This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








Marilyn D. Barry,





Berggren's Market Enterprises, Inc.,

d/b/a Apache New Market,




Filed July 1, 2003


Robert H. Schumacher, Judge


Washington County District Court

File No. C5015186



Christopher A. Grove, Brandon D. Derry, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for respondent)


Denise L. Reuter, James M. Hamilton, Oskie, Reuter, Hamilton & Sofio, P.A., 970 Raymond Avenue, Suite 202, St. Paul, MN 55114 (for appellant)



            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Berggren's Market Enterprises, Inc., d/b/a Apache New Market, appeals the denial of its motions for a new trial or judgment notwithstanding the verdict (JNOV).  Berggren's argues that the jury verdict in favor of respondent Marilyn D. Barry is contrary to the evidence and the law.  We affirm.


            On May 10, 1995, Barry was shopping in Apache New Market, a grocery store owned by Berggren's.  About 7 p.m. that evening, assistant manager Kevin Rolph was called to clean up a spill in one of the store aisles.  At least one large jar of mayonnaise had fallen to the floor and broken.  Rolph retrieved a mop, a bucket of water, and one yellow warning cone.  He mopped the aisle until he felt it was necessary to change the water in the bucket.  He placed the single yellow cone on the area he had last been mopping. 

            As Rolph went to change the water, Barry approached the area of the spill, slipped, and fell, causing her to suffer a deep cut on her chin and a shoulder injury that eventually required surgery.  Rolph filled out an accident report describing his actions and took photographs of the area where Barry had fallen.  The next day, store manager Michael Berggren prepared the store's official report.

            On July 12, 1999, Barry brought an action against Berggren's, alleging that the store had been negligent in failing to warn of a dangerous condition, failing to maintain the area in a safe condition, failing to keep the area fit for the use intended, and other acts and omissions.  At trial, Barry testified that she did not see what caused her to fall, but that her feet came out from under her and she fell forward.  Rolph  testified, acknowledging that parts of the area were somewhat slippery when he left the area to change the water.  Rolph also testified that he placed a warning cone to mark the spill and was unaware whether the store had cleaning products that would have been more effective on a mayonnaise spill than plain water.

            Michael Berggren testified that keeping the store clean and safe was a top priority.  He also testified that it was store policy that the area of a spill should be barricaded to prevent accidents and that he was aware that only one warning cone had been placed at the site on this occasion.

            The court denied Berggren's motion for a directed verdict.  The jury found that Berggren's was negligent and that its negligence was a direct cause of Barry's injury.  The jury awarded Barry $55,349.44.  Berggren's moved for a new trial or JNOV, arguing that it had not breached its duty to Barry because the spill was open and obvious, the store did not have reasonable notice and opportunity to cure any defective condition, and the evidence did not support the conclusion that the slippery floor caused Barry's fall.  The court denied the motions, finding that viewing the evidence in the light most favorable to Barry, it was sufficient to support the jury's verdict, and no errors of law existed that would warrant a new trial.


            This court reviews the denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  The evidence is viewed in the light most favorable to the verdict.  Id.  The "jury's verdict will not be set aside unless it is manifestly and palpably contrary to the evidence" and no reasonable person could find as the jury did.  Alevizos v. Metropolitan Airports Comm'n of Minneapolis & St. Paul, 452 N.W.2d 492, 499 (Minn. App. 1990), review denied (Minn. May 11, 1990).  A similar standard applies when this court reviews the denial of a motion for new trial.  A motion for new trial should not be granted unless the verdict is so contrary to the evidence that it must be the product of error or bias.  LaValle v. Aqualand Pool Co., Inc. 257 N.W.2d 324, 328 (Minn. 1977).

            Berggren's argues that it did not breach its duty of care to Barry because the hazard was open and obvious to a reasonable person in Barry's position.  The test for whether a hazardous condition is open and obvious is "not whether the injured party actually saw the danger, but whether it was in fact visible."  Martinez v. Minn. Zoological Gardens, 526 N.W.2d 416, 418-19 (Minn. App. 1995) (quotation omitted), review denied (Minn. Mar. 29, 1995).  Even if a condition is obvious, the possessor of land has a duty of care to an invitee if harm to the invitee could reasonably be anticipated.  Baber v. Dill, 521 N.W.2d 493, 496 (Minn. 1995). 

            It is undisputed that one yellow warning cone was placed at the scene of the spill.  The photographs taken by Rolph do not show any obvious wetness or slippery substance on the floor.  The photos do not indicate the boundaries of the spill area or exactly where Barry fell.  Further, that Berggren's' employee attempted to clean up the spill and placed a warning cone shows that Berggren's recognized that the slippery floor did present a danger to invitees such as Barry.  Viewing this evidence in the light most favorable to the verdict, it is not unreasonable to conclude that a reasonable person at the scene might not realize from the placement of one warning cone how much of the aisle was slippery.  The evidence does not show that the hazard was open and obvious as a matter of law, as Berggren's claims.

                Berggren's next claims it did not breach its duty of care to Barry because it was in the midst of addressing the hazard when Barry fell.

[R]easonable care for the safety of invitees requires * * * reasonable notice of the need for, and a reasonable opportunity to take, corrective action for the safety of invitees.


Mattson v. St. Luke's Hospital, 252 Minn. 230, 233, 89 N.W.2d 743, 745 (1958).  The evidence here does show that Berggren's' employee took steps to address the hazard.  Rolph mopped the area with water and placed the warning cone before he walked away.  But it is clear that Rolph used only plain water, without a degreaser or other chemical cleaner and that he placed only one cone to warn that a slippery area existed.  Furthermore, the store's safety policy directed that the area of a spill should be barricaded, which was not done here.  This evidence reasonably supports the conclusion that Berggren's failed to take adequate corrective action to prevent harm to invitees, and it does not show that Berggren's met its duty of care as a matter of law.

            Berggren's argues Barry failed to show that Berggren's' negligence was the cause of her fall, an essential element of her claim.  If she failed to prove an essential element, Berggren's' motion for directed verdict or JNOV should have been granted as a matter of law. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). 

            Generally, whether a defendant's negligence is the cause of a plaintiff's accident is a question for the fact-finder, unless the facts are undisputed or can lead to only one reasonable conclusion.  Smith v. Kahler Corp., Inc., 211 N.W.2d 146, 151 (Minn. 1973).  If circumstantial evidence is sufficient to create a reasonable inference of causation and that inference outweighs any other reasonable theory or inference, then the evidence may sustain the verdict.  Id. at 150. 

            Berggren's argues there is insufficient evidence that Barry slipped on the mayonnaise residue rather than tripping on her own feet or on some other object.  Barry testified that she lost her footing suddenly and never saw what caused her to fall.

It is undisputed here that mayonnaise had spilled in the general area of Barry's fall, that cleanup efforts had been taken but not completed, and that the floor was still somewhat slippery when Rolph left to change the water.  This evidence supports the reasonable inference that Barry's feet came in contact with the slippery mayonnaise residue and caused her to fall.  Even though Berggren's suggests that Barry should have presented more evidence of the spill boundaries, the jury's determination of causation is not palpably contrary to the evidence.  The evidence supports the jury verdict, and the district court was correct in denying Berggren's' posttrial motions.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.