DocketNumber： 01-5893
Judges： Keith, Krupansky, Clay
Filed Date： 6/4/2003
Status： Precedential
Modified Date： 10/19/2024
CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. KRUPANSKY, J. (pp. 862-869), delivered a separate dissenting opinion.
OPINION
Plaintiff, Sandra Morris, appeals from the district court’s judgment granting the motion for judgment as a matter of law in favor of Defendant, Wal-Mart Stores, Inc., at the close of Plaintiffs case-in-chief in this negligence action wherein Plaintiff seeks damages from Defendant for the injuries that she allegedly sustained as a result of a slip and fall on Defendant’s premises. Because we believe that when viewing the evidence and all permissible inferences most favorably for Plaintiff, there is material evidence to support a verdict for Plaintiff, we REVERSE the district court’s order and REMAND the case for trial.
BACKGROUND
On September 27, 1998, Plaintiff and her husband, Michael Morris (“Morris”), were shopping at Defendant’s “Sam’s Club” store located in Memphis, Tennessee. Morris was pushing the shopping cart and Plaintiff was slightly behind Morris on his left hand side. The two were walking through the freezer section of the store when, after rounding a corner, Plaintiff slipped on a wet substance thought to be water and fell next to a small portable freezer known as a “spot box.” At the time of her fall, Plaintiff was between Morris and the spot box. Morris noticed Plaintiffs “feet go up” as she fell while hitting the spot box and the cart that Morris had been pushing. According to Morris, in the course of the fall Plaintiff struck her legs on the spot box and shopping cart, landed on her lower back and buttocks, and then lay completely flat. Plaintiff attempted to pull herself up using the cart that Morris was holding, but slipped half-way up and fell a second time. Plaintiff was allegedly screaming as these events occurred, and described the fall as “violent.” (J.A. at 35, 72.)
Some of Defendant’s employees approached the scene to lend assistance. Once Plaintiff was finally standing up, she noticed that her clothes were “soaked,” including her shoes. Plaintiff testified that she believed that the liquid in which she fell was water from the spot box freezer. Plaintiff claimed that the water felt cold, but was unsure whether the cold feeling was attributable to the water temperature itself or to the surroundings inasmuch as she was in the freezer section of the store. One of the employees called for store manager Kenneth Kanizar, who arrived on the scene shortly thereafter. Kanizar ordered an employee to get a mop and clean up the liquid. Defendant’s employee Betty Baird testified that she was the individual who cleaned up the water after Plaintiff fell. Baird stated that she used some paper towels to clean up the water which, by that time, was about ten inches in diameter and “[r]ight there under the drain of the freezer.” (J.A. at 94.)
Kanizar took a statement from Plaintiff, which was written by Morris and signed by Plaintiff. The statement provided by Plaintiff at the time of the fall was read into evidence at trial and provided: “Turned corner in frozen food area and fall
Plaintiff testified that Kanizar communicated to them that it was his belief that the liquid substance present on the floor was water that had leaked from the spot box freezer. Kanizar “pointed out” to Plaintiff and Morris that the plug on the bottom of the spot box freezer was out. (J.A. at 40.) Kanizar further communicated to Plaintiff and Morris that the spot box freezer was new and that he was afraid that it may not be functioning properly so he wanted it immediately removed from the floor, particularly since it had not been “out but a very short period of time.” (J.A. at 84.)
Morris escorted Plaintiff out of the store in a wheel chair provided by Defendant, and took her to a hospital emergency room. Plaintiff was discharged from the hospital after x-rays were taken and medication was prescribed for the pain. The following day Plaintiff was severely bruised and “could barely walk.” (J.A. at 42.) She saw her doctor who advised Plaintiff to stay in bed and off of her feet for a week; Plaintiff complied with her doctor’s advice.
Plaintiff filed this negligence action against Defendant in the circuit court of Shelby County, Tennessee on June 29, 1999, and Defendant removed the matter to the United States District Court for the Western District of Tennessee on August 9, 1999 on the basis of diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). Thereafter, the parties consented to the case being tried by a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(2), and the case proceeded to trial. Following Plaintiffs case-in-chief, Defendant moved for judgment as a matter of law, claiming that Plaintiff failed to proffer evidence to show that Defendant had notice, actual or constructive, of the water, and that Plaintiff could not rely upon the doctrine of res ipsa loquitur inasmuch as Plaintiff failed to demonstrate that Defendant was in exclusive control of the spot box freezer. Plaintiff argued that she was not attempting to show notice, and in fact admitted that she could not prove notice. Rather, Plaintiff claimed that she proffered evidence to show that Defendant created the dangerous condition by placing the new spot box out without a plug in it, and also argued that the doctrine of res ipsa loquitur applied. The district court took Defendant’s motion under advisement.
