Maddox by and Through Maddox v. K-Mart Corp.Maddox by and Through Maddox v. K-Mart Corp.
The plaintiffs—James Michael Maddox, a minor, suing by and through his father and next friend, M.C. Maddox; and M.C. Maddox individually—appeal from the summary judgment entered in favor of the defendant, K-Mart Corporation. We reverse and remand.
On November 29, 1985, James Michael Maddox went shopping at a K-Mart store in Cullman, Alabama, with his sister,
James Michael‘s sister reported his fall to someone at the customer service desk, and, thereafter, his mother drove him to a hospital.
In answers to interrogatories, K-Mart stated that it did not have knowledge of any substance on the floor in the area where James Michael claims to have fallen. K-Mart further stated that the floors are swept during the day and cleaned as needed; that no substance was cleaned from the floor where James Michael allegedly fell; that supervisory personnel were in the area on the day of the accident, and employees were working at the customer service desk; and that all K-Mart employees are trained to be on the look-out for any unsafe condition and to correct it if one is observed.
On appeal, the plaintiffs argue that this case is controlled by Cox v. Western Supermarkets, Inc., 557 So.2d 831 (Ala.1989). K-Mart, however, argues that Vargo v. Warehouse Groceries Management, Inc., 529 So.2d 986 (Ala.1988), is dispositive. After a review of the evidence, we conclude that Cox, supra, applies to the facts of this case.
At the outset, we note that a storekeeper is under a duty to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers. However, the storekeeper is not an “insurer of the customer‘s safety,” and is liable for injury only if he “negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition.” The plaintiffs must prove that the injury was proximately caused by the negligence of K-Mart or one of its servants or employees. Actual or constructive notice of the presence of the substance must be proven before K-Mart can be held responsible for the injury. Furthermore, the plaintiffs must prove (1) that the substance slipped upon had been on the floor a sufficient length of time to impute constructive notice to K-Mart; or (2) that K-Mart had actual notice that the substance was on the floor; or (3) that K-Mart was delinquent in not discovering and removing the substance. See Cox, supra, and Richardson v. Kroger Co., 521 So.2d 934, 935-36 (Ala. 1988); Cash v. Winn-Dixie Montgomery Inc., 418 So.2d 874 (Ala.1982).
We find Vargo, supra, distinguishable from the present case. In Vargo, the plaintiff slipped and fell after removing a bag of ice from an ice machine. The plaintiff and her witness testified that there were several puddles of water in front of the ice machine and that the water “looked like it had been there for a while.” An employee for Warehouse Groceries Management testified that after the accident he did not observe any water or any evidence of a fall. This Court held:
“Based on the evidence in the instant case, any inference that Warehouse Groceries was negligent would be the result of mere speculation. Therefore, it was not error for the trial court to grant summary judgment in favor of Warehouse Groceries.”
In this case, however, we find that there was at least a scintilla of evidence that the substance had been on the floor for such a
Accordingly, the summary judgment in favor of K-Mart is due to be, and it is hereby, reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and ADAMS, JJ., concur.
MADDOX, ALMON, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
Cox v. Western Supermarkets, Inc., 557 So.2d 831 (Ala.1989), did not redefine “scintilla” as “a small wet spot on the right seat of [the] pants.” See, King v. Winn-Dixie of Montgomery, Inc., 565 So.2d 12 (Ala. 1990) (Houston, J., concurring in part and concurring in the result in part). I join Justice STEAGALL‘s dissent.
STEAGALL, Justice (dissenting).
In my opinion, this case is decided by Vargo v. Warehouse Groceries Management, Inc., 529 So.2d 986 (Ala.1988). There, the plaintiff slipped and fell after removing a bag of ice from an ice machine. The plaintiff and her witness testified that there were several puddles of water in front of the ice machine that “looked like it had been there for a while.” An employee from Warehouse Groceries Management testified that after the accident he did not observe any water or any evidence of a fall. This Court held:
“Based on the evidence in the instant case, any inference that Warehouse Groceries was negligent would be the result of mere speculation. Therefore, it was not error for the trial court to grant summary judgment in favor of Warehouse Groceries.”
In this case, Maddox‘s sister testified that the substance “looked like it was trying to dry.” There seems very little difference to me between “looked like it has been there for a while” and “looked like it was trying to dry.”
The case of Cox v. Western Supermarkets, Inc., 557 So.2d 831 (Ala.1989), relied upon by the majority, can easily be distinguished. In Cox, the plaintiff slipped and fell while walking through the produce department. After her fall, she “felt a small wet spot on the right seat of her pants.” The evidence established that ice was transported to the produce department, periodically, on the day of the plaintiff‘s fall. Furthermore, “special rubber mats were placed in the produce aisle to keep the area clean and dry.” Also, store employees were specifically assigned to maintain and inspect the produce department to ensure that it was clean and dry.
There is no evidence in this record to indicate that K-Mart employees knew the substance was on the floor prior to Maddox‘s fall, or that the substance had been
The summary judgment for K-Mart should be affirmed.
I, therefore, respectfully dissent.
MADDOX, ALMON and HOUSTON, JJ., concur.