WAL-MART STORES, INC. v. REGIONS BANK TRUST DEPARTMENT, Guardian of the Estate of Michael Burkeen; Linda Burkeen, Individually, and as Guardian of the Person of Michael Burkeen
01-839
Supreme Court of Arkansas
Opinion delivered March 7, 2002
69 S.W.3d 20
As already indicated above, any delay in affording children protection or in providing them with a permanency plan works against those children‘s welfare and best interests. In other words, delays in the noncriminal, dependency/neglect proceeding would only serve to injure the public interest and run counter to the purpose of Arkansas’ adjudication hearings like the one now before us. Therefore, we conclude that the trial judge did not err in denying Hathcock‘s motion for continuance.
Affirmed.
Taylor, Halliburton, Ledbetter & Caldwell, by: Mark Ledbetter; and Lane, Muse, Arman & Pullen, by: Richard S. Muse, for appellees.
TOM GLAZE, Justice. This is an appeal from a jury verdict in favor of Michael and Linda Burkeen in their negligence action against Wal-Mart. In addition to asking this court to determine the sufficiency of the evidence, Wal-Mart also poses a challenge to two of the trial court‘s evidentiary rulings. Because the appeal presents a substantial question of law concerning the construction of a rule of evidence, jurisdiction is properly in this court under Ark. Sup. Ct. R. 1-2(b)(6).
We first turn to the facts of this case. About 6:45 p.m. on November 12, 1992, Michael Burkeen slipped and fell on a liquid substance on the floor of a Wal-Mart store in Hot Springs; the liquid apparently came from a broken snow globe that had been part of a Christmas display. He hit his head on the floor, and later reported that he had begun to experience memory problems. Through Linda, Michael sued Wal-Mart for negligence, alleging first, that the store had been negligent in how it stacked the display of snow globes, and second, that it had failed to inspect the floors and clean the liquid substance on the floor.1
During discovery, Wal-Mart disclosed that it wanted to introduce evidence that Linda had pled guilty to theft of property. This felony conviction resulted from a check-kiting scheme in which she had been involved after Michael‘s slip-and-fall accident; however, upon her successful completion of probation, Linda‘s record was expunged. The expungement occurred prior tо Michael‘s filing this
The matter proceeded to trial, and the jury found in favor of the Burkeens, awarding Michael $169,000 and Linda $67,000. From that jury verdict, Wal-Mart brings the instant appeal, arguing that 1) there was insufficient evidence to support the jury‘s finding of Wal-Mart‘s negligence; 2) the trial court erred in excluding evidence of Linda‘s felony conviction for theft of property; and 3) the trial court erred in excluding the audiotape and transcript of Michael Burkeen‘s interview with Police Chief Montie Sims regarding his knowledge of Linda‘s involvement in the check-kiting scheme.
For its first point on appeal, Wal-Mart argues that there was insufficient evidence to support the jury‘s finding that Wal-Mart was negligent. At the close of the Burkeens’ case, Wal-Mart moved for a directed verdict, arguing that the Burkeens had failed to produce sufficient evidence to show that 1) Wal-Mart caused the snow globe to be on the floor, 2) the globe‘s liquid had been on the floor for any length of time, and 3) Wal-Mart had knowledge of the broken snow globe and of the substance on the floor, yet failed to remove it. The trial court granted Wal-Mart‘s motion as to the question of whether or not Wal-Mart had been negligent in its stacking of the snow globes, but denied it with respect to whether or not Wal-Mart knew or should have known of the presence of the substance on the floor.
