Appellant, Wal-Mart Stores, Inc., appeals the judgment entered in favor of respondent, Dennis Wayne Emery (“plaintiff’), in his negligence action for injuries he sustained when he slipped and fell in a Wal-Mart store. Plaintiff cross-appeals the judgment of the trial court denying his motion for prejudgment interest. The judgment is affirmed.
At the time of the accident, plaintiff was thirty-six years old and lived with his family in Grandin, Missouri. Plaintiff worked as a mechanic for a charcoal plant and also ran his own truck-driving business as a second source of income. On September 19, 1988, plaintiff went to the Wal-Mart store in Poplar Bluff, Missouri, to have a key made. The store was what is often referred to as “self-service,” where customers walk up and down the aisles with carts and handle the products themselves. The aisles are three feet wide and are intersected in a grid pattern by wider aisles called action alleys.
After he had finished with his task at the back of the store, he started to walk toward the front of the store. At the time, the store was preparing to close at 9:00 p.m. He went up an action alley and turned into one of the two aisles where pet food products were displayed. As he walked up the aisle, he glanced at the floor and then noticed a store employee directly ahead of him in another department aisle. This employee, Sandra Wawak, was restocking shelves. After taking approximately four steps, plaintiff put his right foot down on dog food causing both feet to come out from under him. As plaintiff fell, he grabbed a shelf in ah attempt to catch himself and knocked several cans of cat food on the floor. Plaintiffs effort failed, and he landed on his back on the floor. The middle of plaintiffs lower back came down on some cans of eat food. When he looked at the floor after his fall, he saw several handfuls of dry dog food scattered over a three-foot area in the aisle where he fell. 2
At trial, Tamara Lowe, the store employee in charge of the pet food department that evening, testified pet food spills were common occurrences, due to customers handling the product. The store did not place any mats on the floor in this area, although it did place mats in the live pet aisle where water *442 and pet food spilled making the floor slippery. Instead, the store kept a broom and dustpan in the pet food aisle to hasten clean up of spills. The broom and dustpan were stored behind the stacked bags of dog food, requiring employees to crawl over the bags in order to reach the items.
According to Lowe’s testimony, she found a dry pet food spill in the pet food department at 8:20 p.m. on the evening plaintiff fell. Lowe cleaned the spill using the broom and dustpan kept in the aisle. Contrary to store policy, however, Lowe did not look for nor locate the source of the spill. When Lowe left the aisle at 8:40 p.m., no other customers had been in the pet food department. At trial, Lowe testified the spill was in a different aisle from the one in which plaintiff fell and testified the dog food she cleaned up was of a different type than that on which plaintiff slipped. However, Wawak testified she saw Lowe clean up the spill at 8:20 p.m. in the same aisle as plaintiffs fall.
Steven Bost, the assistant manager of the store on duty that night, also testified at trial. He walked through the aisle on his way to see who was in the sporting goods section of the store approximately five minutes before plaintiff fell. Plaintiff was the only person in the area. Bost testified he saw no dog food on the floor of the aisle at that time. He also stated he did not notice Wawak, who was in the aisle arranging merchandise at the time.
Bost further testified about the procedures Wal-Mart had in place to ensure customers’ safety. Employees were instructed to watch for spills. If the employee happened upon one, he or she was to stay with the spill until it was cleaned up. In such cases, the employee was to determine the source of the spill, recognizing that if a spill happens once, it can happen again. In addition, stock boys conducted safety sweeps of the store every three hours, during which time the employees looked specifically for spills. Bost testified Wal-Mart had daily meetings about safety considerations.
