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K-Mart Corp. v. Hardy

March 18, 1999

K-MART CORPORATION
v.
MARION A. HARDY, A MINOR, BY AND THROUGH HIS NATURAL AND LEGAL GUARDIAN, DEBORAH HARDY AND LARRY HARDY, SR.



The opinion of the court was delivered by: Sullivan, Presiding Justice

DATE OF JUDGMENT: 07/24/97

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: AFFIRMED - 03/18/99

EN BANC.

STATEMENT OF THE CASE

¶1. Hardy filed this action in Harrison County Circuit Court on December 11, 1990, for injuries received from a slip and fall on May 23, 1990, at the D'Iberville, Mississippi, Kmart Store. On November 27, 1991, Kmart filed a motion for summary judgment. On October 20, 1992, the trial court entered an Order granting Kmart's motion for summary judgment and dismissed the action. Hardy perfected a timely appeal to this Court. On February 16, 1996, this Court entered an opinion which affirmed the decision of the trial court in part, reversed and remanded in part. The initial trial of this action began on November 19, 1996, and ended in a mistrial on November 20, 1996. The second trial of this cause began on February 3, 1997, and resulted in a mistrial on February 4, 1997. The third trial of this action, which is the subject of this appeal, began on July 22, 1997, and the jury returned a verdict on behalf of Hardy in the amount of $250,000.00. Final judgment reflective of the jury verdict was entered by the trial court on July 24, 1997. Kmart filed its Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial or in the Alternative Motion for Remittitur on August 8, 1997. On September 10, the trial court entered an Order Overruling Motion for New Trial and/or Judgment Notwithstanding the Verdict. Kmart filed its Notice of Appeal on September 19, 1997. On September 22, the trial court entered an Amended Order Overruling the Motion for Judgment Notwithstanding the Verdict, New Trial and Remittitur. Kmart raised the following issues in its appeal:

I. WHETHER HARDY FAILED TO OFFER ANY EVIDENCE THAT THE MANNER IN WHICH THE "END CAP" WAS CONSTRUCTED PROXIMATELY CAUSED HIS INJURIES?

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADMIT EVIDENCE OF THE PROFFERED TESTIMONY OF ROBERT REUTER AND THE DEMONSTRATIVE EXHIBIT OF A RECONSTRUCTED PORTION OF THE "END CAP"?

III. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, EVIDENCING BIAS AND PREJUDICE?

STATEMENT OF THE FACTS

¶2. During their lunch hour on May 23, 1990, Marion Hardy (hereinafter "Hardy") and his brother, Larry Hardy, Jr., went to the Kmart store in D'Iberville, Mississippi to buy paint which would be used to paint some shelves they were making to take back to school with them at the end of the summer. Hardy testified that the two proceeded down different aisles to the home improvements department. Hardy arrived at the paint section first, and as he rounded the aisle, he slipped in a paint spill on the floor and fell. Hardy further testified that when he fell he heard something go pop, and as his brother approached him to try to help him up, he told Larry that he felt something pop and he did not know what it was. Hardy noted that the pop sensation was in his lower back right around the belt line.

¶3. As Hardy gathered himself and stood up, he began to look around to see what he had stepped on to cause the fall. He testified that there was paint on the floor and that there was a paint can on the floor which was the same color as the paint cans on the display or "end cap" (displays located on the end of an isle), right above where he had fallen. Hardy stated the paint spill was approximately a two and a half to three feet circular puddle, and the paint can and lid were located on the edge of the spill. He noted that the paint can was located approximately a foot and a half away from a stacked paint can display at the end of the aisle. Hardy further testified that the paint can was laying on the floor on its side and that the top of the can was lying right in front of the can.

¶4. Hardy testified on cross-examination that he had no independent recollection of how many levels of paint cans were stacked in the aisle display at the time of his fall. However, he then testified that the photographs taken by his private investigator accurately reflected his recollection of the end cap.

