Horton
Appellate judges for the Ninth District Court of Appeals reversed a $312,686 judgment in an Orange County jury verdict for a Dollar General customer who slipped and fell.
On Jan. 12, Beaumont Justices Hollis Horton and Charles Kreger found Peter Lynd failed to prove that an employee set a warning sign near thick blue liquid on the floor prior to his fall.
"While circumstantial evidence may establish an essential fact, it must transcend more than mere suspicion," Horton wrote.
Dissenting Justice David Gaultney wrote, "Legally sufficient evidence established that the defendant knew or should have known of the spill before Mr. Lynd encountered it."
Jurors awarded about $360,000, and Orange County District Judge Dennis Powell entered judgment after discounting about $50,000 in contributions.
After Lynd fell, he approached manager Kathy Overton, the only employee on duty.
A customer saw them and told Lynd she saw blue liquid on the floor.
Overton and Lynd found the spill, and Overton brought out warning signs.
Lynd sued Dollar General, claiming he injured his elbow, shoulder and head.
He testified at trial that he saw Overton put what looked like cat litter on the spill.
He said he backed into a rubber tripod and asked, "What's this for?"
He said Overton answered, "That's to keep people from stepping in the aisle way."
He said he told her the sign should be where the spill was located, not at the end section.
Lynd said Overton put it where he suggested.
Overton testified she opened the store and walked down each aisle but saw nothing.
She said she couldn't tell what the liquid was or find a container it came from.
She said she went to the stock room and returned with cautioun signs.
Horton wrote, "According to Overton, there were no warning cones in the area before Lynd fell."
"Lynd's argument relies heavily on whether reasonable and fair minded people could infer that a warning sign that he backed into after his accident was present before he fell.
"However, a witness's noticing the presence of a movable object, such as a sign, after an incident, when the site has been accessed by at least one other person between the time the incident occurred and the point the movable object is noticed, and the location is open to the public, is meager circumstantial evidence that could give rise to any number of inferences, none more probable than another."
He wrote, "Also, the inference that Lynd argues the jury reached is based heavily on his testimony that he did not see any of those warning signs put out after he fell, which he argues allowed the jury to infer that the sign he backed into was present before he fell.
"However, Lynd's own testimony contradicts this statement, as he also testified that Overton put out a warning sign before he left.
"In this case, neither Lynd nor any other witness testified that the warning sign that Lynd backed into after his accident was present in the area before the accident."
He found no evidence regarding how long the spill was present before Lynd fell.
"Finally, there was no testimony that any Dollar General employee put the substance on the floor that caused Lynd to slip and fall," he wrote.
Gaultney wrote, "The evidence was conflicting, and the jury was required to address issues of credibility."
He wrote that jurors believed Lynd and could reasonably conclude the sign was in the wrong place before the accident.
He wrote that a reasonable person could conclude that Dollar General failed to clean it up because there was only one employee in the store.
He wrote that jurors found Lynd 25 percent at fault, and the finding wasn't appealed.
Clifford Harrison represented Dollar General.
Christopher Portner and Trenton Bond represented Lynd.