This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-456

 

Mr. Francis Pikula,
Respondent,

vs.

Wal-Mart,
Appellant.

 

 

Filed October 30, 2001

Affirmed

Stoneburner, Judge

 

Crow Wing County District Court

File No. C5991416

 

 

Michelle Barone Osterbauer, Joseph J. Osterbauer, Osterbauer Law Firm, 400 Third Avenue North, Minneapolis, MN 55401 (for respondent)

 

Kent D. Mattson, Pemberton, Sorlie, Rufer, & Kershner, PLLP, 110 North Mill Street, Box 866, Fergus Falls, MN 56538-0866 (for appellant)

 

 

            Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

Appellant Wal-Mart alleges that the district court erred by denying its motion for judgment notwithstanding the verdict or a new trial after a jury found that Wal-Mart’s negligence was a direct cause of respondent Francis Pikula’s injuries from an incident that occurred in Wal-Mart’s store in Baxter.  Because there is sufficient evidence in the record to sustain the jury verdict, we affirm.

FACTS

The Baxter Wal-Mart store has rubberized matting in its entryway that begins inside the exterior entrance doors of its vestibule and continues past the interior entrance doors for a length of 25 feet.  After the rubberized matting ends, the floor is carpeted for 22 feet into the interior of the store and then becomes tiled flooring.  Wal-Mart leases 3 feet by 10 feet, rubber-backed, carpet-topped entryway mats from Lakes Area Mat Service, Inc.  The entryway mats are sometimes used to cover the tile floor at the end of the carpeting because the tile floor becomes slippery when wet.  When it appears that a lot of water will be tracked into the store, Lakes Area Mat leaves extra mats at Wal-Mart so that when a mat becomes saturated with water, employees can replace it with a dry mat.

On January 29, 1998, Lakes Area Mats placed two lengths of entryway mats adjacent to the carpet at about 8:00 a.m. and left replacement mats at the store.  Pikula entered the store at approximately 1:20 p.m.  As he stepped onto one of the entryway mats something caused Pikula to stumble.  Sharon Rathman, a Wal-Mart claims assistant, was about ten feet from Pikula and saw him regain his balance.  She immediately went over and straightened the mat that Pikula had stepped on because it had bunched up.  She indicated that the carpet on top of the mat was damp but that the floor around the mat was dry.  After straightening the mat, Rathman asked Pikula if he was all right.  According to Pikula, Rathman advised him to fill out an incident report before he left the store. 

When Pikula completed his shopping, he reported the incident to the customer service desk.  Lane McCumsey, assistant store manager, took the report.  He was working at the customer service desk, 15 to 20 feet from where the incident occurred, and had seen Pikula regain his balance.  The report says Pikula “stepped onto a floor mat rug after walking off the entry carpet and the rug slipped out from under him—possibly wet underneath—causing him to slip.” 

McCumsey testified that he inspected the mat and the area around it right after he saw the incident and again after Pikula reported the incident.  McCumsey testified that at both inspections the floor was dry but that the entryway mat was “slightly wet.”  McCumsey did not believe that the mat was in need of being changed.

Within a couple of hours of the incident, Pikula began to experience neck pain.  He sought medical attention and ultimately had his C4-5 disk removed.  The jury found that Wal-Mart was negligent and caused Pikula’s injuries and awarded damages.  Wal-Mart does not contest causation or damage but asserts that the evidence does not support the finding of negligence and that the district court erred by admitting evidence of unrelated incidents.  The district court denied Wal-Mart’s motion for JNOV or a new trial.  This appeal followed.

D E C I S I O N

 

            Wal-Mart argues that the district court erred in denying its motion for JNOV or, in the alternative, a new trial for two reasons.  First, Wal-Mart contends that Pikula presented insufficient evidence at trial to support the jury verdict finding Wal-Mart negligent.  Second, Wal-Mart contends that it is entitled to a new trial because the district court committed prejudicial error when it permitted two witnesses to testify about prior slip and fall accidents at this Wal-Mart store.

I.

            The denial of a motion for JNOV is reviewed de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Where a district court has denied a motion for JNOV, the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Id. (quotation and citations omitted).  “Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside.”  Id. (quotation and citations omitted).  “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.”  Id. (citation omitted). 

            “On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).  Because the district court has the discretion to grant a new trial, the court will not disturb the decision absent a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

            Wal-Mart argues that the district court erred in denying its motion for JNOV or for a new trial because the record is completely lacking in competent evidence to support the jury verdict finding Wal-Mart negligent.  Specifically, Wal-Mart argues that the record lacks sufficient evidence with regard to (1) risk and foreseeability, (2) the existence of a hazard, and (3) notice.

