Wal-Mart Stores, Inc. v. Bernard

Terry Crabtree, Judge. This is a civil case for negligence brought by the appellee, Ms. Wendy Bernard, and her daughter, Daphne Fraser, against Wal-Mart Stores, Inc. The case was tried to a jury, and the jury returned a verdict against Wal-Mart for $12,500. Wal-Mart brought this appeal alleging that the trial court erred in denying Wal-Mart’s motion for directed verdict at the close of the plaintiff’s case and the conclusion of all the evidence. We agree and, therefore, reverse and remand. When deciding whether the trial court erred in denying a motion for directed verdict, we determine whether there is substantial evidence to support the jury’s verdict. Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999). Substantial evidence is that degree of evidence sufficient to compel a person to a conclusion without resort to speculation or conjecture. Id. We view the evidence and all reasonable inferences in the fight most favorable to the party who was awarded the judgment. Id. The plaintiff and her daughter were shopping in the Wal-Mart Super Center in Searcy, Arkansas, on December 4, 1997, when the daughter needed to use the public restroom. The plaintiff alleged in her complaint that her daughter went into the restroom and slipped on a pool of water, chipping her two top front teeth on the sink. The plaintiff alleged that the water had been on the floor for a sufficient length of time that Wal-Mart knew or should have known that the water was there and failed to use ordinary care in removing it. To prevail on a slip-and-fall negligence case, the plaintiff must prove that there was a substance on the floor and it was a result of the defendant’s negligence, or that the substance had been on the floor so long that the defendant knew or should have known of its presence and failed to take reasonable action to remove it. Conagra, Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999). Negligence is never presumed. Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996). The fact that a substance is on the floor is not, in and of itself, sufficient to sustain the plaintiff’s burden. Fred’s Stores v. Brooks, 66 Ark. App. 38, 987 S.W.2d 287 (1999). Nor is the fact that an employee was in the vicinity of the accident before it occurred sufficient. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). Ms. Bernard, plaintiff and mother of the child who was injured, testified that she saw a puddle of water that her daughter slipped on in front of the latrines. There were foot tracks from the puddles in front of the sink to other puddles on the floor. It was obvious to her that the water had been tracked around the bathroom. The puddles were not connected. Ms. Bernard did not know how the water got on the floor and could not say how long it had been there. Based on this testimony, the defendant moved for a directed verdict at the close of the plaintiff’s case, and the motion was denied. The defendant called one witness, Mr. Cunningham, the manager of the store. Mr. Cunningham testified that neither he nor anyone at Wal-Mart knew about the water on the floor of the bathroom before the child fell. He testified that he did not know how the water got there or how long it had been there. He did testify that he believed that the floor had been mopped sometime that morning but was unable to say when. There was no evidence introduced that would show the time the floor in the bathroom was mopped or if there was water in puddles on the floor after it was mopped. To conclude that the puddles were there for a sufficient amount of time for Wal-Mart to be placed on notice that it was there would be a resort to speculation, so too would be the assumption that Wal-Mart had placed the water on the floor and failed to clean it up. Reversed and remanded. Pittman, Jennings, and Bird, JJ., agree. Roaf and Neal, JJ., dissent.