COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
April 14, 1998
RUTH FRIAR, ) C/A NO. 03A01-9710-CV-00470 Jr.
Cecil Crowson,
) Appellate C ourt Clerk
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) ANDERSON COUNTY CIRCUIT COURT
)
)
)
)
THE KROGER COMPANY, )
) HONORABLE JAMES B. SCOTT, JR.
Defendant-Appellant.) JUDGE
For Appellant For Appellee
ARCHIE R. CARPENTER BRUCE D. FOX
CHRISTOPHER HEAGERTY Ridenour, Ridenour & Fox
Carpenter & O’Connor Clinton, Tennessee
Knoxville, Tennessee
JOHN A. DAY
DONALD CAPPARELLA
Branham & Day, P.C.
Nashville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
Ruth Friar sued The Kroger Company (“Kroger”) seeking
damages for personal injuries sustained when she fell in Kroger’s
Oak Ridge store. The trial court approved the jury’s verdict for
the plaintiff and entered judgment in her favor for $210,000.
Kroger appealed, presenting the following issues, as taken
verbatim from its brief:
1. That there is no evidence upon which to
sustain a verdict for the Plaintiff and that
it was error for the Court to allow argument
about and instruct the jury about notice by
method of operation.
2. That it was error for the court to allow
Plaintiff’s attorney to discuss in Voir Dire
other similar cases with large verdicts.
3. That it was error for the Court to tell
the Jury that it should reduce any damages
awarded by the percentage of fault attributed
to the Plaintiff and direct it to do so on
the verdict form.
I.
We embark upon our review of the facts in this case
ever mindful of the limited nature of our appellate jurisdiction
in jury cases:
It is the long established rule in this state
that in reviewing a judgment based upon a
jury verdict the appellate courts are not at
liberty to weigh the evidence to decide where
the preponderance lies, but are limited to
determining whether there is material
evidence to support the verdict; the
appellate court is required to take the
strongest legitimate view of all of the
evidence in favor of the verdict, to assume
the truth of all that tends to support it,
allowing all reasonable inferences to sustain
the verdict, and to discard all to the
contrary. Having thus examined the record,
2
if there be any material evidence to support
the verdict, it must be affirmed; if it were
otherwise, the parties would be deprived of
their constitutional right to trial by jury.
[Citations omitted].
Electric Power Board of Chattanooga v. St. Joseph Valley
Structural Steel Corporation, 691 S.W.2d 522, 526 (Tenn. 1985).
See also Truan v. Smith, 578 S.W.2d 73, 74 (Tenn. 1979). Our
role is clear: we must scour the record in search of evidence of
facts, and reasonable inferences from facts, that tend to support
the verdict for the plaintiff. In the process, we must ignore
facts that tend to support Kroger’s defensive positions. Our
inquiry into the facts ends if and when we find material evidence
to support the jury’s verdict, regardless of the quantum of
evidence to the contrary.
II.
On the morning of November 21, 1994 -- Monday of
Thanksgiving week -- the plaintiff, who was then approximately 72
years old, went to Kroger’s Oak Ridge store to shop for
Thanksgiving dinner. She found the store crowded with shoppers.
She had been shopping in the store for about 20 minutes when she
went to the store’s dairy section. This section is generally
located in the back left corner of the store.1 According to
Kroger’s drawn-to-scale diagram of the internal layout of the
store, the dairy section includes a multi-door upright cooler
containing milk, orange juice, and the like, located along the
1
All references in this opinion to parts of the store are from the
perspective of one on the outside facing the front of the store.
3
left back wall of the store; an open dairy case with biscuits,
butter, and similar products that runs along the left wall on a
diagonal from the back wall; and two free-standing, open-at-the-
top dairy coolers with cheese products, which coolers are
parallel with and eleven feet out from the open dairy case.
The plaintiff selected a few items from the open dairy
case along the left wall. As she stepped back from the dairy
case toward one of the free-standing dairy coolers, she stepped
in something that caused her to fall. As a result of the fall,
the plaintiff broke her hip and kneecap. The “something” in
which the plaintiff stepped was a piece of cardboard laid over
the remnants of a dropped glass jar of turkey gravy.
III.
Generally speaking, the owner or operator of premises
is subject to liability for allowing a dangerous or defective
condition to exist on its premises if the condition (1) was
created by it or its agent, or (2) was created by someone other
than the proprietor or its agent and the proprietor had actual or
constructive notice that the condition existed prior to the
accident. Hardesty v. Service Merchandise Co., 953 S.W.2d 678,
682 (Tenn.App. 1997), perm. app. denied; Martin v. Washmaster
Auto Center, U.S.A., 946 S.W.2d 314, 318 (Tenn.App. 1996), perm.
app. denied; Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273
(Tenn.App. 1987); Jones v. Zayre, Inc., 600 S.W.2d 730, 732
(Tenn.App. 1980).
