This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Rebecca Bruber, et al.,



Kmart Store #3952, et al.,


Filed December 22, 1998


Amundson, Judge

Washington County District Court

File No. C2-95-6026

Owen R. Humphreys, Herbert, Welch & Humphreys, P.A., 20 North Lake Street, Suite 301, Forest Lake, MN 55025 (for respondents)

James D. Knudsen, Louise A. Behrendt, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401(for appellants)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Mulally, Judge.[*]



Respondent, Rebecca Bruber, slipped and fell at the Forest Lake Kmart and subsequently brought a premise liability action against Kmart. Kmart appeals a jury verdict favorable to Bruber, alleging that: (1) Bruber failed to demonstrate that Kmart had either actual or constructive notice of the spill; (2) the jury's finding that Bruber was negligent, but that this negligence was not the direct cause of her accident, was perverse and contrary to the evidence; and (3) the district court committed prejudicial error in allowing into evidence the testimony of Laurie Lewis. Because we conclude the evidence does not support a charge of constructive notice to Kmart, we reverse.


At about 10:00 a.m. on May 22, 1993, respondent Rebecca Bruber entered the Forest Lake Kmart store. Bruber did not use a shopping cart, but proceeded directly down the main aisle of the store to the food aisle, where she selected some mixed nuts, cranberry juice and one other item. She then proceeded back down the main aisle to the checkout to purchase the goods. While walking towards the cashiers, Bruber slipped and fell in a large puddle of blue liquid that looked like laundry soap. Bruber sustained injuries to her right elbow and shoulder.

Bruber testified that the spill was large; bigger than two "eight-and-a-half by eleven" sheets of paper. Bruber did not know how the spill had originated, and, in fact, no other witnesses were able to shed light on the origin of the spill. Bruber did not observe any empty or broken containers surrounding the spill. Further, Bruber did not have any idea how long the spill had been there. Finally, she testified that Kmart was busy when she entered the store on the day of the accident and that there were many people in the main aisle.

Kmart representatives testified that, at the time of the accident, Kmart had a clean-up policy for spills. This policy required the first employee to discover a spill to clean it up or, in the case of a more extensive spill, to remain by the spill, preventing persons from walking in it, while paging another employee to bring cleaning materials. The Kmart manager who had been on duty the morning of the accident testified that when he first arrived at the scene to assist Bruber he observed that the large blue spill was still intact and had not been tracked or smeared around.

Bruber and her husband brought a negligence action against Kmart. A jury found that although Bruber and Kmart were both negligent, Kmart's negligence was the direct cause of Bruber's injuries. The jury awarded Bruber damages. Kmart made a motion for a directed verdict at the close of Bruber's case. Without explanation, the district court denied this motion. Kmart also filed post-trial motions, requesting a judgment notwithstanding the verdict or a new trial. Kmart now appeals from the district court's denial of these motions.


"In reviewing a directed verdict, we make an independent determination of the sufficiency of the evidence to present a fact question to the jury." Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983). A directed verdict is warranted only when, in light of the evidence as a whole, the trial court would have a duty to set aside an opposing verdict as manifestly contrary to the evidence or the law. Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4. 1992). This court must accept as true the evidence, and all reasonable inferences that can be drawn from it, in favor of the party against whom the directed verdict is sought. Id.

In reviewing the denial of a judgment notwithstanding the verdict (JNOV) we "must affirm if there is any competent evidence reasonably tending to sustain the verdict." Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). Furthermore, on review we assume that the jury found the evidence of the prevailing party to be credible. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). All inferences are drawn in favor of the nonmoving party. Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983). JNOV is to be granted only where it would be impossible for reasonable minds to come to a different conclusion because the evidence is so overwhelmingly on one side. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).

This present matter involves premise liability based on negligence. A landowner owes a general duty of reasonable care for the safety of invitees on its premises. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). Although shopkeepers owe invitees a duty to keep and maintain their premises in reasonably safe condition, they are not insurers of the invitees' safety. Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966). Unless the dangerous condition actually resulted from the direct actions of a shopkeeper or his or her employees, a finding of negligence is appropriate only where the shopkeeper had actual or constructive knowledge of the dangerous condition. Messner v. Red Owl Stores, 238 Minn. 411, 413, 57 N.W.2d 659, 661 (1953). Constructive knowledge of a hazardous condition may be established through evidence that the condition was present for such a period of time as to constitute constructive notice of the hazard. Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253, 178 N.W.2d 242, 243-44 (1970).

The present facts are similar to those in Messner, where a woman slipped on a banana peel in a grocery store. 238 Minn. at 412, 57 N.W.2d at 660. In Messner, the supreme court affirmed the trial court's decision to grant the defendant's motion for a JNOV. Id. at 415, 57 N.W.2d at 662. The court found that plaintiff failed to present any evidence that defendant placed the banana peel on the floor, thus creating the dangerous condition. Id. at 413, 57 N.W.2d at 661. Further, although the banana peel was brown and shriveled, the plaintiff did not present any evidence to conclusively show when the peel was placed on the ground. Id. at 414, 57 N.W.2d at 662. Further, the Messner court found that a customer could have placed the peel on the floor just prior to the accident. Id. Notably, there was no evidence that the peel had been walked upon, pressed down, or torn. Id. Thus, the court concluded, even when viewed in the light most favorable to the plaintiff, the evidence was insufficient to show actual or constructive notice of the dangerous condition and the plaintiff failed to meet its burden of proof that the grocery store was negligent. Id. at 415, 57 N.W.2d at 662.

As in Messner, respondents failed to present any evidence that Kmart, or its employees, deliberately placed the blue liquid on the ground. Further, respondents failed to show that Kmart or its representatives had actual knowledge of the blue spill. Thus, to recover on the basis of Kmart's negligence, respondents had the burden of showing that Kmart had constructive knowledge of the spill. In the present matter, the district court concluded that Kmart had constructive knowledge of the spill, finding the aisle of the spill was well traveled and that Kmart employees, some high school students, were assigned to watch over this area. We disagree that these facts provide sufficient evidence from which a jury could find constructive knowledge.

Even viewing the evidence in the light most favorable to respondents, there is no evidence to show that this spill had been on the ground long enough for Kmart to be charged with constructive knowledge of the dangerous condition. On the contrary, the evidence demonstrates that, although the store was busy prior to the accident, the spill was wet, intact, and had not been tracked around. Further, the floor area in the vicinity of the spill could not be seen from the checkout counters. Bruber herself testified that a person had to be down on the floor, right next to the spill, to see it. In fact, Bruber had walked down the same aisle just minutes prior to the fall, while on her way to select her purchases, and she had not seen the spill at that time.

While this court views the evidence most favorably to respondents and looks for any competent evidence supporting the verdict, the overwhelming evidence in the record indicates that respondents failed to establish that the spill had been on the ground for a sufficient amount of time to charge Kmart with constructive notice. In fact, the evidence establishes the opposite; the spill was quite fresh and had yet to be discovered. Thus, even given the deferential standard of review for a directed verdict and JNOV, the evidence in the record does not support the jury verdict charging Kmart with constructive knowledge of the spill. Therefore, we reverse the district court's denial of Kmart's motions for directed verdict and JNOV.

We need not address Kmart's additional argument that the verdict was perverse and contrary to the evidence or its argument that the district court committed prejudicial error by allowing Laurie Lewis's testimony.


[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.