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Darton v. Kroger Company8/25/1998
ntiff's testimony supports her claim that her fall was caused by the pallet. On both direct and cross examination, plaintiff never wavered from the fact that one of her feet "caught" or "hit" something in the aisle causing her to fall. According to the plaintiff, she either caught her foot on the pallet or she stumbled after she hit her foot on the pallet. Plaintiff further established that the pallet was the only object immediately below her when she fell. Therefore, plaintiff's testimony established that her fall was caused by the wooden pallet.
Donna Murphy, the manager of the Kroger store at the time of the accident, testified that Kroger owns the pallets used in the store and that the store manager controls where the pallets are located throughout the store. She also testified that the pallet in question was used to display soft drinks, and at the time of the accident, the pallets were empty because the independent soft drink vendors were in the process of changing the display. According to Murphy, the pallet is empty for approximately ten minutes between the period that one soft drink vendor removes merchandise and another vendor places merchandise on display. Murphy testified that in an effort to protect the area surrounding an empty pallet, displays known as "shippers" are placed next to the empty pallet so that a shopper will notice the pallet. Murphy acknowledged that the "shippers" are placed by Kroger in what are considered "vulnerable areas." According to Murphy, Kroger selected the "vulnerable areas" by anticipating the direction that their customers will walk while shopping.
Based on Murphy's testimony, we conclude that defendants were aware that an empty pallet at the end of an aisle created an unreasonable risk of harm. This Conclusion is based on the fact that a "shipper" was placed next to the empty pallet as a warning or notice to customers of the presence of the pallet. Immediately after the accident, photographs were taken of the area where the pallet in question was located. These photographs revealed that a "shipper" was located on the left side of the pallet, but the entire pallet was not secured.
Although defendants anticipated the direction that customers would take while shopping, there was nothing to restrict customers from using another path. Defendants were aware of the potential risk of harm created by placing the pallets at the end of the aisles and their failure to properly secure the area demonstrated a lack of reasonable care. Therefore, plaintiffs established by a preponderance of the evidence that defendants breached their duty to maintain their floors in a reasonably safe condition, and further that Kroger's action or inaction was a cause-in-fact of plaintiff's harm. At this point, the trial should have continued for presentation of evidence by the defendants.
The trial court was clearly wrong in granting the defendants' motion for involuntary dismissal of plaintiffs' claims. Accordingly we reverse the judgment dismissing the plaintiffs' claims against Kroger and its liability insurer and remand this case for further proceedings.
Because we find that the plaintiffs proved their case by a preponderance of the evidence, we pretermit a Discussion of the remaining assignments of error concerning the trial court's ruling on the motion to compel and the use of the deposition at trial.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion, including completion of the trial. Costs of this appeal are assessed to the defendants, the Kroger Company Continental Casualty Company.
REV
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