The next day, the district court granted Defendant’s motion on the record finding that Plaintiff failed to present sufficient evidence for a reasonable jury to conclude that Defendant created the dangerous condition, and that while the evidence did indicate that the spot box freezer had been in Defendant’s control, the evidence did not demonstrate that the spot box had been in Defendant’s exclusive control for purposes of invoking the doctrine of res ipsa loquitur. Judgment was entered in favor of Defendant, and it is from this judgment dismissing Plaintiffs case upon Defendant’s motion for judgment as a matter of law that Plaintiff now appeals.
DISCUSSION
In a diversity case, when a Rule 50 motion for judgment as a matter of law is based on a challenge to the sufficiency of the evidence, we apply the standard of review used by the courts of the state whose substantive law governs the matter. Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir.1998). Here, Tennessee law governs the substance of the matter, and under Tennessee law, when considering a motion for a directed verdict in a jury case, the trial court “must consider the evidence most favorably for the
“To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.” McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 894 (Tenn.1996) (citing McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995)). In the context of a premises liability case, the Tennessee courts have stated that a business owner breaches the duty of care owed to its customers when it allows a dangerous condition or defect to exist on the premises if that condition or defect was created by the owner, operator or his agent; or, if the condition is created by someone else, when the business owner had actual or constructive notice that the dangerous condition or defect existed prior to the injury. See Hardesty v. Serv. Merck. Co. Inc., 953 S.W.2d 678, 682 (Tenn.Ct.App.1997); Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273 (Tenn.Ct.App.1987); Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn.Ct.App.1985); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.Ct.App.1980); Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn.Ct.App.1973).
In the matter at hand, Plaintiffs counsel argued in response to Defendant’s motion for judgment as a matter of law that Plaintiff had presented sufficient evidence for a reasonable jury to infer that Defendant had breached its duty to Plaintiff by creating the dangerous condition
by putting out their [sic] new spot box-— that is in the record — without a plug in it — that is in the record- — under which directly there was an issue of water. That is in the record. My client didn’t put it out there. We don’t know who put it out there. I think the jury can draw an inference from the testimony that it was new, that is [sic] was put out there without somebody checking the plug, which is exactly what I think they [the jury] would have drawn.
(J.A. at 115.) Counsel for Plaintiff went on to explain that
this is a res ipsa case. It is a box in the exclusive control of the defendant, which had it been put out there with the standard of care required, would not have been dangerous. In other words, it caused, but for the negligence of the defendant, this undangerous — not normally dangerous product became a dangerous product. And that is the res ipsa instruction. I would submit that it is a res ipsa case.
(J.A. at 116.) Simply stated, through the doctrine of res ipsa loquitur, Plaintiff sought to prove that Defendant breached the duty of care owed to her by creating the dangerous condition, the water on the floor in front of the open freezer plug, which thereby caused her injuries.
The doctrine of res ipsa loquitur is well steeped in Tennessee law. See Casenburg v. Lewis, 163 Tenn. 163, 40 S.W.2d 1038 (1931). The doctrine is a rule of evidence, not a rule of law. Quinley v. Cocke, 183 Tenn. 428, 192 S.W.2d 992, 996 (1946), overruled on other grounds, Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86 (Tenn.1999). That is, the doctrine of res ipsa loquitur is intended to assist a plaintiff who has no direct evidence of a defendant’s negligence, Provident Life & Accident Ins. Co. v. Prof'l Cleaning Serv., Inc., 217 Tenn. 199, 396
In Seavers v. Methodist Medical Center of Oak Ridge, the Tennessee Supreme Court stated that in order to invoke the doctrine of res ipsa loquitur, “the plaintiff must demonstrate that he or she was injured by an instrumentality that was within the defendant’s exclusive control and that the injury would not ordinarily have occurred in the absence of negligence.” 9 S.W.3d at 91 (citing Provident Life & Accident Ins. Co., 396 S.W.2d at 354-55; Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782, 784 (1953)). However, over thirty years before Seavers was decided, the Tennessee Supreme Court strongly questioned the “exclusive control” element of the application of res ipsa loquitur. That is, in Provident Life & Accident Ins., 396 S.W.2d at 355-56 (hereinafter Provident ), the case upon which Seavers relied, the Tennessee Supreme Court did indeed provide the definition of res ipsa loquitur as requiring that the instrumentality be in the exclusive control of the defendant; however, this definition was juxtaposed against a definition of res ipsa loquitur wherein exclusive control was not required in order for the doctrine to apply. See 396 S.W.2d at 355. Specifically, the Provident court compared the definitions of res ipsa loquitur as follows:
The rule of res ipsa loquitur has been defined in our cases in two general ways. In North Memphis Savings Bank v. Union Bridge & Construction Co., 138 Tenn. 161, 177, 196 S.W. 492 (1917), it was defined thusly:
Where the evidence shows an injury inflicted, and also the physical thing inflicting it, and that thing does not usually, or in the ordinary course, produce such a result where due care is exercised by those in charge of it, it may be inferred that those so in charge of the thing inflicting the injury failed to exercise such due care; that is, that they were guilty of negligence.