Immediately after plaintiff fell, he felt pain in his low back and felt “a tingling and a burning numb sensation” down the back of his leg. Wawak was working further down an aisle when she heard cans falling and saw plaintiff lying on the floor. She approached him and asked if he was hurt. Plaintiff responded he was “more embarrassed than anything.” The employee told plaintiff to remain sitting while she summoned the manager. The woman returned shortly with Bost. Bost asked plaintiff if he was all right and helped him up off the floor. Plaintiff then sat on a low stack of bags containing dog food for several minutes. Sometime during these events, the cans of cat food and the spilled dog food were cleaned up. After he was notified of plaintiffs fall, Bost searched for a trail of dog food leading to the checkout area, but found no other dog food spills. At trial, Bost, Lowe and Wawak testified they saw only three pieces of dog food on the floor after plaintiffs fall. Plaintiff testified there were several handfuls scattered across the floor.
After resting for a few more minutes, plaintiff left the store, escorted by one of the employees. Plaintiff then drove home, a distance of forty miles, where he honked the horn for his wife to come out to the car. His wife drove him to the emergency room at Lucy Lee Hospital. The medical staff there found plaintiff had numbness in his right hip and muscle spasm in the right lower back. The diagnosis was muscle spasm, for which he was prescribed various painkillers, as well as a contused kidney. Plaintiff missed several weeks of work immediately after the injury, but then continued to work both of his jobs, although he was never free from pain.
Plaintiff continued seeking treatment for his back problems from various doctors over the next six years. This treatment included an MRI scan of the lumbar spine performed at St. Bernard Regional Medical Center in Jonesboro, Arkansas, on February 22, 1989; a CT of the lumbar spine ordered by Dr. E.C. Hansbrough at the Kneibert Clinic in Poplar Bluff on February 24,1989; an unsuccessful manipulation of the cervical lumbar spine on November 12, 1990; as well as a variety of physical therapy sessions. Finally, still suffering from back pain, plaintiff went to see Dr. Joseph Hanaway, a neurologist. Dr. Hanaway conducted an initial exam of plaintiffs low back on October 7, 1994, and *443 found plaintiff had a flattened lower lumbar region, spasm of the lumbar paraspinal muscles on the right, pain on the right from upper to lower lumbar region, and pain upon straight leg raise. Dr. Hanaway considered these findings to indicate plaintiff had a central herniated disc.
After obtaining and reviewing plaintiffs medical records since the accident, and after conducting a second examination of plaintiff, Dr. Hanaway ordered plaintiff to undergo several repeat tests. Plaintiff had an MRI of his lumbar spine taken on November 28, 1994. The test revealed a disc protrusion, also called a “bulging disc,” with spur formation at L3 — 4. Dr. Hanaway stated the spur formation indicated the disc protrusion had existed for some time.
Plaintiff returned to Dr. Hanaway on May 12, 1995, still complaining of persistent back pain and neck pain. Dr. Hanaway’s examination revealed muscle spasm all the way down the lumbar region, which begins approximately six inches above the belt line, as well as other symptoms indicating spinal cord compression. Dr. Hanaway ordered plaintiff undergo further MRI testing to other areas of his back and neck region. This took place on June 2, 1995. These tests revealed a disc herniation at Tll-12, which, Dr. Hanaway explained, accounted for the muscle spasm in plaintiffs whole lumbar spine. In addition, the tests revealed multiple bulging discs in the neck. He prescribed painkillers and advised plaintiff to restrict activity and work very carefully. Dr. Hana-way further stated a herniated disc is an operable problem that may rid plaintiff of some of his pain, although the likelihood of success was not high. He believed there was a greater than fifty-percent chance plaintiff could need surgery in the future. Lastly, Dr. Hanaway stated these conditions were caused by plaintiff’s fall in Wal-Mart.