4
In the instant case, there is absolutely no evidence
that a Kroger employee dropped the jar of turkey gravy or was
otherwise directly responsible for creating the condition that
caused the plaintiff to fall. Therefore, we will not further
discuss this aspect of a proprietor’s liability.
The liability of a business proprietor to a customer
for a dangerous condition created by someone other than the
proprietor or its agent is addressed in the case of Simmons v.
Sears, Roebuck & Co., 713 S.W.2d 640 (Tenn. 1986):
The duty owed by a business proprietor to a
customer “is to exercise reasonable care to
keep the premises in a reasonably safe and
suitable condition, including the duty of
removing or warning against a dangerous
condition traceable to persons for whom the
proprietor is not responsible... if the
circumstances of time and place are such that
by the exercise of reasonable care the
proprietor should have become aware of such
condition.”
Id. at 641 (citing Allison v. Blount Nat’l Bank, 390 S.W.2d 716,
718 (Tenn.App. 1965)).
Generally speaking, a proprietor’s liability for a
dangerous condition that is “traceable to persons for whom the
proprietor is not responsible,” see Simmons, 713 S.W.2d at 641,
is based upon the proprietor’s actual or constructive notice of
the dangerous condition. In order to predicate liability on
actual notice, there must be evidence from which the jury could
conclude that the defendant had actual notice prior to the
accident such that it had a reasonable opportunity to correct or
5
warn against the condition before the accident occurred. See
City of Knoxville v. Ferguson, 241 S.W.2d 612, 615 (Tenn.App.
1951).
The basic rule of constructive notice in premises
liability cases is this: “[i]f liability is to be predicated on
constructive knowledge by the Defendant, the proof must show the
dangerous or defective condition existed for such length of time
that the Defendant knew, or in the exercise of ordinary care
should have known, of its existence,” Hardesty, 953 S.W.2d at
682; Martin, 946 S.W.2d at 318; Ogle v. Winn-Dixie Greenville,
Inc., 919 S.W.2d 45, 46 (Tenn.App. 1995); Chambliss, 742 S.W.2d
at 273; Jones, 600 S.W.2d at 732; Self v. Wal-Mart Stores, Inc.,
885 F.2d 336, 338-39 (6th Cir. 1989); or, stated another way,
“there must be material evidence from which the trier of fact
could conclude the condition existed for sufficient time and
under such circumstances that one exercising reasonable care and
diligence would have discovered the danger.” Paradiso v. Kroger
Co., 499 S.W.2d 78, 79 (Tenn.App. 1973); Beske v. Opryland USA,
Inc., 923 S.W.2d 544, 546 (Tenn.App. 1996), perm. app. denied.
It has been held that “[w]here there is a complete
absence of proof as to when and how the dangerous condition came
about, it would be improper to permit the jury to speculate on
these vital elements.” Hardesty, 953 S.W.2d at 683; Ogle, 919
S.W.2d at 47; Chambliss, 742 S.W.2d at 273; Paradiso, 499 S.W.2d
at 80. Thus, to establish constructive notice on the part of the
defendant, the plaintiff must make some showing as to the length
6
of time that the dangerous condition was present prior to the
accident. Hardesty, 953 S.W.2d at 682, 683; Self, 885 F.2d at
338. However,
[t]he length of time the condition existed is
not the only factor to be considered in
determining whether or not the proprietor had
constructive notice of the danger. One must
take into consideration the nature of the
business, its size, the number of patrons,
the nature of the danger, [and] its location
along with the foreseeable consequences.
Paradiso, 499 S.W.2d at 79; Allison, 390 S.W.2d at 719.
The above rules regarding constructive notice generally
apply “in slip and fall cases involving a ‘transitory, temporary
or unusual’ defect, condition or accumulation of foreign
substances on floors.” Stinson v. Wal-Mart Stores, Inc., No.
1:95-CV-232, slip op. at 3 (E.D.Tenn. June 7, 1996), aff’d, 124
F.3d 199 (6th Cir. 1997)(no published opinion)(citing Self, 885
F.2d at 339). However, in cases in which the presence of the
particular hazardous condition is shown to be a common -- rather
than a transitory -- occurrence, the requirement of notice is
satisfied where the plaintiff proves that “the defendant’s method
of operation created a hazardous situation foreseeably harmful to
others.” Martin, 946 S.W.2d at 318. This “method of operation”
theory has been stated as follows:
[w]here a proprietor knows or has reason to
know that his customers are regularly
dropping hazardous debris on his floor or
steps, the Tennessee cases teach that the
proprietor must take reasonable precautions
7
to protect customers from injuring themselves
on it.