The second general definition is found in the case of Sullivan v. Crabtree, 36 Tenn.App. 469, 473, 258 S.W.2d 782, 784 (1953):
‘[W]here the thing [causing the harm] is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’
Provident, 396 S.W.2d at 355 (alterations in Provident).
Significantly, after providing these two definitions, the Provident court went on to note that “many academicians” such as Prosser found fault with the word “control” when defining res ipsa loquitur, and specifically looked to the Restatement (Second) on Torts in finding “corroboration of Prosser’s idea that control in the defendant is not a necessary element of the definition [of res ipsa loquitur].” Provident, 396 S.W.2d at 355. Borrowing from
It is not, however, necessary to the inference [of negligence] that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility. He may be responsible, and the inference may be drawn against him, where he shares control with another, ... where he is under a duty to the plaintiff which he cannot delegate to another, ... [and] where he is under a duty to control the conduct of a third person.... It may be enough that the defendant was formally in control .... Exclusive control is merely one fact which establishes the responsibility of the defendant; and if it can be established otherwise, exclusive control is not essential to a res ipsa loquitur case. The essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.
396 S.W.2d at 355-56 (quoting Restatement (Second), Torts § 328d (1965)). Having recognized the two definitions of res ipsa loquitur, and specifically the distinction between the two definitions — the defendant’s exclusive control over the instrumentality, the Provident court embraced the following “general rule:”
The general rule for all cases of circumstantial evidence-both ordinary cases and res ipsa loquitur cases-is that to make out his case, plaintiff does not have to eliminate all other possible causes or inferences than that of defendant’s negligence; but it is enough if the evidence for him makes such negligence more probable than any other cause.
396 S.W.2d at 356 (citations omitted).
Thus, although in Seavers the Tennessee Supreme Court decided to cite as controlling law one of the definitions of res ipsa loquitur provided in Provident — the definition incorporating the requirement of “exclusive control,” it is clear that the “exclusive control” requirement was criticized by the Provident court. See Seavers, 9 S.W.3d at 91; Provident, 396 S.W.2d at 355-56. Indeed, since Seavers, while “exclusive control” has been recognized as a factor in the application of the res ipsa loquitur doctrine, it has also been noted that
[t]he “exclusive control” element of the res ipsa loquitur doctrine, if read too literally, is overly restrictive. Res ipsa loquitur cannot be applied unless the circumstances surrounding the injury indicate that the causal negligence was probably the defendant’s, not that of another person. Evidence that the plaintiff was injured by an instrumentality that was within the defendant’s exclusive control at the time is sufficient for this purpose. However, proving a defendant’s exclusive control of an instrumentality when an injury occurs is not the only way to demonstrate the defendant’s responsibility for the negligence .... Tennessee’s courts do not view “exclusive control” as indispensable to the application of the res ipsa loquitur doctrine.
Burton v. Warren Farmers Coop., 2002 WL 31039345, at *7 (Tenn.Ct.App. Sept.12, 2002) (citations omitted).
The Burton court also recognized that “[t]he res ipsa loquitur doctrine is primarily useful in jury trials” inasmuch as it “provides a trial court with the framework for determining whether the plaintiffs evidence entitles him or her to get to the jury.” Id. (citations omitted). In this regard, the court opined:
The role of the trial court is to determine whether the plaintiffs evidence is sufficient to permit a reasonable person to infer from the circumstances that negligence attributable to the defendant caused the plaintiffs injury. If the an*861 swer is no, the trial court may direct a verdict for the defendant. If the answer is yes, then the plaintiff can weather a motion for directed verdict, and the case will be submitted to the jury for it to decide whether to choose the inference of the defendant’s causal negligence or some other permissible or reasonable inference.
