Opinion
No. 3-871 / 03-0633.
Filed December 24, 2003.
Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin, Judge.
A grocery store appeals following a jury verdict in favor of a patron in a slip-and-fall action. AFFIRMED.
Brian Nolan and Scott Lautenbaugh of Nolan, Olson, Hansen, Fieber Lautenbaugh, L.L.P., Omaha, Nebraska, for appellant.
Michael Reilly of Reilly, Petersen, Hannan Dreismeier, P.L.C., Council Bluffs, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
No Frills Supermarkets, Inc. (No Frills) appeals from a judgment, following jury trial, awarding Judy Krenk damages for injuries she suffered from falling in a No Frills store. We affirm.
Background Facts and Proceedings.
At approximately 6:30 p.m. on October 31, 2001, Judy Krenk entered the No Frills store on Valley View Drive in Council Bluffs, and proceeded directly to the card isle. Krenk took about ten minutes to make her selection, then proceeded to the check-out area, located just a few feet away. She paid for her purchases, placed them in a bag, and left the check-out stand at around 6:45 p.m. As Krenk took one step beyond the edge of the counter, she slipped and fell. The four cashiers on duty — Sarah McKeeman, Lindsay Sindt, Maria Reafleng, and Chris Machmuller — and assistant manger Larry Christiansen, all came to Krenk's aid. As store employees were helping Krenk to her feet, Christiansen noticed a smashed red grape in the area where Krenk had fallen, about eight to ten inches from the end of the check-out stand Neither the store employees, nor Krenk, had seen the grape prior to Krenk's fall.
Krenk sustained physical injuries. On February 19, 2002, she filed suit against No Frills, alleging her damages had been caused by No Frills's negligence. Krenk alleged her fall had been caused by the presence of a hazardous condition, the grape on the floor, and that No Frills had been negligent in failing to remove the grape or warn her of its presence. At the close of Krenk's case in chief and again at the close of all the evidence, No Frills moved for a directed verdict on the ground that Krenk had not established that the allegedly hazardous condition had existed for such a length of time as to put No Frills on notice of its existence. The district court denied the motions, and the jury returned a verdict in Krenk's favor, finding she had sustained $32,535.60 of past damages and $50,000 of future damages, and assigning fifty percent of the causal fault to each party.
No Frills then moved for a judgment notwithstanding the verdict or alternatively for a new trial, again arguing Krenk had not established No Frills was on notice of the condition. The district court denied the motions. It entered judgment in favor of Krenk for $16,267.80 of past damages and $25,000 of future damages. No Frills appeals, challenging the sufficiency of the evidence to support the jury's verdict. It specifically raises the same issue presented in its prior motions: whether Krenk established No Frills was on notice of the condition that caused Krenk's injuries.
Scope and Standards of Review.
In ruling on a motion for directed verdict, the district court must decide whether the nonmoving party has presented substantial evidence on each element of the claim. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001). "Evidence is substantial if a jury could reasonably infer a fact from the evidence." Id. We review the denial of a motion for directed verdict for the correction of errors at law. Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 466 (Iowa 2000). We must determine whether there was "sufficient evidence to generate a jury question." Id. We view the evidence in the light most favorable to the nonmoving party, regardless of whether the evidence was contradicted. Id. We afford the nonmoving party every legitimate inference that can reasonably be drawn from the evidence. Id. If reasonable minds could differ on resolution of the issue, then it should be submitted to the jury. Id.
We review a district court's ruling on a motion for judgment notwithstanding the verdict for the correction of errors at law. State v. Keding, 553 N.W.2d 305, 306 (Iowa 1996). A judgment notwithstanding the verdict is based on the grounds stated in the motion for directed verdict, and we limit our review to those grounds. Id. We apply the same standards as the district court by considering the evidence in the light most favorable to the party against whom the motion is directed and conduct our review in favor of upholding the jury verdict. Id. We decide whether there was sufficient evidence to generate a jury question. Id.
How we review the denial of a motion for new trial depends on the grounds asserted in the motion and ruled on by the trial court. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823 (Iowa 2000). When the motion and ruling are based on discretionary grounds our review is for an abuse of discretion. Id. When the motion and ruling are based on a claim the trial court erred on issues of law our review is for correction of errors of law. Id. Because the motions for directed verdict and motion for judgment notwithstanding the verdict raise issues of law, our review of the trial court's ruling on the alternative motion for a new trial is also for correction of errors of law.