            Risk and Foreseeability

            A storeowner “must maintain his premises in reasonably safe condition for the use of all persons expressly or impliedly invited to enter.”  Messner v. Red Owl Stores, Inc., 238 Minn. 411, 413, 57 N.W.2d 659, 661 (1953) (citations omitted); Johnson v. Evanski, 221 Minn. 323, 326, 22 N.W.2d 213, 215 (1946).  In order to demonstrate a breach of duty and thereby negligence on the part of a storeowner, a party must show that the negligence is “predicated upon what should have been reasonably anticipated and not merely upon what happened.”  Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253, 178 N.W.2d 242, 243 (1970) (quotation omitted); Johnson, 221 Minn. at 326; 22 N.W.2d at 215.  “The duty is to guard, not against all possible consequences, but only against those which are reasonably to be anticipated in the normal course of events.”  Johnson, 221 Minn. at 326, 22 N.W.2d at 215 (citations omitted); Block v. Target Stores, Inc., 458 N.W.2d 705, 711 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  Despite the duty of reasonable care, a storeowner is not an “insurer” of customer safety.  Anderson, 287 Minn. at 253, 178 N.W.2d at 243; Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966). 

            Wal-Mart argues that the record lacks sufficient evidence to show (1) that Wal-Mart’s entryway mats posed an unreasonable risk of harm to Pikula and (2) that Wal-Mart had reasonable grounds to anticipate any risk of harm posed by the entryway mats. 

            Pikula introduced evidence at trial to show that the manner in which Wal-Mart dealt with the entryway mat he stumbled on posed foreseeable risk of harm.  Pikula introduced evidence that (1) an abundance of snow had fallen in the week-and-a-half prior to the incident, (2) Wal-Mart was aware of the potential for excessive tracking and had to extend its entryway mats twenty feet beyond the carpet by using two mats, (3) the entryway mats had not been changed for five fours and twenty minutes when the accident occurred, (4) Wal-Mart knew its floors became slippery when water was tracked into the store as a result of snowy, wet weather conditions, (5) there was some moisture on the mat that Pikula stumbled on, (6) the mat on which Pikula stumbled had moved from its original placement, indicating it was not on a dry floor; and (7) the small pinholes in the entryway mats may have allowed water to accumulate under the mat.  A jury could reasonably conclude from this evidence that Wal-Mart created an unreasonable risk on the day of Pikula’s stumble by failing to change its entryway mats after five hours of customer traffic when it knew that its floor conditions become slippery when wet, knew water was being tracked into the store, and could have observed that the mat in question was damp and had moved on the floor.   

            Wal-Mart correctly points out that the mats, which are intended to protect its customers from injury, do not themselves pose an unreasonable risk of harm, but fails to recognize that evidence of the manner in which it handled the mats on the day of Pikula’s stumble could give rise to foreseeable unreasonable risk of harm. 

            We conclude that because there is evidence in the record that supports a finding that Wal-Mart’s method of inspecting and replacing mats created a foreseeable unreasonable risk of harm, the district court did not err in denying Wal-Mart’s motion for JNOV. 

            Existence of the Harm

            Wal-Mart contends that Pikula failed to prove the existence of the hazard alleged and, therefore, failed to prove negligence on the part of Wal-Mart.  In support of its contention, Wal-Mart asserts that Messner, 238 Minn. 411, 57 N.W.2d 659, and Norman v. Tradehome Shoe Stores, Inc., 270 Minn. 101, 132 N.W.2d 745 (1965), require a plaintiff to prove existence of a harm before it can properly recover on a negligence theory.  In fact, although logic requires that a harm exist before a party recover on a negligence theory, Messner and Norman actually require a showing that the “defendant caused the dangerous condition or that [defendant] knew, or should have known, that the condition existed.”  Messner, 238 Minn. at 415, 57 N.W.2d at 662; Norman, 270 Minn. at 107-09, 132 N.W.2d at 750-51 (requiring a showing that “defendant’s negligence was the proximate cause of the accident and the resulting injury.”)

            As discussed above, the evidence presented at trial was sufficient to support the jury verdict that Wal-Mart should have known of the condition that caused Pikula’s accident.  Pikula introduced evidence that on the day of his injury (1) the weather conditions were snowy, (2) the entryway mats had not been changed for approximately five hours prior to Pikula’s stumble, (3) the entryway mat that Pikula stumbled on was moist at the time of his stumble, (4) the pinholes in the entryway mat may have permitted water to seep through to the floor under the mat, (5) the mat Pikula stepped on had ‘crept’ about four inches from the time it was placed, indicating the floor under it was not dry, and (6) the mat bunched up when Pikula stepped on it. 

            We conclude that the district court did not err in denying Wal-Mart’s motion for JNOV or a new trial because a reasonable jury, based upon the evidence presented, could reasonably conclude that Wal-Mart caused Pikula’s injury. 