Self, 855 F.2d at 339.
Under the method of operation theory, the questions to
be asked are these:
(1) whether the condition created by the
chosen method of operation constitutes a
hazardous situation foreseeably harmful to
others;
(2) whether the proprietor used reasonable
and ordinary care toward its invitees under
these circumstances; and
(3) whether the condition created was the
direct and proximate cause of the plaintiff’s
injury.
Martin, 946 S.W.2d at 320 (quoting Hale v. Blue Boar Cafeteria
Co., an unreported decision of the Court of Appeals filed at
Jackson on February 21, 1980); see also Maxwell v. Red Food
Stores, Inc., C/A No. 88-110-II, 1988 WL 95273 at *4 (Tenn.App.,
M.S., filed September 16, 1988, Lewis, J.). Thus, proof that a
dangerous condition is a common occurrence created by a
proprietor’s method of operation raises a jury question as to
whether the proprietor took reasonable precautions to protect its
customers from injury. Martin, 946 S.W.2d at 318; Barrett v. Red
Food Stores, Inc., C/A No. 01A01-9108-CV-00302, 1992 WL 33891 at
*5 (Tenn.App., M.S., filed February 26, 1992, Lewis, J.). “Of
course, the customer is also required to use reasonable care for
his or her own safety.” Blue Boar, slip op. at 6.
8
In the “method of operation” cases, “the courts have
backed away from the strict application of the actual or
constructive notice requirement.” Wilson v. Target Stores, Inc.,
C/A No. 03A01-9209-CV-00322, 1993 WL 30617, *3 (Tenn.App., W.S.
at Knoxville, filed February 10, 1993, Crawford, J.). The three-
question analysis in Martin, Blue Boar, and Maxwell “completely
omits any requirement of notice under the theory that a defendant
who has created a dangerous condition needs no notice of what he
has done.” Martin, 946 S.W.2d at 320. However, “this Court has
begun to articulate the [m]ethod of [o]peration theory in terms
of constructive notice.” Id.; see Worsham v. Pilot Oil Corp.,
728 S.W.2d 19, 20 (Tenn.App. 1987)(“the requirements of
constructive notice may be met where a dangerous condition inside
a self-service business is not an isolated one but is reasonably
foreseeable to the owner because the condition is established by
a pattern of conduct, a recurring incident, or a general or
continuing condition....”) Recently, the courts “have focused
almost entirely on determining whether there is a pattern of
conduct, a recurring incident or a general or continuing
condition indicating the dangerous condition’s existence.”
Martin, 946 S.W.2d at 320 (citing Beske v. Opryland USA, Inc.,
923 S.W.2d 544, 546 (Tenn.App. 1996)).
IV.
Kroger strenuously argues that there is no evidence
that it had actual or constructive notice of the cardboard-
covered turkey gravy and glass such as would render it liable to
the plaintiff. It also contends that the evidence in this case
9
does not present a factual scenario of the type contemplated by
the method of operation theory of premises liability.
There is evidence in this record that, on the morning
in question, an unidentified shopper reported to a Kroger manager
at the Customer Service station in the front of the store that
there was a dangerous condition on the floor in the dairy section
of the store. The manager’s written incident report is in the
record:
I was in Customer Service at approximately
11:40 p.m. [sic]2 assisting customers. A
customer notified me that she almost fell in
the dairy aisle. She stated that there was a
spill or something in the floor that almost
caused her to fall, and that we better get it
up before someone else falls. I thanked her
for reporting the situation, and she left. I
immediately told Connie Harrell, who was
floor supervising, about the spill. At this
time she sent a courtesy clerk to clean up
the spill. When the courtesy clerk arrived
to clean up the spill Mrs. Friar had already
fallen.
David Riker, the courtesy clerk who was dispatched to the scene,
testified that when he arrived in the dairy section, the
plaintiff had already fallen.
While there is clearly evidence in this record of
actual notice of a dangerous condition on the floor in the dairy
section, that does not conclude our inquiry. We must next
determine whether the defendant had actual notice prior to the
accident and sufficiently in advance of the accident to take
2
The parties agree that the manager meant to identify the time as 11:40
a.m.
10
reasonable steps to correct the danger or warn of its existence.
In this case, there is no evidence, direct or circumstantial,
that the Kroger manager was advised of the spill before the
plaintiff fell. It is obvious from the record that the plaintiff
had not fallen when the “reporting” patron herself almost fell.
By the same token, it is likewise clear that she had not fallen
when the patron started toward the front of the store to report
the spill. However, we do not know from this record whether the
plaintiff fell before or after this patron reached the front of
the store and made her report to a store manager.
