chemical Company. That company develops institutional, as distinct from residential, cleaning products. Thomas Mitchell, a former employee of Spartan who had been in research and development, testified in this case. He told the jury about Trendsetter which, he said, has a two percent wax content. Wax, he stated, is less durable, but Trendsetter is more durable. It is used in schools, hospitals and office buildings. He described the procedure for testing a product such as this for "static coefficient," which, of course, in this instance meant its non-slip characteristics, the lower the coefficient, the less slippery. Also, he said about three-to-five coats are applied to get the desired gloss. But, the number of coats applied does not make it more slippery, i.e., increase the static coefficient. Nor does buffing do so either. He is unaware that misapplication of Trendsetter increases its static coefficient. If there is misapplication, he said, it causes streaking, not slipperiness or slickness. In sum, he said, Trendsetter played no role in Short's slip.
Short never added Amerclean as a defendant. She did, however, seem to suggest that there was possibly a foreign substance — oil, grease from food — on the floor or that Shop Rite had allowed this small slick spot to exist after Amerclean's re-coating. There also was testimony that for a period of time prior to Short's slip on September 13th, Shop Rite had placed floor mats around the salad bar. According to store witnesses, however, the store removed them because they became trip hazards but how long they had been there or when they were removed prior to this incident is unclear. Shop Rite did keep floor mats in the produce area.
There was, of course, a lot of testimony about the injuries Short suffered. Since the jury never reached damages, that evidence will not be reviewed here. As mentioned, the jury determined Shop Rite had not been negligent. Since it made that determination, it did not consider Shop Rite's claim against Amerclean.
APPLICABLE STANDARD
A jury's verdict is assumed to be correct. The Court will not set it aside unless it is clear the jury disregarded the evidence or the rules of law. To be set aside, the jury's verdict must be against the great weight of the evidence.
Young v. Frase, Del.Supr., 702 A.2d 1234, 1236-37 (1997).
Riegel v. Aastad, Del.Supr., 272 A.2d 715, 717-18 (1970).
Storey v. Camper, Del.Supr., 401 A.2d 458, 465 (1979).
DISCUSSION
A storekeeper such as Shop Rite is duty-bound to keep its premises in a reasonably safe condition for the use of its customers. The storekeeper is responsible for injuries to customers caused by defects or dangerous conditions of which there was actual knowledge or which could have been discovered by such reasonable inspection as other reasonably prudent storekeepers would consider as necessary.This was the statement of Delaware law given to the jury. Short argues that under the facts of this case, Shop Rite has to be liable and that the jury's verdict was against the great weight of the evidence. It matters not, she contends, whether she slipped on a slick, dry floor or on a liquid substance spilled on the floor from the salad bar.
Short's arguments are flawed. She relies upon the testimony that employees working behind the deli counter encountered a slippery floor after it was "waxed" (as they described it). From this, she deduces the dry, slippery floor by the salad bar was due to the same thing. The store employees supposedly complained about the deli floor and the "waxing" was stopped. One Shop Rite manager, however, was unaware of these complaints. Spargiminio of Amerclean was also unaware of anything like this. He also said he was the only one who could instruct his workers to cease applying new coating. In short, whether or not it was the coating that caused a slick surface in the deli area was in dispute. Added to that was Mitchell's testimony that Trendsetter, the coating used, is not slick. No one rebutted this expert testimony.
While the jury is free to reject such testimony, there was ample basis to accept it. First, Mitchell was very knowledgeable about Trendsetter. Second, there had been no complaints to Amerclean of slippery floors by Shop Rite. Third, the conditions behind the deli counter are prone to slippery substances getting on the floor and key people were never told the condition of the floor coating alone was causing problems in that area. Further, there was no linkage to the supposed problems in the deli area to the salad bar or any other area in Shop Rite. It seems peculiar, at best, that the problem would exist only in the deli area and no where else in the store and only in a 1 x 1 foot area in the salad bar.