Our standard of review of the denial of a motion for directed verdict is whether the jury‘s verdict is supported by substantial evidence. Ethyl Corporation v. Johnson, 345 Ark. 47, 49 S.W.3d 644 (2001); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). We will reverse only if there is no substantial evidence to support the jury‘s verdict and the moving party is entitled to judgment as a mаtter of law. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). Substantial evidence is that which
The principles that govern slip-and-fall cases have been frequently stated by this court. Those principles are set against the general backdrop that an owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Fayetteville Diagnostic Clinic, supra; Morehart v. Dillard Dep‘t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995); Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). To establish a violation of that duty, the plaintiff must prove either: (1) that the presence of a substance upon the floor was the result of the defendant‘s negligence, or (2) the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997); Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997); Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). With respect to part two of this test, the burdеn is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). The mere fact that a person slips and falls does not give rise to an inference of negligence. Brunt v. Food 4 Less, Inc., supra. Also, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence, but instead, it must be proved that the substance was negligently placed there or allowed to remain. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993).
When Michael had not returned home by 11:00 p.m., Linda and her daughter Kristy Johnson went out to look for him. Linda testified that when she found Michael, he was slumped over the steering wheel of his truck in the Wal-Mart parking lot; when she opened the door of the truck, he was semi-conscious. Kristy went into the Wal-Mart to call 911, and Linda waited with Michael. According to Linda, he kept asking where he was, and he had a knot on his head. When the paramedics arrived, Michael was still confused, but was able to talk some. At the hospital, Linda noticed that he had given an incorrect address, and he seemed confused and unaware of where he was. Since the accident, she testified that his personality had changed, and that he had become forgetful and unable to communicate or work.
Debra Sharp was shopping in the same department as Michael at the time of the accident; shе had noticed a “puddle of stuff” on the floor moments before, and had warned her little girl to walk around the water. Out of the corner of her eye, Sharp saw Michael fall and heard a “pop” as his head hit the ground. His shopping cart rolled into her after he fell. Sharp stated that she only noticed the puddle because she was looking down at her daughter, and would probably not have noticed it if her children had not been with her. She described the puddle as having a “milky color like when wax gets wet and then it starts to dry,” and the puddle “might have been a little smaller than eight-by-twelve” inches. She did not remember seeing the parts of a broken snow globe on the floor, but did notice snow globes on the shelves as she was shopping. Sharp further related thаt, “[b]ecause there was a discoloration around the edges of this puddle, it just told me that it had been there awhile. I worked in a motel for years and you kinda notice those kind of
David Bateman was employed by Wal-Mart at the time of the accident. He testified that he heard the accident and got over to that aisle as soon as he could; upon arriving, he saw Michael sprawled across the aisle and bleeding profusely from his hands. There was glass protruding from his hand, and there was a broken snow globe on the floor. Bateman cleaned up the puddle after his suрervisor arrived and instructed him to do so. Bateman stated that he did not remember any flaking or discoloration around the edges of the spill, but he conceded that it was possible the substance could have been on the floor for as long as a day. He also testified that when he cleaned up the floor, the snow globe material had “slightly discolored the floor.” There was a clean spot where the liquid had been, and it looked as though the top layer of floor wax had been removed.
The next witness to testify was Edward Sorrells, a chemist who conducted an analysis of the snow globe‘s contents. He noted that the substance inside the snow globe was primarily water, but also contained some “dissolved solids.” His analysis stated that the liquid in the glоbe “would not dry simply by exposure to atmosphere, and it would only dry completely in a forced air oven at a temperature well above the boiling point of water. At a lower temperature, the liquid would not dry completely and the retained dissolved solids would regain water on cooling to regain a liquid appearance.” Sorrels also concluded that for the substance in the snow globe to even begin to dry, it would take at least twenty-four hours. If the borders of the liquid were “flaky,” Sorrels estimated that it would take more than a day to get that appearance.
Dale Adams, a Wal-Mart assistant manager, testified that when he got to the area where Michael fell, he saw a broken snow globe on the floor and associated that with the accident. Adams did not recall whether the area where the snow globe had fallen and broken was whitening or had changed the condition of the floor where the liquid had been spilled. He said that he could not picture a substance being on the floor long enough to change its color. Adams further testified that in his experiences with substances being on the floor in Wal-Mart, either an associate or a customer would see and report it so it could be cleaned up quickly; when anyone reported a spill, someone from Wal-Mart would grab a paper towel as quick as possible to get it cleaned up.
In Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997), there was conflicting testimony about whether or not a substance had been on the floor for any аmount of time. The trial court granted summary judgment in favor of the store, but this court reversed, holding that there a fact question was presented by the affidavit of the plaintiff, Wilson, wherein he stated that there was a “dirty looking liquid,” mixed with food particles, on the floor that looked like it had been walked through for quite some time and that had spread over a wide area. Such a statement “raise[d] the specter of a foreign substance having been present long enough that store employees should have known of its presence.” Wilson, 330 Ark. at 309.
In the present case, Wal-Mart relies on Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992), in which this court affirmed the trial court‘s grant of summary judgment and held that there was no evidence tending to establish the time between the appearance of a substance on the floor and the time of the accident. There, plaintiff Sanders had no idea how long the substance was on the floor prior to her fall, and the closest evidence on this point was her “admitted guess” that the matter was tobacco juice and that it had “gelled.” In affirming, this court held that, absent some showing the substance actually was tobacco juice and evidence as to how long it would have taken it to “gel,” there was no evidence that the substance had been there long enough that store personnel should have had notice of it.
Here, on the other hand, Michael Burkeen offered not only the testimony of Debra Sharp, who stated that, based on her
For its second point on appeal, Wal-Mart contends that the trial court erred in excluding evidence of Linda Burkeen‘s felony theft conviction, which Wal-Mart sought to introduce tо impeach her credibility. Linda pled guilty to felony theft of property in Yell County in 1993; the charges arose out of a check-kiting scheme in which she engaged after Michael‘s fall in November of 1992. On July 6, 2000, the Yell County Circuit Court entered an order pursuant to
Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by
death or imprisonment in excess of one [1] year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(Emphasis added.) Wal-Mart contends that, because Linda‘s expungement was not accompanied by a finding of rehabilitation, the underlying conviction should not have been excluded from evidence.
Here, both parties cite Steele v. State, 280 Ark. 51, 655 S.W.2d 381 (1983). In Steele, the issue presented was whether or nоt the trial court erred in refusing to permit defense counsel to impeach one of the State‘s witnesses with evidence of a prior felony conviction. The trial court had refused to allow such cross-examination because the earlier conviction had been expunged by the sentencing court. This court affirmed, writing as follows:
This being the first interpretation of Rule 609(c) as applied to a situation where a witness‘s prior record has been expunged, we choose to give the rule its plain and ordinary meaning. Therefore, we hold that the trial court correctly ruled that the expungement of the prior proceedings, whether it was a conviction or not, rendered such record inadmissible. The trial court found that [the witness] had been rehabilitated prior to the entry of the order of expungement. Rule 609(c) requires the court to refuse to allow a conviction which has been expunged, to be used for testing the credibility of a witness.
Steele, 280 Ark. at 53 (emphasis added).
Here, the Burkeens contend that, under the last sentence quoted above from Steele, the trial court‘s ruling was correct. Further, the Burkeens rely on the language of
Other states interpreting Rule 609(c) have reached similar conclusions. See State v. Hettich, 70 Wash. App. 586, 854 P.2d 1112 (1993) (Rule 609(c) bars admission of a prior conviction only where there has been an express finding that the person convicted has been rehabilitated); State v. Fierson, 146 Ariz. 287, 705 P.2d 1338 (Ct. App. 1985) (explicit finding of rehabilitation is necessary in order to bar use of a prior conviction under Rule 609(c)); Durham v. State, 571 S.W.2d 673 (Mo. Ct. App. 1978) (Rule 609 provides that pardoned convictions can be used to impeach the credibility of a witness unless the pardon was based on a finding of rehabilitation or innocence).
We conclude that, in the absence of a finding that Linda had been rehabilitated, the trial court‘s decision to exclude evidence of her conviction under
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
(Emphasis added.)