The plaintiff argues that instead of paging a courtesy
clerk to the front of the store and then dispatching him to the
site of the spill, the manager or his designee should have given
a warning over the intercom that there was a dangerous condition
on the floor in the dairy aisle; but this argument runs afoul of
the same sequence-of-events problem addressed in the preceding
paragraph. We simply have no proof that the defendant had
sufficient advance notice to prevent this accident. Since we do
not know when the plaintiff fell in relation to the point in time
that the Kroger manager received the report of the spill, we
cannot say that, had Kroger acted as expeditiously as humanly
possible, the accident could have been prevented. The person who
reported the spill had to walk a considerable distance from the
site of the spill to the Consumer Service area in order to report
the spill. It is no more logical to assume that the plaintiff
fell after the report to the Kroger manager than it is to assume
that she fell before the patron reached the Customer Service
area. See Martin v. Washmaster Auto Center, USA, 946 S.W.2d 314,
11
317 (Tenn.App. 1996) (“...the jury is not permitted to engage in
conjecture, speculation, or guesswork as to which of two equally
probable inferences is applicable.”) Therefore, liability in
this case cannot be predicated on actual notice.
The issue of constructive notice is a different matter.
We believe that there is material evidence in this case to
support a jury verdict in favor of the plaintiff on the theory of
constructive notice.
Exhibit number 1 in this record is a blown-up diagram
of the inside of the store. It reflects that it was prepared by
the Facility Engineering Department of Kroger. It is labeled a
“Fixture Plan”; is drawn to scale (1/8 inch equals 1 foot); and
shows the location of, and drawings of, the various food
counters, shelves, coolers, checkout counters and other fixtures
in the store. As far as the various fixtures are concerned, the
diagram was presented to the jury as an accurate layout of the
store at the time of the plaintiff’s fall. This exhibit
constitutes material evidence illuminating the testimony and/or
movements of the plaintiff; the “eyeball witness” -- an
individual by the name of Barbara Beatty; store personnel; and
the unidentified shopper who originally reported the spill to
Kroger’s manager.
Ms. Beatty testified that she was shopping in Kroger’s
Oak Ridge store on the morning in question. After shopping in
the grocery aisles to the right of her point of entrance, she
made her way to the meat department located in the back of the
12
store. Exhibit 1 reflects that when she was positioned at the
meat counter, she was then approximately 100 feet from, and to
the right of, the general area in which the plaintiff fell. Ms.
Beatty testified that when she reached the meat counter, she
ordered a steak. She waited while the butcher weighed the steak,
wrapped it, and then put a sticker on it. While she was in the
meat area -- a period of time that is not expressly quantified in
the record -- she did not hear the sound of glass breaking.
Exhibit 1 reflects a relatively clear path for hearing from the
meat department to the place in the dairy section where the
plaintiff later slipped and fell.
From the meat department, Ms. Beatty proceeded to her
left and down the back side of the store to the dairy section.
While in the dairy section, she saw the spill on the floor. It
was located near the inside of one of the free-standing dairy
coolers which, as previously indicated, were located out from the
wall dairy case. Exhibit 1 reflects that the free-standing
coolers are located eleven feet from the wall case. This eleven
feet of space is designed to be an aisle in the dairy section of
the store. It was while Ms. Beatty was in this aisle that she
first noticed the spill.
Ms. Beatty testified that she had been aware of the
spill for about five minutes when she saw an unidentified person
place a piece of cardboard over the spill. She was unable to say
whether that individual was a Kroger employee or a store patron.
In any event, Ms. Beatty’s testimony -- when construed most
favorably to the plaintiff -- is that it was an additional two to
13
five minutes later when she saw the plaintiff slip and fall on
the area of glass and turkey gravy covered by the cardboard. It
is significant to recognize that this combined period of seven to
ten minutes came after a period of time during which Ms. Beatty
was in the immediate area without hearing the breaking of glass.
The plaintiff testified that she was shopping in the
aforesaid eleven-foot aisle of the dairy section when she turned
around and slipped and fell on the mess described in the
preceding paragraph. She did not see this spill before she fell.
There was evidence that the Kroger store was crowded
that day with pre-Thanksgiving Day shoppers. There was also
evidence that the store had increased its normal staff to handle
the busy Thanksgiving-week traffic. Even at that, the grocery
manager testified that while he normally walked through the store
15 to 20 times a day, that morning he had only had time to walk
through the dairy section, which was specifically included within
his area of responsibility, three or four times. A jury could
conclude from all of this evidence that Kroger was under-staffed
at the time of the plaintiff’s fall during the busy Thanksgiving
shopping period.