Wal-Mart had plaintiff examined by its expert, Dr. Guy H. Frumson. He did not disagree plaintiff suffered from a herniated disc as well as several bulging discs. He rated the likelihood that plaintiffs fall caused the herniated disc as “in between possible and probable.” He further opined plaintiffs condition was likely to worsen and that “probably a surgery would be helpful,-”
Plaintiff testified he never had trouble with his back or neck prior to his fall in Wal-Mart. His condition has gotten worse over the period of time since the accident. He testified he had to quit his trucking business from which he earned an average net income of $4,909 for the years 1985-1988. He now goes home from his job at the charcoal plant and goes to bed. He no longer swims, scuba dives, bowls or dances and does little fishing or hunting. He is unable to help around the house, and his relationship with his wife has suffered.
At the conclusion of the case, plaintiff requested damages in the amount of $716,752, which included $105,000 as lost future wages from plaintiffs trucking business; $388,752 as lost future wages from plaintiffs job in the charcoal factory; $200,000 for pain and suffering, $15,000 for future medical needs; and $7,957 for medical expenses already incurred. The jury returned a verdict in favor of plaintiff in the amount of $660,000, but found plaintiff twenty percent at fault in the accident. This reduced the verdict to $528,000, and judgment was entered accordingly. The trial court denied Wal-Mart’s motion for re-mittitur, as well as plaintiff’s motion to amend the judgment to include prejudgment interest. Both parties appeal.
Wal-Mart raises several points on appeal. First, Wal-Mart contends the trial court erred in failing to grant defendant’s motion for directed verdict or judgment notwithstanding the verdict as plaintiff failed to make a submissible case that defendant had actual or constructive notice of the dangerous condition in time to prevent plaintiffs fall or that defendant did not have adequate safety methods.
Generally, in determining whether a plaintiff made a submissible case, the evidence is considered in the light most favorable to the plaintiff, giving him all reasonable beneficial inferences.
Resnik v. Blue Cross and Blue Shield of Missouri,
In its brief, Wal-Mart focuses on the fact two employees were in the area of the spill five to ten minutes before it occurred and saw no spill, arguing this shows WalMart could not have known of the spill through the use of ordinary care.
3
As acknowledged by Wal-Mart, the role time plays in determining whether a defendant had constructive notice of a dangerous condition has been greatly diminished.
Elmore v. Wal-Mart Stores, Inc.,
The cases cited by Wal-Mart are distinguishable. In
Elmore,
the dangerous condition was an opened pack of breath mints in the fabric department of a Wal-Mart store. In affirming summary judgment in favor of the store, the court pointed out the breath mints were laying on the floor in an area where such items were not merchandised five minutes after the area was cleaned, and plaintiff did not contest the item had been there only five minutes.
In
Head v. National Super Markets, Inc.,
The evidence showed Wal-Mart was a self-service store where customers continually handled and moved merchandise, including bagged dog food. This handling resulted in frequent spills of dog food in the aisle where customers walked. The sale method of the
*445
store, the dangerous condition involved— here, dog food spilled in the aisle in which it was merchandised — and the frequency of the occurrence were sufficient to show dog food spills were a dangerous and foreseeable condition. She
il,
In its second point, Wal-Mart contends the trial court erred in submitting Instruction #7, the verdict director, because it did not submit Wal-Mart had time to take remedial action, because it did not submit Wal-Mart failed to employ adequate safety methods, and because it was not supported by the evidence. Wal-Mart objected to Instruction #7 only on the grounds it was not supported by substantial evidence. Thus, Wal-Mart did not preserve its current contention that the verdict director was erroneously given because it failed to submit certain propositions.
Rule 70.03; Pace Properties v. American Mfrs.,
Instruction # 7 read:
In your verdict you must assess a percentage of fault to defendant if you believe:
First, there was dog food on the floor of defendant’s store and as a result the floor was not reasonably safe; and
Second, defendant knew, or by using ordinary care, could have known of this condition; and
Third, defendant failed to use ordinary care to remove it, barricade it, or warn of it; and
Fourth, as a direct result of such failure, plaintiff sustained damage.
