Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED OCTOBER 23, 2001
ANNIE CLARK and WALTER CLARK,
Plaintiffs-Appellants,
v No. 117511
KMART CORPORATION,
Defendant-Appellee.
________________________________
PER CURIAM
Plaintiff Annie Clark1 was injured in a slip and fall
accident at defendant’s store. She brought this negligence
action, and a jury trial resulted in a verdict in her favor.
However, the Court of Appeals reversed, concluding that there
was insufficient evidence that the hazardous condition which
caused the fall had been in place long enough to put the
defendant on constructive notice of the condition. We
1
Plaintiff Walter Clark’s claims are derivative, and
Annie Clark will be referred to as the “plaintiff.”
conclude that the plaintiff presented sufficient evidence to
create a jury-submissible question on the issue. We reverse
and remand the case to the Court of Appeals for consideration
of the other issues raised by the defendant in its appeal to
that Court.
I
The trial testimony established that plaintiff and her
husband visited defendant’s Super Kmart store in Dearborn at
approximately 3:30 a.m. on October 8, 1994. As they walked
through a closed check-out lane into the store, Ms. Clark was
injured when she slipped on several loose grapes that were
scattered on the floor. Walter Clark testified that he saw
footprints made by “some big, thick, rubber-soled shoes”2
leading away from the grapes, which were smashed on the floor.
The case was submitted to the jury on a negligence
theory, and it returned a verdict for the plaintiff, awarding
a total of $50,000 in damages to her and her husband.
After denial of its motion for judgment notwithstanding
the verdict or a new trial, the defendant appealed, and the
Court of Appeals reversed in a two-to-one opinion.3 The
majority’s analysis focused on Ritter v Meijer, Inc, 128 Mich
App 783; 341 NW2d 220 (1983), a case on which plaintiff had
2
This testimony was offered to establish that the
footprints had been made by someone other than plaintiff
because the prints were from the soles of shoes unlike those
plaintiff was wearing at the time she fell.
3
242 Mich App 137; 617 NW2d 729 (2000).
2
heavily relied. In Ritter, the plaintiff said she was injured
when she slipped and fell on a grape in the defendant’s store,
and that the grape felt as though someone had previously
stepped on it. The Ritter panel concluded that the
plaintiff’s testimony was sufficient to avoid a directed
verdict. The Court reasoned that because the grape would
occupy only a small portion of the floor, the jury could infer
that some time would have to pass before someone would step on
it. This made, in the judgment of the Ritter panel, the
“stomped-upon” grape sufficient to prove constructive notice
of a slippery condition. 128 Mich App 787.
The Court of Appeals panel in this case declined to
follow Ritter. It found too logically attenuated Ritter’s
conclusion that the defendant had constructive knowledge of
the grape on the basis of it previously having been stepped
upon, and concluded that this was insufficient to remove the
plaintiff’s case from the realm of conjecture. Thus, the
majority concluded that the trial court should have granted a
directed verdict because the evidence was insufficient to
support an inference of constructive notice of the presence of
the grapes.4
II
In reviewing a trial court’s decision on a motion for a
directed verdict, an appellate court is to examine the
4
Judge Kelly dissented, believing the analysis of Ritter
to be sound and applicable to the case.
3
evidence and all reasonable inferences that may be drawn from
it in the light most favorable to the nonmoving party. Hord
v Environmental Research Inst of Mich (After Remand), 463 Mich
399, 410; 617 NW2d 543 (2000). Only if the evidence so viewed
fails to establish a claim as a matter of law should the
motion be granted. Orzel v Scott Drug Co, 449 Mich 550, 558;
537 NW2d 208 (1995).
III
The duties of a storekeeper to customers regarding
dangerous conditions are well established and were set forth
in Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158
NW2d 485 (1968):
“It is the duty of a storekeeper to provide
reasonably safe aisles for customers and he is
liable for injury resulting from an unsafe
condition either caused by the active negligence of
himself and his employees or, if otherwise caused,
where known to the storekeeper or is of such a
character or has existed a sufficient length of
time that he should have had knowledge of it.”
[Quoting Carpenter v Herpolsheimer’s Co, 278 Mich
697; 271 NW 575 (1937) (syllabus) (emphasis added
by the Serinto Court).]
See also Hulett v Great Atlantic & Pacific Tea Co, 299 Mich
59, 68; 299 NW 807 (1941). This case squarely presents the
question whether the evidence would permit a jury to find that
the dangerous condition was present long enough that the
defendant should have known of it.
Both the majority and dissent in the Court of Appeals
have focused on Ritter, supra, with its ostensible similarity
4
in that both slip and fall incidents involved grapes that may
have been previously stepped upon. However, this case, unlike
Ritter, presents evidence independent of the condition of the
grapes, indicating that the grapes had been on the floor for
a substantial period of time, making it unnecessary to
determine whether Ritter was correctly decided.
In this case, there was no direct evidence of when or how
the grapes came to be on the floor of the check-out lane.
There was testimony from Kmart witnesses about the
responsibilities of employees for observing and either
reporting or remedying dangerous conditions. However, there
was no evidence that any employee was actually aware of the
grapes in the check-out lane.5
However, a Kmart employee testified that the check-out
lane would have been closed6 no later than 2:30 a.m., about
an hour before plaintiff arrived. Given that evidence, a jury
could reasonably infer that the loose grapes were, more likely
than not, dropped when a customer brought grapes to the check
out lane to buy them while it was still open.7 From this, the
5
Janitorial services at the store were provided by an
independent contractor. No witnesses from that firm were
called to testify about its employees’ activities on the
morning in question.
6
That is, closed in the sense that the register was not
open for servicing customers. The check-out lane was not
blocked in such a way as to prevent people from walking
through it.
7
The store had a grocery department with a produce area,
and presumably sold grapes.
5
jury could infer that an employee of defendant should have
noticed the grapes at some point before or during the closing
of the lane and either cleaned them up, or asked another
employee to do so. Further, the fact that the check-out lane
had been closed for about an hour before plaintiff fell
establishes a sufficient length of time that the jury could
infer that defendant should have discovered and rectified the
condition.8
The availability of the inference that the grapes had
been on the floor for at least an hour distinguishes this case
from those in which defendants have been held entitled to
directed verdicts because of the lack of evidence about when
the dangerous condition arose. See, e.g., Goldsmith v Cody,
351 Mich 380, 387-389; 88 NW2d 268 (1958); Filipowicz v S S
Kresge Co, 281 Mich 90, 94-95; 274 NW 721 (1937); Whitmore v
Sears, Roebuck & Co, 89 Mich App 3, 9-10; 279 NW2d 318 (1979);
Suci v Mirsky, 61 Mich App 398, 402-403; 232 NW2d 415 (1975);
Galloway v Sears, Roebuck & Co, 27 Mich App 348, 349-351; 183
NW2d 354 (1970).
We conclude that the evidence was sufficient for the jury
to find that the dangerous condition that led to the injury
existed for a sufficient period of time for defendant to have
8
There was no testimony concerning the last time the
floor of the check-out lane had been cleaned. However,
testimony described the floor as generally “dirty,” which
could reasonably be viewed as negating a suggestion that it
had been cleaned after the lane was closed and that the grapes
were dropped thereafter.
6
known of its existence. Therefore, we reverse the judgment of
the Court of Appeals. In light of its analysis, the Court of
Appeals did not fully consider the issues raised by the
defendant with regard to the trial court’s jury instructions.
We remand this case to the Court of Appeals for consideration
of those issues in a manner consistent with this opinion.
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred.
7