There is a dispute in the record as to whether a
particular Kroger employee -- whose responsibility it was to
sweep the floor -- was present in the dairy area shortly before
the plaintiff’s fall. Suffice it to say that the jury had
evidence before it which, if believed, would tend to show that
the employee in question was not in the area at or around the
14
time of the plaintiff’s fall. This is significant because that
employee signed a statement that he “was sweeping the store from
10:00 - 11:00 a.m. and found no sign of any spill on the dairy
aisle,” and because another employee testified that the
individual who signed the statement told him that he had been in
the area of the fall five minutes before the plaintiff slipped.
A Kroger employee working in the dairy section
testified that he clocked out for lunch at 11:06 a.m., and
clocked back in at 11:35 a.m. His time record supports these
times. He testified that he did not see the spill when he left
the dairy section to go to lunch, and that when he returned to
the section after clocking in at 11:35 a.m., the plaintiff was
already on the floor being attended to.3 However, it should be
noted that the record clearly reflects that the site of the spill
was close to a mobile bin that was then being used by the store
as a receptacle for discarded cartons. The dairy section
employee testified that there had been nothing to prevent him
from returning the mobile bin to storage before he went to lunch,
but that he simply had elected not to do so. From certain
angles, the mobile bin tended to block the spill from view.
In the instant case, there were a number of “factor[s]
to be considered” on the subject of constructive notice. See
Paradiso, 499 S.W.2d at 79. We find material evidence to support
the conclusion that the “circumstances of time and place are such
that by the exercise of reasonable care the proprietor should
3
Kroger’s incident report reflects that Mrs. Friar fell at 10:40 a.m.;
however, it is clear from the testimony that this is an approximation.
15
have become aware of [the dangerous] condition.” Simmons, 713
S.W.2d at 641. This is not a case where the plaintiff is unable
to show what it was that he or she slipped on. Cf. Martin, 946
S.W.2d at 318; Maxwell, 1988 WL 95273 at *3. By the same token,
this is not a case where the plaintiff is unable to show how long
the dangerous condition existed. Cf. Hardesty, 953 S.W.2d at
683; Ogle, 919 S.W.2d at 47; Jones, 600 S.W.2d at 732. In this
case, we know what the plaintiff stepped in, and we know it had
been there for some period of time.
Disregarding all evidence against the verdict and
construing the evidence in the strongest light to sustain the
verdict, we are left with evidence that the spill was on the
floor for a little less than ten minutes, plus the period of time
that Ms. Beatty was in the general area and did not hear the
breaking of glass. A reasonable inference from her failure to
hear the jar break is that the jar of turkey gravy had been
dropped before Ms. Beatty entered the general area of the meat
and dairy sections. While we do not know how long Ms. Beatty was
in the area before she saw the spill, we do know that the jury
had before it the diagram, photographs of the interior of the
store, testimony that the store was crowded, and testimony as to
what Ms. Beatty was doing during the time that she did not hear
breakage. The jurors also had their own shopping experiences in
large supermarkets. They did not shed those experiences when
they entered the courthouse. They could evaluate all of the
relevant evidence, including the testimony of the plaintiff and
Ms. Beatty, in light of their own shopping experiences in such
stores.
16
In summary, the record, when examined so as “to take
the strongest legitimate view of all of the evidence in favor of
the verdict,” see Electric Power Board of Chattanooga, 691 S.W.2d
at 526, reflects direct, circumstantial, and inferential,
evidence tending to show: that a dangerous condition existed on
the floor at the time of the plaintiff’s fall; that the dangerous
condition had existed on the floor for upwards of ten minutes
plus an additional period of time, as reasonably measured by the
jury, representing the time that Ms. Beatty was in the general
area of the dairy section and did not hear glass breaking; that
the attention of shoppers, such as the plaintiff, would be
focused primarily --as intended by Kroger -- not on the floor,
but on the shelves and other display devices on and in which the
store’s products were presented for sale; that the dangerous
condition had been partially blocked from the view of shoppers by
a mobile bin that could and should have been off the floor; that
Kroger knew that more customers usually meant more spills and
breakage; that the Kroger manager responsible for the dairy
section had failed to patrol the store as often as he had
previously determined was necessary because Kroger failed to have
sufficient people on duty to service the increased number of
shoppers during Thanksgiving week -- a crowd that Kroger had
anticipated; and that Kroger had been less than candid as to
whether an employee with sweeping and mopping responsibilities
had been in the area of the dangerous condition around the time
of its creation.
When all of the above is considered, we believe that
there was “material evidence from which the trier of fact could
17
conclude the condition existed for sufficient time and under such
circumstances that one exercising reasonable care and diligence
would have discovered the danger.” Paradiso, 499 S.W.2d at 79.
