dissenting.
Because I believe there is sufficient evidence to support the jury’s verdict, I dissent. Harvey testified that the substance was yellow, dirty, and wet in the middle with dried and crusted edges. His companion described it as soapy-looking, foamy, and containing trash and debris. In slip and fall cases, the Arkansas Supreme Court has acknowledged the importance of a foreign object’s condition in determining the length of time it has remained in a particular place where it is likely to cause injury. Jackson v. Hemphill, 245 Ark. 699, 434 S.W.2d 818, 819-20 (1968) (describing cases where banana peelings were trampled, black, dry, gritty, and dirty). I believe that Harvey had presented enough evidence for a jury to reasonably determine that this dried and dirty substance had been on Wal-Mart’s floor for a substantial amount of time.
In granting Wal-Mart’s motion for judgment as a matter of law, the district court commented that Harvey’s and his companion’s descriptions of the substance changed from the time of the accident to the time of trial. The court also noted that substances dry at different rates and that evidence that this substance was dried and crusted meant nothing unless its identity was known.
The majority opinion correctly recognizes that a court may not weigh the evidence or assess the credibility of witnesses in considering a motion for judgment as matter of law. Ante at 970-71. “Occasionally verdicts may be returned with which judges strongly disagree.... When questions of fact are involved, common sense is usually more important than technical knowledge, and twelve heads are better than one.” Dace v. ACF Industries, Inc., 722 F.2d 374, 376-77 (8th Cir.1983) (footnotes omitted).
In slip and fall cases under Arkansas law, the burden rests on the plaintiff to prove that the substance was on the floor for a substantial amount of time. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861, 863 (1992). In this case, however, Harvey was denied the opportunity to identify the substance because Wal-Mart’s employees cleaned the area immediately after his fall and disposed of the substance, effectively precluding the plaintiff any opportunity to examine and assess the substance. I am concerned that requiring a plaintiff to positively identify the offending substance encourages premise owners, like Wal-Mart, to dispose of evidence as quickly as possible in order to prevent a potential plaintiff from having the opportunity to prove his case. In any event, there is sufficient evidence in this ease, through the application of common sense, for the jury to infer that this dried and dirty substance had been on Wal-Mart’s floor for a substantial amount of time.
In the alternative to ordering judgment as a matter of law, the district court granted Wal-Mart’s motion for a new trial. Consequently, I would remand this case for a new trial.