See 22.03 MAI-Ath. The evidence that supported the submission of the verdict director includes the following: after defendant fell in the pet food aisle, he saw several handfuls of dry dog food scattered on the floor. Bost, Wawak, and Lowe all testified they saw three pieces of dog food on the floor after plaintiff’s fall. Lowe testified she had cleaned a spill of dog food just twenty to thirty minutes prior to plaintiffs fall. Wa-wak testified the previous spill was in the same aisle as plaintiffs fall.
Bost testified the store had various safety procedures in place to protect customers. The store is self-service so customers are free to browse in the aisles and handle merchandise. Spills in the pet food aisle were common occurrences, happening at least once a week. Shopping cart wheels running into the bags near the floor could cause spills. Employees were instructed to clean any spills they found. In addition, because Wal-Mart recognized that if a product spilled once, it could spill again, employees were instructed to determine the source of any spill. Lowe did not determine the source of the earlier spill, despite testifying she did clean it up. In order to clean spills of pet food, employees were required to climb over the bags of dog food stacked on a low shelf to obtain the broom and dust pan. Other aisles where pet food and water were known to frequently spill had rubber mats placed on the floor.
After cleaning the spill, Lowe left the area. Bost testified he walked down the aisle and it was clean five minutes prior to plaintiffs fall, although the jury could have disregarded this testimony as Bost conceded he did not see Wawak working further down in the aisle, even though he would have walked right past her. Plaintiff then turned down the aisle. After glancing at the floor, he started walking down the aisle looking at the merchandise. After taking several steps, his feet went out from under him, and he fell on the floor landing on his back.
This evidence, viewed in the light most favorable to plaintiff, revealed there was a dog food spill in the aisle earlier that evening that had not been properly cleaned up, or which respilled because the employee failed to determine the original source of the spill, or the employee caused a new spill to occur when climbing over the bags of food to put away the broom and dust pan. The jury could have further concluded, due to the nature of the spills and their frequency, the store could have taken other or additional precautions to warn or protect customers but failed to do so. Accordingly, the evidence is sufficient to support the submission of plaintiffs verdict director.
In its third point, Wal-Mart claims the trial court erred in allowing plaintiff to *446 testily the reason he was raising his brother’s children was because the children’s parents had been killed in a ear accident. Plaintiff testified he was raising three of his own children as well as two of his brother’s children without objection by Wal-Mart. Plaintiff was allowed to testify as to the children’s names and ages, all without complaint, as well as the fact that only one child currently resided in the home. When plaintiffs counsel asked plaintiff why he was raising his brother’s children, Wal-Mart objected as to relevancy. The trial court overruled the objection, and plaintiff answered his brother and sister-in-law had been killed in a car accident. No other reference to the matter was made throughout the duration of the trial.
Generally, evidence of a party’s family status is not admissible in actions for personal injuries.
Lewis v. Hubert,
Next, Wal-Mart contends the trial court erred in allowing Lowe to testify as to the frequency of dog food spills because there was no showing these spills were under substantially similar circumstances. Evidence of prior occurrences similar to the one that injured plaintiff may be admissible to establish notice to the defendant of the existence of a dangerous condition.
Fletcher v. City of Kansas City,
At trial and on appeal, Wal-Mart argues the number of times pet .food had spilled in the past is not relevant to how this particular dog food spill occurred, whether defendant knew about it or cleaned it up, or how long it had been there. What Wal-Mart is arguing, however, is that the use of prior similar incidents cannot be used to show what happened in this particular incident, without a strong showing of similarity. See id. However, contrary to the argument propounded by Wal-Mart, the prior spills were not used to show the way the particular spill at issue occurred and how it was handled, but rather, the prior spills were relevant to demonstrate Wal-Mart’s notice of the problem and the procedures it implemented or could have implemented to rectify the problem. There was ample evidence about stacking the bags of pet food so the ends were hanging into the aisle, the location of the broom and dust pan in the aisle, which required manipulating the bags of food, and about different measures taken in other departments where spills were frequent. Therefore, the trial court did not abuse its discretion in allowing plaintiff to present to the jury evidence of prior spills.