In this case, the issue of reasonableness was for the jury. This
is certainly not a case where the facts and inferences are such
as to require a court to find that reasonable minds could only
conclude that Kroger had acted in a reasonable manner in light of
all of the circumstances.
The appellant’s issue with respect to a lack of
material evidence to support the verdict is found to be without
merit.
V.
Kroger contends that counsel for the plaintiff made
improper statements during voir dire that warrant reversal of the
trial court’s judgment. Kroger relies upon cases condemning the
practice of counsel referring to awards in other cases during
closing argument for the purpose of “influenc[ing] the jury in
fixing the amount of damages, or where the tendency of the same
may be to influence the jury in fixing the damages.” See Mayor,
Etc., of City of Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324, 326
(1892). See also Pullman Co. v. Pennock, 118 Tenn. (10 Cates)
565, 569 (1907); Tubb v. Boyd, 13 Tenn.App. 432 (1931).
In the instant case, counsel for the plaintiff, during
the course of his voir dire, inquired of a number of prospective
jurors as to whether they felt that a jury could be trusted to
18
properly assess compensatory damages. He asked the jurors if
they were aware of the widely-reported case wherein McDonald’s
was ordered by a jury to pay substantial damages to a plaintiff
who had been burned when overheated coffee fell in her lap. As a
part of this inquiry, counsel asked the prospective jurors, over
Kroger’s objection, if they were aware of certain facts in that
case -- facts which, according to counsel, were not widely
reported -- that tended to support the jury’s verdict.
We agree with Kroger that counsel should not have been
allowed to tell prospective jurors about what he understood were
the facts of the McDonald’s case. This was improper because it
injected facts into the voir dire that were not widely reported
and may or may not have been true; but counsel’s practice must be
viewed in the context of his obvious motivation: he wanted to
impress upon the jury his view that the widely-reported
McDonald’s case had been misreported by some in an attempt to
“poison” potential jury pools throughout the country. He used
the “facts” that he had learned about that case in his
questioning in an attempt to persuade the jurors that they should
not conclude from this misreporting that the jury system was “out
of control.” He repeatedly asked prospective jurors if they felt
that a jury could fairly assess damages in a case such as the
instant litigation. He brought up the following “facts” about
the McDonald’s case: that the plaintiff in that case had
suffered third degree burns and had incurred over $200,000 in
medical bills; that the company had reported that over 3,000
people per year were burned as a result of overheated coffee;
that McDonald’s had overheated its coffee to increase coffee
19
sales; that McDonald’s earns $2.1 million in profits from coffee
sales each day; and that the trial judge in that case had reduced
the jury’s award.
While we believe that counsel’s suggestion of these
alleged facts was improper, we find no abuse of discretion on the
part of the trial judge in permitting counsel to discuss aspects
of the case that were widely reported, in an attempt to determine
whether the impartiality of any of the prospective jurors had
been “infected” by the reporting of this celebrated case.
Potential jurors do not live in a vacuum. Their attitudes are
affected by that to which they are exposed. It is important to
ensure that a jury’s impartiality has not been adversely affected
by the media blitzes -- from the defendant’s side as well as from
the plaintiff’s side -- that are all too common in the world in
which we live. Having said all of this, we hasten to add that
this type of inquiry must be conducted under the close
supervision of the trial judge, acting within his sound
discretion.
The cases cited by Kroger are not applicable for
several reasons. First, those cases pertain to closing argument
and not voir dire; and, second, the remarks in the instant case
were clearly not designed to influence the jury to compare this
case to the McDonald’s case so that it would return a large award
for the plaintiff. It is clear beyond any doubt that the
questions were designed to ferret out individuals who would be
less inclined to award adequate damages because of their belief
that juries were “out of control” in awarding unwarranted
damages. In any event, there is no indication that counsel’s
20
remarks and questions resulted in an excessive award -- as
somewhat evidenced by the fact that Kroger does not contend on
this appeal that the award is excessive. In fact, the award is
reasonable given the plaintiff’s injuries, course of treatment,
and prognosis. Furthermore, it is worth noting that the facts of
the McDonald’s case are completely different from those of the
instant case. We find no basis for arguing that counsel referred
to the McDonald’s case in an attempt to induce the jury to
compare the two cases and thereby render an excessive award.
A party, through counsel, has the right to inquire into
a potential juror’s “biases.” See Painter v. Toyo Kogyo of
Japan, 682 S.W.2d 944, 947 (Tenn.App. 1984). In the Painter
case, this court addressed voir dire:
Our courts have explained that “[t]he purpose
of voir dire examination of prospective
jurors is to enable counsel to become
acquainted with their qualifications,
interests, or biases, as a matter of
fact,...and to enable counsel to exercise
peremptory challenges.” Wallis v. State, 546
S.W.2d 244, 249 (Tenn.Cr.App. 1976).