As previously noted, the federal rule is identical to Arkansas’ rule on this point. The congressional commentary to
The admission of prior convictions involving dishonesty and false statement is not within the discretion of the court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement.
Fed. R. Evid. 609(a) — Senate Conference Committee Report (1999).
A leading commentator notes that such “second-prong crimes” — i.e., those involving dishonesty or false statements — clearly include crimes such as perjury, criminal fraud “in many different forms,” embezzlement, and false pretense, but points out that “this list is not exhaustive, and certainly forgery and counterfeiting should be included, along with other crimes involving deceit, untruthfulness, or falsehood.” Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 6.32 (2d ed. 1999) (citing, as examples of such crimes, United States v. Morrow, 977 F.2d 222 (6th Cir. 1992) (counterfeiting); United States v. Kane, 944 F.2d 1406 (7th Cir. 1991) (delivering check knowing it will not be honored); Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 (3d Cir. 1989) (forgery, passing bad checks)).
The crime of which Linda was convicted was check-kiting. This crime is defined as a “practice of writing a check against a bank account where funds are insufficient to cover it and hoping that, before it is deposited, the necessary funds will have
Wal-Mart‘s third argument on appeal is that the trial court erred in excluding an audiotape and transcript of a 1993 interview Michael gave to Chief of Police Montie Sims, who was investigating the check-kiting charges against Linda and who spoke with Michael approximately six months after his fall. Wal-Mart asserted that the transcript of that interview would serve to show that Michael‘s memory was not as impaired as he claimed, and it argued to the trial court that the transcript was relevant to rebut Michael‘s claims and the testimony of his experts regarding the degree of his impairment. Prior to trial, the trial court excluded evidence of Michael‘s misdemeanor conviction for criminal mischief, ruling that it was not a felony that could be admitted under Rule 609. Further, the court found that the prejudicial effect of the audiotape and transcript outweighed any probative value they might have, and therefore rejected Wal-Mart‘s proffer of the items.
On appeal, Wal-Mart continues its argument that it should have been permitted to introduce the tape and transcript to show that, contrary to Michael‘s tests, he had ample memory and could carry on a normal conversation under stressful conditions. His interview with Officer Sims, Wal-Mart submits, belies the claims of Michael‘s expert witnesses and his family as to the severity of Michael‘s brain impairment and that he had no short-term memory. Wal-Mart asserts that, when confronted with possible criminal prosecution, Michael “answered the questions precisely, intelligently, and to the point” and “had vivid recall of the name of the bank officer who had contacted him, his whereabouts, conversations with his wife and other matters.” Wal-Mart notes that it is readily apparent from the tenor of the conversation between Michael and Officer Sims that Michael had no problems remembering details and recent events; such evidenсe stood in direct contrast to testimony from one of Michael‘s neuropsychologists who testified that Michael “could not even remember to come in out of the rain.”
Ordinarily, questions regarding the admissibility of evidence are matters entirely within the trial court‘s discretion, and
Affirmed in part; reversed and remanded in part.
HANNAH, J., dissents.
CORBIN, J., not participating.
JIM HANNAH, Justice, dissenting. I must respectfully dissent. While I agree with the majority that there is sufficient evidence to support the jury‘s finding that Wal-Mart was negligent, I cannot agree with the majority‘s holding that the expunged conviction of Mrs. Burkeen is admissible under
In reading the majority opinion, I must conclude that the holding is based upon a failure of Mrs. Burkeen to use the correct words in drafting her order expunging and sealing her conviction. It appears this Court now holds exact wording in the order is required by Rule 609(c) before expungement is effective. I must note that expungement is granted by statute, not by the rules of this Court.