Wal-Mart’s fifth point on appeal claims the trial court erred in allowing Dr. Hanaway’s deposition testimony concerning what would be involved with and the cost of future surgery on plaintiff’s back. Wal-Mart argues *447 Dr. Hanaway’s testimony on these issues was too speculative and was used to prejudice the jury-
At Dr. Hanaway’s deposition, plaintiffs counsel informed Dr. Hanaway he would be asking for his opinion within a “reasonable degree of medical certainty,” although he was not going to repeat the standard with every question. Dr. Hanaway testified he understood. Later, plaintiffs counsel asked the question with which Wal-Mart now takes issue:
Q. Is there a possibility — when I say possibility, [fifty] percent or [fifty-one] percent or more chance that there might be a need for an operation in the future?
A. Yes. I mean, you say might or could or possibly yes. Of course, I can’t say no.
While we agree the question could be better framed, we find Wal-Mart’s challenge to lack merit, primarily because the record discloses several other questions and answers, some to and from Wal-Mart’s own expert, which remove plaintiffs need for surgery from the realm of speculation.
Right before this exchange, plaintiffs counsel asked if there was any cure for plaintiffs back, to which Dr. Hanaway replied, “ ... I suppose potentially operating on his back.” When asked if plaintiffs condition was operable, Dr. Hanaway replied,
I have to say yes. Okay. Any herniated disc is operable. Now the second part of this is would [an] operation on this patient’s upper lumbar/lower dorsal region help his total low back problem? And I’m not sure if it would.... [I]t may get rid of some of his pain.... So I’d hesitate to say that he should be operated on, although a herniated disc is an operable problem.
Dr. Hanaway also gave any operation a slim margin of success and stated he would not recommend one at this time. Dr. Hanaway’s testimony further revealed he recommended plaintiff continue to seek treatment and be evaluated “no less than every four months.”
Wal-Mart’s own expert was asked to render his opinion, within a reasonable degree of medical certainty, whether plaintiff would benefit from surgery. Dr. Frumson replied, “... I think probably a surgery would be helpful,.... ” A review of the experts’ depositions read to the jury reveals each expert agreed plaintiff had an operable condition and future surgery might be needed, but neither was prepared to recommend it to plaintiff at the present time.
At the outset we note it is not improper “ ‘to ask an expert witness if something might, could, or would produce a certain result. An expert’s view of possibility or probability is often helpful and proper.’ ” Stephens
v. Guffey,
Wal-Mart next argues the trial court plainly erred in allowing plaintiff to testify traces of blood in his urine indicated he had a contused kidney. Wal-Mart objected to the question on hearsay grounds, but failed to include this point of error in its motion for new trial, thereby preserving nothing for review.
Rule 78.07; Webb v. Missouri Highway and Transp. Com’n,
In its next to last point, WalMart contends the trial court erred in denying its motion for remittitur. Generally, the issue of damages is primarily for the jury to decide.
Fust v. Francois,
In determining whether an award is excessive, a number of factors are examined: (1) loss of income, both present and future; (2) medical expenses; (3) plaintiffs age; (4) the nature and extent of plaintiffs injuries; (5) economic considerations; (6) awards given and approved in comparable cases; and (7) the superior opportunity for the jury and the trial court to evaluate plaintiffs injuries and other damages.
Tennis v. General Motors Corp.,
Lastly, Wal-Mart contends we should reverse the judgment and remand for a new trial in light of the cumulative effect of the aforementioned errors, which served to prejudice Wal-Mart and deprive it of a fair trial. As previously discussed, the majority of Wal-Mart’s claims of error are without merit; others have not been preserved. However, even taking into consideration the effect of the various evidentiary arguments put forth by Wal-Mart, we cannot say the cumulative effect of these rulings served to deprive Wal-Mart of a fair trial.
