Opinion
No. 541, 2003.
Submitted: July 14, 2004.
Decided: October 7, 2004. Reargument Denied: October 20, 2004.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 00C-03-290.
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
This 7th day of October 2004, upon consideration of the briefs of the parties and the contentions set forth therein, it appears to the Court that:
(1) The plaintiffs-appellants, Elizabeth and James Walker, filed an appeal with this Court challenging a Superior Court jury verdict in favor of the defendant-appellee, Shoprite. In this slip and fall case, the jury found that both Mrs. Walker and Shoprite employees were negligent, but apportioned seventy percent of the (contributory) negligence to Mrs. Walker and thirty percent to Shoprite. In this appeal, as in their motion for a new trial, the Walkers contend: "The jury verdict that Mrs. Walker was 70% at fault for causing her own slip and fall at the Shoprite store, that is twice as negligent as Shoprite, was against the great weight of the evidence." The trial judge denied the Walkers' motion for a new trial on the ground that the jury verdict was not against the weight of the evidence and the defendant, Shoprite, sustained its burden in proving contributory negligence.
(2) The record reflects that on April 4, 1998, while the Walkers were shopping in a Shoprite store, Mrs. Walker slipped on grape jelly that had spilled on the floor. Mrs. Walker fell, sustaining injuries, particularly to her shoulder. The fall occurred as the Walkers were walking up and down aisles. Mr. Walker was pushing the cart and Mrs. Walker was putting groceries into it. Mrs. Walker testified that there was nothing between them and the spilled jelly as they rounded the end of an aisle and started up another.
(3) Mrs. Walker testified that before she fell, she saw two young male store employees in the aisle ahead, but she did not see the jelly on the floor, or a warning sign. After her fall, the store employees immediately asked Mrs. Walker if she was all right and offered assistance. The two employees told Mrs. Walker they had just been called to clean up the spill of a five-pound jar of jelly. They had picked up the large pieces of glass but were waiting for someone to bring a mop so they could finish cleaning up. When she asked where the warning signs were, the employees responded that they were about to get one. Mr. Walker's testimony was essentially identical to his wife's, except that his recollection was that the spill was located slightly further down the aisle and that he did not see the employees before his wife fell.
(4) The store manager testified that he had no specific recollection of the incident, but he did write a report shortly after the fall, which stated, in part: "Customer slipped on a broken jar of jelly. A porter was cleaning the area but the customer said the wet floor sign was off to the side of the clean up."
(5) During the trial, Shoprite notes that the Walkers both admitted that they did not see the jelly spill until after Mrs. Walker fell, but afterwards they could see that the spill was "all over" and occupied "a pretty good area." Mrs. Walker also testified she "never even looked" at the floor where she was walking.
(6) During the trial, Shoprite raised several discrepancies in Mrs. Walker's testimony relating to damages that could have undermined her credibility with the jury ( i.e., the length of her absence from the senior center, an unreported episode of shoulder treatment following a 1995 accident) and emphasized her lengthy delay in seeking treatment ( i.e., that the Walkers first sent a report to Shoprite in July 1999 that did not identify shoulder injuries, and she did not seek treatment for her shoulder for almost two years after the fall).
(7) The parties agree that the jury's verdict will be upheld unless it is against "the great weight of the evidence." The standard for this Court's review is set forth in the Delaware Constitution which provides "that on appeal from a verdict of a jury, the findings of the jury, if supported by the evidence, shall be conclusive." Accordingly, great deference must be given to the jury verdict in deciding a motion for a new trial that is based upon insufficient evidence. The factual findings of a jury should not be disturbed if there is "`any competent evidence upon which the verdict could reasonably be based.'" Upon review, this Court views the record from the perspective most favorable to the jury's verdict. The verdict should not be set aside unless "a reasonable jury could not have reached the result."
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Del. Const. art. IV, § 11( 1)(a).
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
Mercedes-Benz of N. Am., Inc. v. Norman Gershman's Things to Wear, Inc., 596 A.2d 1358, 1362 (Del. 1991) (citations omitted).
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Id.
(8) A storekeeper owes a duty to the public to see that the portions of its premises ordinarily used by its customers are kept in a reasonably safe condition for their use. That duty includes taking reasonable steps to remove dangerous conditions. Patrons, however, must also exercise reasonable care while walking in the store. It is negligent for a patron not to see what is plainly visible when there is nothing to obscure his or her view. "A person is under the affirmative obligation to watch where he or she is walking, to exercise the sense of sight in a careful and intelligent manner to observe what a reasonable person would see."
Howard v. Food Fair Stores, New Castle, Inc., 201 A.2d 638, 640 (Del. 1964).
Winkler v. Delaware State Fair, Inc., No. 231, 1991, 1992 WL 53412 (Del. Feb. 20, 1992) (order citing Franklin v. Salminen, 222 A.2d 261 (Del. 1966)).
Id.
(9) Reviewing the evidence in the light most favorable to the jury's verdict, we conclude there was sufficient evidence for a jury to find that Shoprite had acted reasonably in discovering the broken jar of jelly, and that it had taken reasonable steps to clean up that spill. The jury could have concluded that the two employees had promptly discovered the spill and had promptly begun cleaning it up (a fact which is undisputed). The jury could also have found that those employees were negligent by failing to put out the "wet floor" sign, or, consistent with the manager's report, by placing the sign in an ineffective location. Such a finding would account for the relatively small percent of negligence apportioned to Shoprite.
(10) We further conclude that a jury could also find that Mrs. Walker was negligent by not keeping a reasonable lookout while walking in the store. That is particularly so if the jury believed her testimony that she never looked down, that there was nothing to obscure the view between the Walkers and the spill, and that they did not see the spill before the fall, even though the purple jelly was spread "all over" a large area. A reasonable jury could conclude, under the circumstances, that a store customer who fails to see the remains of a large grape jelly spill and walks right into it, is primarily responsible for her fall.
(11) The Walkers argue that Shoprite presented no affirmative evidence upon which a jury could find that Mrs. Walker was negligent, much less find that she was more that twice as negligent than Shoprite. The Walkers' own admissions were competent evidence of their contributory negligence. The only testimony regarding the care taken by Ms. Walker came from Ms. Walker herself. It was unequivocal. She stated, ". . . I never even looked. Because when I go shopping I look up at the shelves; I don't watch on the floor." Although customers of a grocery store do not need to keep a constant lookout, they must keep a reasonable lookout, and exercise reasonable care. Ms. Walker's uncontroverted statement that she never looked at all, and does not do so when she shops, was sufficient, credible evidence for the jury to find that Ms. Walker failed to keep a proper lookout, and failed to exercise reasonable care.
(12) Ms. Walker's testimony is similar to the plaintiff's testimony in Winkler. In that case, the plaintiff stated "`she was not looking at the ground; she was not looking at anything, but just walking without paying attention to where she was stepping.'" This Court affirmed the trial court's determination that the plaintiff was negligent as a matter of law. In this case, the jury found it as a matter of fact.
Winkler v. Delaware State Fair, Inc., No. 231, 1991, 1992 WL 53412 (Del. Feb. 20, 1992).
Id.
(13) In Storey, this Court held:
Thus, on the weight of the evidence [of] motions, we hold that a trial judge is only permitted to set aside a jury verdict when in his judgment it is at least against the great weight of the evidence. In other words, barring exceptional circumstances, a trial judge should not set aside a jury verdict on such ground unless, on a review of all the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
The record reflects there was sufficient competent evidence for a reasonable jury to conclude that Mrs. Walker's negligence exceeded that of Shoprite. Accordingly, we hold that the Superior Court properly denied the motion for a new trial.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland Justice