[citations omitted]. See generally 47
Am.Jur.2d Jury § 195 (1969), where it is
stated that:
“[f]ull knowledge of all relevant
and material matters that might
bear on possible disqualifications
of a juror is essential to a fair
and intelligent exercise of the
right of counsel to challenge
either for cause or peremptorily.
Accordingly, litigants are granted
the right to examine prospective
jurors on their voir dire in order
to enable them to select a jury
composed of men and women qualified
and competent to judge and
determine the facts in issue
without bias, prejudice, or
partiality.”
21
With the purpose stated above in mind, it is
reasonable that:
“[a] wide latitude is allowed
counsel in examining jurors on
their voir dire. The scope of
inquiry is best governed by a wise
and liberal discretion of the
court, but the adverse litigants
should be given the right to
inquire freely about the interest,
direct or indirect, of the proposed
juror, that may affect his final
decision. Thus, reasonable
latitude should be given parties in
the examination of jurors to gain
knowledge as to their mental
attitudes toward the issues to be
tried, for the purpose of aiding
them in striking jurors if they are
not successful in challenging them
for cause.”
47 Am.Jur.2d, supra, § 201.
The rule that trial judges possess wide
discretion in overseeing jury voir dire is
well supported in this jurisdiction.
Specifically, our Court of Criminal Appeals
has stated that “[t]he trial judge has wide
discretion in controlling examination of
prospective jurors and his action will not be
disturbed on appeal unless there was an abuse
of that discretion.” [Citations omitted].
Id. at 947-48.
We find no abuse of discretion in the trial court’s
decision to allow counsel to question the prospective jurors
regarding the widely-reported McDonald’s case. To the extent
that the court permitted counsel to tell the jurors about
counsel’s version of certain facts of that case that were not
widely reported, we cannot say that this constituted error that
more likely than not affected the judgment. See Rule 36(b),
T.R.A.P.
VI.
22
A.
Kroger contends that the trial court erred in charging
the jury regarding the method of operation theory of liability
and in permitting counsel for the plaintiff to argue this theory
to the jury.
The plaintiff argued at trial, and argues here, that
spills and breakage were not unusual occurrences at Kroger’s Oak
Ridge store. She calls our attention to the testimony of store
employees to the effect that spills and breakage were a common,
every-day occurrence. The plaintiff points out that Kroger’s
Housekeeping Record reflects that cleanups unrelated to general
cleaning activities occurred 18 times during Thanksgiving week.
She also points out that there were 51 such cleanups in the month
of November, 1994. She calls our attention to testimony
indicating that there were spills and breakage that were not
recorded on the Housekeeping Record. She contends that this
evidence brings this case within the method of operation theory
of liability.
In this case, the trial court gave a complete and
accurate charge regarding the liability of a proprietor for
maintaining a dangerous or defective condition on its premises.
The charge includes the method of operation theory of liability,
as set forth earlier in this opinion.
We agree with Kroger that the facts of this case do not
even arguably fall within the method of operation theory. We
know of no case extending this theory to a factual pattern
23
similar to the one presented in this case. We agree with the
following statement from the decision of the federal district
court in the case of Stinson v. Wal-Mart Stores, Inc., No. 1:95-
CV-232, slip op. at 5 (E.D. Tenn. June 7, 1996), aff’d, 124 F.3d
199 (6th Cir. 1997)(no published opinion):
[w]hile discarded debris generally may be a
common or everyday occurrence within the
defendant’s store, the common occurrence
theory has only been applied in cases where
particular debris has been discarded in a
particular area, so that the defendant owner
or operator knew or should have known of the
dangerous condition created thereby.
The dangerous condition in this case was not “created” by
Kroger’s method of operation as that concept is addressed in the
various cases relied upon by the plaintiff.
The facts of this case simply do not fit within the
ambit of the method of operation theory of liability; however,
this does not mean that either the plaintiff’s argument or the
trial court’s charge with respect to this theory amounts to
reversible error in this case.
The jury returned a general verdict. T.C.A. § 20-9-502
provides as follows:
If any counts in a declaration are good, a
verdict for entire damages shall be applied
to such good counts.
In Tutton v. Patterson, 714 S.W.2d 268 (Tenn. 1986), the Supreme
Court reviewed a jury’s general verdict for the plaintiff in a
24
situation where there was no evidence to support one theory of
recovery, but evidence to support other theories:
Tennessee courts have held on the basis of
the above quoted statute that a trial court’s
erroneous instruction on one count of a
multicount suit is harmless error if its
instructions as to the other counts were
proper. [citations omitted]. “[A] general
verdict approved by the trial judge is not
vitiated by the absence of proof on one or
more counts of the declaration if there is
evidence to sustain the averments of a single
count.” [citations omitted].