In his cross-appeal plaintiff claims the trial court erred in denying his motion to amend the judgment to include prejudgment interest pursuant to section 408.040. The provision allows a plaintiff in a tort case to recover prejudgment interest if the party makes an offer of settlement to the opposing party or his or her representative and any subsequent judgment in the case exceeds the amount specified in the settlement offer. Section 4-08.04.0.2. The provision requires the settle *449 ment offer to be made in writing, to be sent by certified mail, and to be left open for sixty days unless rejected earlier. Id. If a prevailing plaintiff demonstrates compliance with the above, the plaintiff is entitled to prejudgment interest calculated from a date sixty days after the offer of settlement was made or from the date the offer is rejected without counteroffer, whichever is earlier. Id.
The trial court held a hearing on plaintiff’s motion during which the following evidence was adduced: Plaintiffs original counsel 5 testified he sent a letter dated November 22, 1991, to Wal-Mart’s representative offering to settle plaintiffs claim for $175,000. 6 It is undisputed that the letter was sent via regular mail, not certified mail. Counsel also testified and plaintiff introduced into evidence, subject to a hearsay objection, a December 20, 1991, letter from Wal-Mart’s representative demonstrating receipt of plaintiffs settlement offer. Plaintiff sent another letter to Wal-Mart’s representative on January 21, 1992, inquiring when Wal-Mart might have an answer as to his settlement offer. Counsel testified he telephoned Wal-Mart’s representative on February 11, 1992, to determine the status of plaintiffs settlement offer and wrote another letter pursuant to those negotiations on March 11, 1992. Plaintiffs offer was ultimately rejected by Wal-Mart on March 13, 1992. 7
Wal-Mart contends the trial court’s denial of plaintiffs request was proper because plaintiff failed to send the settlement offer by certified mail. Plaintiff relies on
Larabee v. Washington,
Moreover, the general rule is that prejudgment interest is not allowed in tort cases.
Vogel v. AG. Edwards & Sons, Inc.,
Wal-Mart also contends that the trial court’s ruling was appropriate because the terms of the offer prove the offer expired after thirty days. Although the plaintiffs initial letter stated plaintiff would like his attorney to file suit if a settlement could not be reached within thirty days, it did not link the withdrawal of the offer to the filing of the suit. Offers seeking to comply with section 408.040.2 should state clearly whether the offer is open for at least sixty days. An inference may have been drawn in this case that the offer would be withdrawn at the end of the thirty-day period. However, any such inference that the offer was only open for thirty days is overcome by the parties’ continuing settlement negotiations. The statute merely requires the offer be left open sixty days. Section 4-80.010.2. Here, the offer was left open well beyond the sixty-days required, until Wal-Mart rejected it on March 13, 1992.
Section 408.040.2 is clear and requires certified mail. Since plaintiffs letter was not sent by certified mail, the trial court correctly denied prejudgment interest. To the ex *450 tent Larabee is contrary to this opinion, it is overruled.
The judgment is affirmed.
Notes
. The appeal in this case was originally decided by the Court of Appeals, Eastern District, in an opinion written by the Honorable Gary M. Gaert-ner. Following transfer to this Court, the court of appeals opinion, as modified, is adopted as the opinion of this Court.
. The floor of the aisle was linoleum, white in color with gray flecks. Plaintiff testified the dog food was cream colored, round in shape and approximately three-quarters of an inch to an inch in diameter.
. We note the jury was entitled to give Bost's testimony the aisle was clear five minutes before plaintiff fell little weight where he conceded he did not see Wawak restocking shelves in the aisle despite the fact he would have walked directly past her.
. All statutory citations are to RSMo 1994 unless otherwise noted.
.The attorney who represented plaintiff during the initial proceedings was not the attorney who represented him at trial.
. Dr. Hanaway did not examine plaintiff until 1994.
. Plaintiff did not file suit until June of 1992.