Aрpellant Kroger Company appeals djudgment ge. of appellee Sharon Smith in the amount of $58,828.53. Smith had filed a complaint against Kroger in negligence after Smith injured her knee when her shopping cart tilted over while she was taking groceries to her car. Smith predicated her claim of negligence on the dual contentions that Kroger had a duty to assist her to her car and that it had a duty to warn her of the danger associated with a person of her size pushing a fully-loaded shopping cart. Kroger appeals the denial of its motion for a directed verdiсt in which it argued that it had no duty to assist or warn. Kroger’s arguments have merit, and we reverse on both issues.
On July 22, 1997, Smith, then age twenty-three and a woman of small stature, went to the Kroger grocery store in Helena with her young daughter and cousin. Smith purchased a month’s worth of groceries that the courtesy clerk sacked and placed into a shopping cart, or what the parties refer to as а “bascart.” According to Smith, the cart was filled with twenty-five to thirty bags of groceries with two cases of soft drinks underneath. The courtesy clerk pushed appellee’s cart aside and spoke with the cashier a moment before moving to another lane to sack groceries for Smith’s cousin. Smith testified that she waited a moment, while the cashier and clerk were speaking, and then proclaimed, “I guess I’ll have to take my own groceries out.” Smith was not sure whether the courtesy clerk heard her comment. Smith then exited the store pushing the cart with her daughter in it. She proceеded down a ramp to the parking lot, but the cart tilted over when she was half-way down the ramp. Smith unsuccessfully attempted to aright the cart, and it landed on her knee.
Smith did not recall stepping on anything slippery or observe that there was anything wrong with the cart or the ramp. She stated that she did not request assistance with her bags and said that she had no reason to believe that she would encounter any difficulties in taking her groceries to the car. She believed that the cart fell over because it was overloaded and top heavy.
In support o’f her claim that aрpellant owed a duty to assist her in taking her groceries to the car, Smith introduced into evidence a written job description for courtesy clerks, which provided in part:
Customer Service — Courtesy Clerks greet customers and respond to their questions and requests in a courteous and helpful way. Moving bags to the customer’s car — Courtesy Clerks must avoid getting in the way of cars in the parking lot. They must also help the customer avoid approaching cars.
Kenneth Mister testified on behalf of Kroger. He had worked for Kroger for thirty years and was the store manager in Helena at the time of Smith’s accident. He testified that the duties of a courtesy clerk included sacking, cleaning floors and restrooms, assisting customers as needed, and cleaning the parking lot. He said that tаking customers’ bags to their vehicles was not an absolute duty and that eighty percent of their customers carried their own bags to their cars. If assistance was requested, he said “we would try to assist with this rеquest.” Mister further testified that the store attempts to maintain enough clerks to sack, keep the lot clean, and to take out groceries when requested, but that there were not enough clerks to take every customer’s bags to their car. He was not aware of any similar accidents happening over the course of his employment.
Appellant’s arguments on apрeal stem from the denial of its motions for a directed verdict. Appellant argues that the evidence fails to establish that it had a duty to assist appellee to her car or to warn hеr of any dangerous condition.
In addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Martin v. Hearn Spurlock, Inc.,
To establish a prima facie case of negligence, the plaintiff must show that she sustained damages, that the defendant was negligent, and that such negligence was the proximate cause of the damages. Id. We have defined negligence as the failure to do something which a reasonably careful person would do. Martin v. Hearn Sрurlock, Inc., supra. The mere fact that a person slips and falls does not give rise to an inference of negligence. Arkansas Kraft v. Cottrell, supra. In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed the plaintiff under the circumstances surrounding them. Costner v. Adams,
The law is quite settled that a property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Morehart v. Dillard Dep’t Stores,
In Lytle v. Wal-Mart Stores, Inc.,
In Crenshaw v. Doubletree Corp.,
The most analagous case we have found is the decision of the Illinois Supreme Court in Mick v. The Kroger Co.,
Apart from the deviation from custom, the only evidence it [lower aрpellate court] discussed are the facts that the bag of groceries involved in this suit was both large and heavy and that plaintiff told defendant’s checkout boy that the bag was too heavy for her. This proof is, however, insufficient to create a duty upon defendant to carry her bag. When told that no assistance was available, plaintiff did not have to attempt to carry out thе bag. She could have waited for her husband to return and carry out the groceries for her as she said he occasionally had done. She could have also placed the groceries in a cart which clearly was available for use. Plaintiff voluntarily purchased the groceries and chose to carry out a bag which she says she felt was too heavy for her, even though alternative courses of action were available.
Id. At 152-53.
In light of the case law in Arkansas that policy does not translate into a legal duty, and persuaded by the decision of the Illinois Supreme Court in Mick, we cannot conclude that Kroger had a duty to assist Smith to her car. In our estimation, Smith chose to take the heavily-laden cart out herself when she could have waited аnd asked for assistance. We hold that, as a matter of law, the trial court erred in denying Kroger’s motion for a directed verdict.
We also hold that Kroger had no duty to warn Smith of any danger assoсiated with handling a fully-loaded cart. The duty to warn an invitee of a dangerous condition applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfаlls and the like, in that they are known to the invitor but not known to the invitee and would not be observed by the latter in the exercise of ordinary care. Ethyl Corp. v. Johnson,
Reversed.