Id. (citations and footnotes omitted). The court further opined in this regard that a trial court may decline to submit a claim based on res ipsa loquitur theory to the jury “(1) if there is simply not enough experience to justify an inference that the defendant’s negligence, more probably than not, caused the plaintiffs injury or (2) if, in the court’s experience, it was not more probable that the plaintiffs injury was caused by negligence.” Id. at n. 10 (citing 1 Dan B. Dobbs, The Law of Torts § 155, at 373 (2001)).
Against this backdrop of Tennessee law, we conclude that the district court erred in granting Defendant’s motion for judgment as matter of law at the close of Plaintiffs case-in-chief. When construing the evidence “most favorably” for Plaintiff, material evidence was presented to support a verdict for Plaintiff, and judgment as a matter of law therefore should not have been entered against her. See City of Columbia, 557 S.W.2d at 740.
As Plaintiff argued before the district court, based upon the testimony presented at trial, a reasonable jury could conclude that Defendant placed the new spot box freezer in the aisle without the plug properly secured thereby allowing water to leak from the freezer and thus creating the dangerous condition which lead to Plaintiffs fall and injury. For example, Plaintiff testified that the substance likely was water, that it was directly in front of the freezer plug, and that it felt cold to the touch. Testimony was also presented that manager Kanizar communicated to Plaintiff and Morris that the substance on the floor likely was water and that it had leaked from the spot box freezer. The written statement provided by Plaintiff and Morris at the scene also supported the claim that the water upon which Plaintiff slipped and fell had been leaking from the spot box freezer. Kanizar further communicated to Plaintiff and Morris that the spot box freezer was new, that he feared that it may not be functioning properly, and that he was therefore going to immediately remove the box from the floor. Finally, Defendant’s employee Baird, who wiped up the remaining water, stated that the puddle of water was about ten inches in diameter and “[r]ight there under the drain of the freezer.” (J.A. at 94.)
The district court failed to view this evidence and all of its permissible inferences “most favorably” for Plaintiff when it granted Defendant’s motion for judgment as a matter of law. For example, in concluding that Plaintiffs case failed inasmuch as Plaintiff failed to demonstrate that the spot freezer had been in Defendant’s exclusive control for purposes of invoking the doctrine of res ipsa loquitur, the district court looked to the universe of possibilities as to how the spot freezer may have been left unplugged and allowed to leak. The district court erred in this regard inasmuch as the Provident court clearly instructs that
[t]he general rule for all cases of circumstantial evidence-both ordinary cases and res ipsa loquitur cases-is that to make out his case, plaintiff does not have to eliminate all other possible causes or inferences than that of defendant’s negligence; but it is enough if the evidence for him makes such negligence more probable than any other cause.
396 S.W.2d at 356 (citations omitted) (emphasis added). And, as the Burton court
As noted above, we find that Plaintiffs evidence, particularly when viewed most favorably for Plaintiff, was sufficient allow a reasonable trier of fact to infer that Defendant’s negligence in placing the new spot box freezer without the plug properly inserted, thus allowing water to leak therefrom, created the condition which caused Plaintiff to fall and be injured. Simply stated, the district court took an “overly restrictive” approach when deciding that the spot box was in the “exclusive control” of Defendant, and failed to view the evidence in general most favorably for Plaintiff. See id. Of course, Defendant is free to renew its motion for judgment as a matter of law at the close of its proofs and, in light of evidence presented by Defendant, it may be proper for the district court to grant the motion at that time. See id. at n. 11. However, at this point of the trial proceedings, we hold that the district court erred in granting Defendant’s motion for judgment as a matter of law.
The negligence cases cited at length by the dissent are legally and factually distinguishable from the case before us, and thus do nothing to command a different outcome. Specifically, the Tennessee cases cited by the dissent support the proposition that exclusive control over an instrumentality is required in order to satisfy res ipsa loquitur. However, where the correctness of granting a motion for judgment as a matter of law is at issue, it is inappropriate to conclude that res ipsa loquitur does not apply when factual disputes remain as to how the accident occurred and whether the instrumentality was in the defendant’s control. Because such factual disputes remain in this case, the application of res ipsa loquitur is a question for the jury to decide.
CONCLUSION
For the above-stated reasons, we REVERSE the district court’s judgment granting Defendant’s motion for judgment as a matter of law, and REMAND the matter for trial.