¶5. Larry Hardy, Hardy's brother, testified at trial that he was half-way down the aisle in the home improvement section of the Kmart when he heard a loud thump. As Larry approached his brother, Hardy, he saw Hardy on his rear-end with his feet out in front of him. Hardy told Larry that something in his back had popped. Larry further testified that he saw a paint can on the floor right next to the end cap and further testified that the color of the paint can on the floor was the same as the paint cans on the display.

¶6. Mr. Reuter, the assistant merchandising manager at Kmart at the D'Iberville in May of 1990, testified that he shared with the operations assistant manager the responsibility of making sure the merchandise on the end-caps were properly displayed. Reuter noted that the corporate office in Michigan supplied the store with booklets which had pictures depicting how to properly construct the merchandise displays. He further stated that he did not know who was responsible for setting up the end-cap display that was present on May 23, 1990. However, Reuter testified that as the assistant merchandising manager, he would not have configured the end-cap in the manner which was displayed in photograph exhibits 2 and 3 as it was unsafe. Reuter stated that as he approached the scene of the spill, he observed a paint can the same color as the paint cans of the display directly above where the paint can that spilled was located.

¶7. Reuter next explained that when a display consisted of more than two or three layers of paint cans a thin layer of shelving material was normally placed, in a recessed fashion, between each two to three layers of cans. He noted that if a display did not have shelving material between every two to three layers of paint cans, it would be unsafe. Reuter was then shown a photograph of the paint can end display taken by Hardy's investigator soon after the incident occurred and was asked whether any shelving material was evident. Reuter stated that because it was Kmart procedure was to recess the shelving material for aesthetic purposes, he believed that the shelving material would not have been evident in the photograph. Thus, he was not able to discern any shelving material in the photo.

¶8. It was at this point in the trial that Kmart's counsel requested the trial Judge's permission to allow Reuter to assemble a portion of an end cap to show why the shelving material was not evident in the photograph. However, Kmart only wanted to build the end-cap two levels high when it was clear that the end-cap display at the time in question was at least four levels high. Therefore, Hardy's counsel objected. The jury was excused, and Reuter was allowed to assemble a proffer exhibit consisting of paint cans stacked two levels high with shelving material in between the layers. Photographs of the proffered exhibit were taken for preservation of the issue on appeal. Hardy's counsel also objected on the ground that Kmart did not include the proffered exhibit in its initial response to a request for production of documents which requested Kmart to produce a copy of all documentary or demonstrative evidence it intended to use at trial, and that Kmart had failed to supplement its response. Counsel for Kmart stated that the response was complete at the time it was made and only recently had the issue of the visibility of the stabilizing material become significant. He further stated that the demonstrative evidence was being offered solely for rebuttal purposes and that pursuant to Rule 26(f), the demonstration was not a discovery violation. Based on the rules governing discovery, the trial Judge sustained Hardy's objection.

¶9. Jerry Duprey, the assistant working for Kmart who cleaned up the spill, also testified in the present case. He testified that Hardy located him in the garden department and informed him that he had almost slipped in a paint spill and that someone needed to clean it up. He explained that when he approached the scene of the spill, the can of paint was no more that about a foot from the corner of the end-cap. He further testified that the paint was concentrated in a circular area, and that the paint did not splash or splatter into the surrounding area. He also stated that he did not notice if there were any tracks or footprints to indicate if someone had walked through or slipped in the paint. However, he did note that the can of paint on the floor was exactly the same type of paint as on the end-cap display, white latex.

¶10. After all testimony and evidence was presented, the jury returned a verdict on behalf of Hardy in the amount of $250,000.

DISCUSSION OF THE ISSUES

I. WHETHER HARDY FAILED TO OFFER ANY EVIDENCE THAT THE MANNER IN WHICH THE "END CAP" WAS CONSTRUCTED PROXIMATELY CAUSED HIS INJURIES?

¶11. Kmart argues that Hardy failed to make a jury issue on negligence because he failed in the burden of proof on the elements of both breach and proximate cause. Thus, Kmart believes that the trial court erred in denying its Motion for JNOV. Hardy asserts that he provided legally sufficient evidence of negligence and that the verdict of the jury should be affirmed.

ΒΆ12. When reviewing the trial court's denial of a Motion for Judgment Notwithstanding the Verdict, this Court's scope ...


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