Harry Roland HARVEY, Sr., Appellant, v. WAL-MART STORES, INC., Appellee.
No. 94-1119
United States Court of Appeals, Eighth Circuit
August 26, 1994
September 20, 1994
33 F.3d 969
The Secretary chose the figure of $1,500 because the data indicated that this amount would have a negligible effect in terms of destroying current recipients’ eligibility for AFDC. Although Congress certainly may specify cuts in federal assistance programs that have the effect of making fewer families eligible for a particular program—as indeed Congress did when it reduced by half the amount of resources a family could possess and still be eligible for AFDC—Congress expressly delegated to the Secretary the task of fixing the amount of the automobile equity exemption, and the Secretary‘s stated rationale was to choose an exemption amount at which relatively few otherwise eligible families would be eliminated from the program due to their ownership of an automobile. The government argues that the Secretary‘s statement reflects only a concern about maintaining the eligibility of then-current AFDC recipients so that large numbers of families would not be terminated abruptly. I disagree with such a narrow interpretation and conclude that the regulation fixing the $1,500 exemption, absent any adjustment for inflation, is no longer supported by the Secretary‘s stated rationale and therefore is arbitrary and capricious.
The fact that Congress did not mandate periodic review of the automobile exemption amount does not change my conclusion. As the Hazard court pointed out,
[f]irst, congressional silence on the need for review of the effects of inflation does not necessarily equal a bar to such review. Second, the Secretary himself rendered this silence unimportant by promulgating a rationale for the regulation that implied sensitivity to changing financial conditions. Even if the Secretary generally has no affirmative duty to review regulations in the absence of congressional direction to do so, where a regulation‘s rationality is dependent on current socioeconomic conditions periodic review is essential to preserve that rationality.
827 F.Supp. at 1353 (citations omitted).
In my view, this regulation no longer has a rational basis, and I would hold it invalid.
Rex Moreland Terry and Roland Metcalf, Fort Smith, AR, argued, for appellant.
Jerry L. Canfield, Fort Smith, AR, argued, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
Harry Roland Harvey, Sr. appeals from the district court‘s1 order entering judgment as a matter of law in favor of Wal-Mart Stores, Inc. in this diversity slip and fall case. We affirm.
Harvey alleged that he sustained injuries when he slipped on an unidentified substance on the floor of a Wal-Mart store. At the close of the evidence, Wal-Mart moved for judgment as a matter of law. The district court, in accordance with our recommendation in Dace v. ACF Indus., Inc., 722 F.2d 374, 379 n. 9 (8th Cir.1983), allowed the case to go to the jury and stated that it would review its ruling, if necessary, upon a properly filed motion after the jury had returned a verdict. The jury returned a verdict in favor of Harvey and awarded him $150,000 in damages. The district court then granted Wal-Mart‘s renewed motion for judgment as a matter of law.
We review de novo the district court‘s decision to grant judgment as a matter of law. See Standley v. Chilhowee R-IV School Dist., 5 F.3d 319, 323 (8th Cir.1993). “Judgment as a matter of law is appropriate only where the nonmoving party has presented insufficient evidence to support a jury verdict in his or her favor, and this is judged by viewing the evidence in the light most favorable to the nonmoving party and giving him or her the benefit of all reasonable inferences from the evidence, but without assessing credibility.” Abbott v. City of Crocker, 30 F.3d 994, 997 (8th Cir.1994).
We agree with the district court that Harvey presented insufficient evidence to support the jury verdict under the burden of proof imposed by Arkansas law. Viewed in the light most favorable to Harvey, “[t]here was no evidence from which a jury might determine without speculation or conjecture how the substance got on the floor or how long it remained there prior to the accident.” Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873, 875 (1991).
Harvey contends that he presented evidence from which the jury could infer that there was a substantial interval between the time the substance appeared on the floor and the time of his accident. He relies on his own and his companion‘s testimony describing the unidentified substance as yellow, dirty, settled, and dried and crusty on the edges. In Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861, 864 (1992), the plaintiff slipped and fell on a substance that she “guessed” was tobacco juice that had “gelled.” The Arkansas Supreme Court held:
Absent some showing that it was actually tobacco juice and evidence as to how long it would have taken it to ‘gel,’ even assuming, again without evidence, that it does gell, there was no evidence that the substance which was allegedly on the floor had been there long enough that store personnel should have had notice of it.
Id. 830 S.W.2d at 864. Here, Harvey presented no evidence regarding what the substance was or how long it would take it to turn yellow, settle, or become dirty or dried and crusty on the edges. As in Sanders, there was no evidence that the substance had been there long enough that store personnel should have noticed it.
Harvey further contends that the testimony of his companion and a Wal-Mart employee that there was a track running from the substance constituted evidence from which the jury could infer the substance had been on the floor for a substantial time. We disagree. Harvey‘s companion testified that the track was created by Harvey when he fell and that she did not see any skid marks or cart tracks or indications that others had stepped in the substance. The Wal-Mart employee testified that she did not know what caused the track.
Harvey also argues that the district court erred in excluding his companion‘s testimony, based on appearance alone, that the substance had been on the floor for at least four to five hours.
The judgment is affirmed.
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 case, 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.
WOLLMAN
Circuit Judge