            Constructive Notice

            An injured party bears the burden of proving that a storeowner had “actual knowledge of” a dangerous condition that caused an injury or that the dangerous condition “existed for a sufficient period of time to charge the [storeowner] with constructive notice of its presence” when the storeowner has not caused the dangerous condition.  Wolvert, 275 Minn. at 241, 146 N.W.2d at 173; Norman, 270 Minn. at 105-06, 132 N.W.2d at 748-49. 

Wal-Mart contends that it lacked actual knowledge of the hazard presented by the entryway mats on the day of Pikula’s stumble and, therefore, Pikula is required to show constructive notice.  Wal-Mart further contends that Pikula failed to prove constructive notice because he failed to introduce evidence as to when the entryway mat he stumbled on became a hazard.  See Anderson, 287 Minn. at 253-54, 178 N.W.2d at 243-44 (affirming the district court’s grant of defendant’s motion for a directed verdict because there was no evidence that the water was present “for any measurable period of time”); Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 498, 195 N.W.2d 432, 433 (1972) (holding that the plaintiff failed to present sufficient evidence of actual or constructive notice of water puddles on defendant’s floor due to the “circumstances of time and condition”); Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000) (affirming the district court’s grant of summary judgment to defendants, in part, because the hazard only existed for thirty minutes during an ongoing horse show).

            According to Anderson, Otis, and Rinn, in order to survive a motion for JNOV, an injured party must present evidence that a hazard existed for a sufficient period of time to give reasonable notice to the defending party.  The record demonstrates that a reasonable jury could conclude that Pikula presented sufficient evidence that the hazard existed for a sufficient period of time and that, in the exercise of reasonable care, Wal-Mart should have discovered the hazard.  See Bahl v. Country Club Market, Inc., 410 N.W.2d 916, 919-20 (Minn. App. 1987) (affirming the district court’s denial of defendant’s motion for JNOV, in a slip and fall action, because sufficient evidence existed that defendant knew or should have known of the alleged hazard).

            At trial, Pikula introduced evidence that (1) Lakes Area Mat Service, Inc. brought in extra entryway mats on snowy days, (2) Lakes Area Mat Service, Inc. brought in extra mats on the day of Pikula’s stumble, (3) snow and water were being tracked into the store on the day of Pikula’s stumble, (4) Wal-Mart knew its floors became slippery as a result of water being tracked into the store, and (5) the mat Pikula stumbled on was moist on the day of the incident and had moved four inches.  We conclude that the district court did not err in denying Wal-Mart’s motion for JNOV because a reasonable jury could have concluded that Wal-Mart had constructive notice of the hazard.

II.

            Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted).  “An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial.”  Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 808 (Minn. App. 2001) (quoting Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998) (citations omitted)). 

            Wal-Mart argues that the district court committed prejudicial error when it permitted two witnesses to testify about prior slip and fall accidents at its store and that it is, therefore, entitled to a new trial.  Specifically, Wal-Mart argues that the testimony regarding prior accidents was irrelevant because the prior accidents did not involve entryway mats. 

Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  “[E]vidence as to similar accidents suffered by others under similar circumstances at times not too remote from the accident involved in the litigation is admissible to show the dangerous character of the place of injury or that defendant had notice or knowledge of the dangers attendant upon the maintenance of the place of injury.”  Haukom v. Chicago Great W. Ry. Co., 269 Minn. 542, 555, 132 N.W.2d 271, 279 (1964).  “As a foundation for such evidence, it must appear that the circumstances surrounding the other accidents were substantially the same as those involved in the accident in litigation, and in most jurisdictions the determination of this question is left to the trial court.”  Id.

            The district court, over Pikula’s objection, allowed Wal-Mart to introduce evidence of safety precautions used in its store.  The district court then allowed Pikula to elicit evidence of slip and fall accidents from water on the floor that occurred despite Wal-Mart’s precautions.  One witness testified that she was aware of other slip and fall incidents at Wal-Mart that occurred as a result of snow being tracked into the store.  The second witness testified that she had reviewed two or three incident reports, reporting that Wal-Mart customers slipped as a result of water being tracked into the store.  The evidence is relevant to show that Wal-Mart knew that its floors became slippery when customers track snow and water into the store.  See Henderson v. Bjork Monument Co., 222 Minn. 241, 246, 24 N.W.2d 42, 45 (1946) (stating that evidence of prior accidents may be introduced to show that a cause is dangerous and that “a person responsible for [the cause] was aware of its dangerous character”).

The district court did not abuse its discretion by admitting the testimony because it was clearly relevant to Wal-Mart’s knowledge and was appropriate rebuttal to Wal-Mart’s evidence of safety precautions. 

Affirmed.