The word “rehabilitation” does not appear in the order expunging the witness‘s conviction in Steele. The Court just used the word “rehabilitation” in its opinion in characterizing that the terms and conditions of the earlier order had been met. The order in Steele provides in pertinent part “that the defendant has met all conditions pursuant to said plea and the behavior of the defendant since January 26, 1978, has been exemplary and the defendant has conducted himself as a model citizen.” The order regarding Mrs. Burkeen provided more simply in pertinent part, “[t]hat the Court now finds that the Defendant has satisfactorily complied with the orders of this Court, and the Petition to Expunge and Seal should be granted.” It is apparent that in both cases the defendants had done what the court required of them when they were convicted under a statute allowing later expungement, and that both had complied and received expungement as provided under the statute.
What we are engaged in is a discussion of who drаfted the better order. The order in Steele was certainly more extensive, but no more effective than the order in this case, and neither order used
If we consider the expungement statute, this matter becomes more clear. The effect of expungement is set out in
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual‘s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
I have found two instances where an expunged conviction is admissible in Arkansas. The present case fits into neither instance. The first instance is set out in the expungement statutes.
In holding in Gosnell, supra, that expunged felony convictions could be admitted for purposes of determining enhanced punishment, this court stated:
There is good reason to follow the basic rule of statutory interpretation in this instance. Every benefit extended by this statute is of the type to encourage the offender‘s progress toward rehabilitation. That is, a reformed convict should be encouraged to apply for a
job, to assert his civil rights, as by registering to vote or running for office, and to discharge a good citizen‘s duty to appear аs a witness without fear of unnecessary embarrassment. But there is no reason either to encourage him to commit another crime or to believe that the legislature intended to do so. The trial judge was right in refusing to read into the statute a provision that is simply not there and that would actually be contrary to the over-all legislative intent.
Gosnell, 284 Ark. at 301. In Gosnell, the court was considering expungement of a youthful offender, but the principle is the same in the present case even though it was an adult offender under a different statute.
Resort to federal cases and cases from foreign jurisdictions is unnecessary and confuses the issue further. Existing Arkansas law is determinative of the issue. Also, although as stated in the majority opinion, the wording of the federal rule and the rulе in other States may be identical, that alone is not sufficient to resort to consideration of interpretation of those rules in their jurisdictions. The statutes and law at issue in this case are Arkansas law, while the precedent cited from the federal courts and foreign jurisdictions is based on wholly different law. Even where the statute in Georgia is similar, the precedent is not helpful because we have our own that controls. This court has already spoken on this issue:
The order stated that LaFerney had met all the terms and conditions of the earlier order and had in fact been a model citizen. The order provided that all charges were dismissed.
. . . .
Therefore, we hold that the trial court correctly ruled that the expungement of the prior proceedings, whether it was a conviction or not, rendered such record inadmissible. The trial court found that he had been rehabilitated prior to the entry of the order of expungement. Rule 609(c) requires the court to refuse to allow a conviction which has been expunged, to be used for testing the credibility of a witness.
Steele, supra, 280 at 52-53. Wal-Mart wished to use the evidence to impeach Mrs. Burkeen. This court has declared an expunged conviction may not be used for that purpose. Steele, supra.
We are struggling with the use of specific words. As a general proposition, this court has declined to require “magic words.” Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980) (reversed on other grounds in Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998)). Curtis v. Patrick, 237 Ark. 124, 371 S.W.2d 622 (1963). Neither the order in Steele, nor the order in the present case even mentions rehabilitation. Both indicate that the conditions set out by the sentencing court were met, and the party was entitled to expungement. Under the holding of this court, expungement obtained under the same statute may or may not be effective. It depends on whether the order was worded just so to meet the new requirements of
The majority also holds that because the conviction of Mrs. Burkeen was excluded in error, the trial court abused its discretion in excluding the audiotape of Mr. Burkeen. This was based on the premise that if the conviction was admissible, then so was the audiotape. The audiotape was of an interview of Mr. Burkeen where he was being asked about Mrs. Burkeen‘s involvement in the activities that led to her conviction. Because I believe that the conviction was properly excluded, I would not find the trial court abused its discretion in excluding the audiotape. I would affirm on the trial court‘s exclusion of Mrs. Burkeen‘s conviction and the exclusion of the audiotape as well.
I would affirm.