Notice.
On appeal the only issue presented is whether Krenk introduced evidence from which a jury could reasonably find that No Frills knew or should have known of the hazardous condition leading to Krenk's fall, the grape's presence on the floor at the end of the check-out stand Because there was no evidence the condition was created by any action of an employee of No Frills, knowledge of the condition cannot be imputed to No Frills. See Richardson v. Commodore, Inc., 599 N.W.2d 693, 697 (Iowa 1999) (citing Ling v. Hosts, Inc., 164 N.W.2d 123, 126 (Iowa 1969)). Nor was Krenk able to show that any No Frills employee had actual notice of the condition, as the evidence established without dispute that neither Krenk, nor the store's employees, were aware the grape was on the floor prior to Krenk's fall.
Accordingly, as Krenk acknowledges, to sustain her claim Krenk was required to show that No Frills was on constructive notice of the condition. Ling, 164 N.W.2d at 127. To establish constructive notice Krenk was required to prove that the condition existed for such a length of time that No Frills, in the exercise of reasonable care, should have known of its presence. Id. The issue thus becomes whether Krenk introduced substantial evidence that the grape had been on the floor for such a period of time that No Frills, in the exercise of reasonable care, should have known it was there.
The parties agree that the only explanation for the grape on the floor is that a customer, other than Krenk, dropped the grape while bagging groceries and/or exiting the store. No Frills argues that Krenk failed to present evidence, as opposed to mere speculation, that the grape was on the floor for such a length of time that No Frills, in the exercise of reasonable care, should have known of it. Krenk admitted she had no idea how long the grape had been on the floor, and that it could have been dropped by another customer just moments before she fell. She also admitted that, as a frequent shopper, she typically found the store to be clean and well-maintained. In addition, the cashiers testified they had been making periodic inspections of the check-out stand area prior to Krenk's fall, and that no grape was observed during those times. While the cashiers could not put specific times on their inspections, Christiansen testified that as of his last inspection, at 6:20 p.m., the floor was clean.
We are, however, required to view the evidence in the light most favorable to the nonmoving party, affording the nonmoving party every legitimate inference that can reasonably be drawn from the evidence. Top of Iowa Co-op., 608 N.W.2d at 466. The evidence showed that No Frills's customers bagged their own groceries, in doing so they from time to time dropped and spilled things, store employees were aware of these facts, and the store employees were trained to look for and attend to any such hazards. There was evidence that the cashiers were required to inspect not only the areas around their individual check-out stands, but also the check-out area generally, "whenever there was a free moment," when they "had a chance to do so," or when they "had a break in our line." There was also evidence that it would have been possible for Christiansen or any of the four cashiers to discover the grape if they had looked after it was dropped, as the floor is light-colored tile and one can look down the line and seen the ends of all the check-out stands.
Assistant Manager Christiansen was primarily responsible for maintaining the area where Krenk was injured, but had last checked the area twenty-five minutes before she slipped on the grape and fell. In addition, there was evidence from which the jury could conclude that between the time the last preceding customer had gone through the check-out line and the time Krenk went through the line and fell store employees had ample opportunity to inspect the area where Krenk fell, but did not do so. Krenk testified that during the time she was in the store the cashiers did not appear to be busy, as she did not notice anyone around other than the cashiers. She testified that as she approached the stand at which she checked out she was able to walk right up to it, and that there were not customers going through the other check-out stands. She testified further that the cashiers appeared to be standing around, laughing and having a good time. One of the cashiers confirmed that the employees were laughing and joking around because it was Halloween, and that at the time of Krenk's fall he was not inspecting his area but standing at the front of his register waiting for his next customer.
Although the evidence in support of Krenk's claim is less than overwhelming, we must view the record in the light most favorable to upholding the verdict. See Kamerick v. Wal-Mart Stores, Inc., 503 N.W.2d 24, 25 (Iowa Ct. App. 1993). Under that standard, the evidence is sufficient to allow reasonable persons to conclude the grape had been on the floor for such a length of time that No Frills, in the exercise of reasonable care, should have known of its presence. We therefore affirm the district court's decision to deny No Frills's motion for a directed verdict and motion for judgment notwithstanding the verdict or a new trial.