Longoria v. State, Del.Supr., 168 A.2d 695, 704 (1961).
Short's argument was and is that Shop Rite alone was liable because it had a minimum of three days to find this 1 x 1 foot slick section of floor. She slipped on September 13th; Amerclean could have stripped and re-coated the floor as late as September 10th providing adequate time for constructive notice.
But, Short ignores several things in this contention. One, she sued only Shop Rite which could have severely undercut her argument to the jury that the slippery floor, not a liquid, caused her to slip. True, if Amerclean's work left a slippery spot in an observable spot for three days where Shop Rite's employees clean or should clean, it had constructive notice. If the jury, however, accepted Mitchell's testimony that Trendsetter does not cause a slippery surface, even if misapplied, Short's argument fails. Also, the jury could have determined that Shop Rite would have discovered the slippery surface, if it had been there, and since it did not, the spot was never there.
In sum, the jury's rejection that the floor was slick due to Trendsetter or its application and Shop Rite's overlooking it for at least three days is not against the great weight of the evidence.
Short, however, argues in the alternative. She contends Shop Rite was liable because it allowed a liquid to get on the floor and exercising diligent inspection should have discovered it. This approach, too, is flawed. The testimony from Short, her friend Williams and the store employee, Shaffer, was that the floor was not wet; merely slick. Relying upon the alternative argument of a liquid spill does not resonate well with claiming the floor was slick but not wet.
Relying upon the contention of a liquid spill causing the slip has its own problems. The first and obvious is notice. Short does not rely upon actual notice in any of her contentions be they a wet slick or dry slick floor. She can only rely upon constructive notice.
Short was using the salad bar during lunch hour, a time presumably when other persons had been using the salad bar. The spill could have been there seconds or even a few minutes before she came along. But, such a period of time, even with Shop Rite exercising due care, would be insufficient to give the requisite constructive notice. It would be fair for the jury to conclude that this is what happened and that Short had failed to meet her burden that Shop Rite had constructive notice of a dangerous condition.
Short also points to the fact that Shop Rite knew it was more likely there would be spills in the produce area and kept the mats there. But, again correctly, she notes the mats around the salad bar were removed on some date prior to her slip. She seems to argue two results from these facts. One is that Shop Rite was aware of spills around the salad bar. Why else have the mats there? The other is that having such notice, it was negligent to remove them. This argument, of course, undercuts her approach that it was a dry, slick area she slipped on and runs counter to her choice not to sue Amerclean. Such inconsistencies would be obvious to the jury. In addition, there was no evidence indicating a reasonable storekeeper had to keep mats around a salad bar. Again, the jury's verdict in this circumstance would not be against the great weight of the evidence or against applicable legal principles.
Even though Short agreed to the statement of law given to the jury about a storekeeper's duties and now again still concurs it is correct, she shifts ground post trial. She has cited to this Court an unreported Hawaii case in support of a new legal principle. The Hawaii case shifts the focus on the burden of proof from the manner of the specific accident to the proprietor's mode of operation. Under this doctrine, the plaintiff must prove that the proprietor's mode of operation was such that it was reasonably foreseeable that the dangerous condition would occur.
See supra at 4-5.
Gump v. Walmart Stores, Inc., Haw.Ct.App., C.A. No. 21670, 1999 WL1042561 (November 17, 1999).
The Hawaii court acknowledged this was a change in traditional Hawaii law governing proprietors. Hawaii's traditional law is very similar or identical to Delaware's law; the law used in this case. It is too late to so shift the legal ground rules. Any change in long-standing Delaware law would have to come from our Supreme Court. In sum, the jury's verdict that Shop Rite was not negligent was not against the great weight of the evidence.
CONCLUSION
For the reasons stated herein, the motion of plaintiffs Lois P. and George F. Short for a new trial is DENIED. IT IS SO ORDERED.
With this disposition of their motion, the Court considers moot their motion to strike Shop Rite's response.
HERLIHY, J.