In Bloodworth v. Stuart, supra, plaintiff
relied upon two separate theories; the
attractive nuisance doctrine, and the
playground doctrine. The trial judge in his
charge submitted both theories to the jury.
The jury returned a general verdict for
plaintiff. On appeal, this Court found that
the trial judge erred in not directing a
verdict for the defendant on the attractive
nuisance count. There was material evidence
in the record from which the jury could
conclude that the playground doctrine
applied; thus applying T.C.A. § 20-9-502,
this Court held that “[h]aving found the jury
was justified in finding liability under the
count of the declaration based on the
playground doctrine, the verdict will be
applied to that count.” 221 Tenn. at 577,
428 S.W.2d 786. Justice Dyer, in his
dissent, argued that an erroneous instruction
in regard to a multiple count case can be
reversible error even though proper
instructions were given as to other counts
being litigated. He concluded that the
defendant was prejudiced by submission to the
jury the attractive nuisance count.
In this case Defendant contends that the
trial judge erred in submitting the vicarious
liability count to the jury. We are of the
opinion that the trial court’s erroneous
instruction in regard to this count is
harmless error, having found that the jury
was justified in finding the Defendant liable
under either of the other two counts.
Bloodworth v. Stuart, supra. We cannot say
that after “considering the whole record,”
the erroneous charge “more probably than not
affected the judgment.” Rule 36(b), T.R.A.P.
25
Tutton, 714 S.W.2d at 271. As we have previously discussed in
some detail, there was material evidence in the instant case to
support a finding of liability under a constructive notice theory
of recovery; hence, there was a theory of liability to which the
jury’s general verdict could be applied.
We find, as did the Tutton court, that, considering the
record as a whole, the trial court’s error in charging the method
of operation theory was not of such a magnitude to have “more
probably than not affected the judgment.” Rule 36(b), T.R.A.P.
See also Bloodworth v. Stuart, 528 S.W.2d 786 (Tenn. 1968).
This issue is found adverse to Kroger.
B.
Kroger argues that the trial court erred in explaining
to the jury that the court would reduce the amount of damages
found by the jury by the percentage of fault assessed to the
plaintiff.4 Kroger points to the following language in McIntyre
v. Balentine, 833 S.W.2d 52 (Tenn. 1992):
In all trials where the issue of comparative
fault is before a jury, the trial court shall
instruct the jury on the effect of the jury’s
finding as to the percentage of negligence as
between the plaintiff or plaintiffs and the
defendant or defendants. [Citation omitted].
The attorneys for each party shall be allowed
to argue how this instruction affects a
plaintiff’s ability to recover.
4
The jury found damages of $300,000. It assessed Kroger’s fault at 70%.
26
Id. at 57. Kroger contends that this language “only requires the
Court to explain that the plaintiff cannot recover unless he or
she is less than fifty percent at fault.” According to Kroger,
any further explanation creates the risk that the jury will, in
effect, pre-determine the plaintiff’s ultimate recovery by
inflating its award of damages, thereby offsetting the effect of
any reduction for the plaintiff’s own percentage of fault.
We find that the trial court’s instruction was in
strict accordance with the principles of McIntyre. We reach this
conclusion based upon the “suggested jury instructions” set forth
by the Supreme Court in the appendix to the McIntyre opinion.
Those instructions provide, in pertinent part, as follows:
... If, on the other hand, you determine from
the evidence that the percentage of
negligence attributable to plaintiff was less
than the percentage of negligence
attributable to defendant, then plaintiff
will be entitled to recover that portion of
his/her damages not caused by plaintiff’s own
negligence.
The court will provide you with a special
verdict form that will assist you in your
duties. This is the form on which you will
record, if appropriate, the percentage of
negligence assigned to each party and
plaintiff’s total damages. The court will
then take your findings and either (1) enter
judgment for defendant if you have found that
defendant was not negligent or that
plaintiff’s own negligence accounted for 50
percent or more of the total negligence
proximately causing his/her injuries or (2)
enter judgment against defendant in
accordance with defendant’s percentage of
negligence.
Id. at 59 (emphasis added).
27
In the instant case, the subject instruction accurately
states the law and is consistent with the instructions suggested
in McIntyre. We therefore find this issue to be without merit.
To the extent that Kroger asks us to change the holding of
McIntyre, we are obviously without authority to do so. See
Bloodworth, 428 S.W.2d at 789.
VII.
The judgment of the trial court is affirmed. Costs on
appeal are taxed to the appellant and its surety. This case is
remanded to the trial court for enforcement of the judgment and
collection of costs assessed below, all pursuant to applicable
law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
William H. Inman, Sr.J.
28