### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 2000 Session
BETTY L. FOX v. FOOD L ION, INC., S TORE #539 Appeal from the Circuit Court for Knox County No. 2-156-97 Harold Wimberly, Judge FILED SEPTEMBER 21, 2000
No. E1911-00015-COA-R3-CV

Betty L. Fox sued Food Lion, Inc., Store #539, seeking damages for

personal injuries sustained when she fell in an aisle of the defendant’s store. The trial court approved the jury ’s verdict for the plaintiff and entered judgment in her favor for $112,000. The defendant a ppeals, raising

three issues, which we restate as follows: (1) whether there is material evidence that the defendant

had actual or constructive notice of the allegedly dangerous condition that caused the plaintiff’s fall; (2) whether the defendant owed a duty of care to the plaintiff; and (3) w hether there is ma

terial evidence

to support the jury ’s allocation of f ault. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded
C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Clarence Risin, Knoxville, Tennessee, for the appellant, Food Lion, Inc., Store #539.
Mark E. Fl

oyd, Kn oxville, Te

nnessee, for the ap

pellee, B etty L

. Fox.
OPINION
I.
We review the facts in this case mindful of the limited nature of our jurisdictionin jury case s:
It is the long est ablished r ule in thi s state tha t in reviewi ng a judgment basedupon a

ju ry verdict

the appellate co

urts are not at libe

rty to weig h the evidence to decide where the preponderance lies, b ut ar e limited to determining whether there is material evidence to support the verdict; the appellate court is required to tak e the strongest legitimate view of all of the e

vidence in favor

of the verdict, to-2- assume the truth of all tha

t tends to support it,

allowing all reasonable inferences to sustain the verdict, and to discard al l to t he co ntr ary. Having thus examined t he record, if there be any material evidence to suppo r t the verdict, it must be affirmed; if it were otherwise, the parties would

be deprived of their constitutional right to trial by ju ry. Electric Power Bd. v. St. Joseph Valley Structural Steel Corp., 691 S.W.2d 522, 526 (Tenn. 1985) (citations omitted); see also Truan v. Smith, 578 S.W.2d 73, 74 (Tenn. 1979). Our role is clear

. We must scour the rec

ord in se arch of material evidence of facts, and reasonable inferences from those facts, that tend to

support the jury ’s verdict. I n the process,

we must disrega

rd all evidence to the contrary, even though such evidence may have supported one or more of Food Lion’s theories of defense at trial. In summary, our respon sib ili ty i s to determine whether there is any material evidence to support th

e jury’s verdict, see Tenn. R. App. P. 13(d), regardless of the quantum of evi den ce t o th e con tra ry.
II. On the morning of June 20, 1996, at approximately 9:15, Fox, who was then 65 years old, was shopping i n defendant ’s grocery store. She began sho pping i n aisleone, which was approximately

11 feet wi de and had rows of fixed shelves on either side and various displays of merchandise

down the center.

Fox proceeded do

wn the right-ha

nd side of aisle

one to the rear of the store. She stopped and picked up a box of crackers and began reading the

label on the box. After a few steps, she looked up and saw several 12-pack cases of soft drinks stacked on the flo

or against the shelves on the other side o f aisl e one. As she began walking toward these stacked cases, she tripped and fell over an empty wooden display ba se, fracturing her hip. The subject display base was approximately

eight feet long , three feet wide, and six inches high. It was located between two dis pla ys of merchandise in the center of the aisle. The display

base had been placed in the aisle by the defendant’s store planner several months prior to the accident and was typica

lly utilized as

a display for 12-pack cases of soft drinks.
After Fox fell, Linda

Ellison, the customer service manager on duty that day , was summoned to aisle one. Upon ar

riving, Ellison not

ed that the dis

pl ay base was empty. As re quired by the store’s safety policies and procedu re s, Ellison filled out an incident report. She also took a photograph

of the scene, showing the empty display base

and the soft drink c

ases stacked to

the side against the shelves. In her report, Ellison noted that the reason for the acc ident was that Fox
fellover a Coke display

stand -- 12pk Cokes were sitting on the floor to the left of displa

y stand -- Ti

les had been rep

laced last night

. She also noted o n the report that an “unusual condition” existed at the site of the accident. She testified at trial that the condition she was referring to was the replacement of floor tiles in that area the night before.-3-

Jeffrey Shelton was the produce manager of the store on the da y o f the accident. He had arrived at work that day at

6:00 a.m. to

begin stocking the produce department. He recalled that he went th rough aisle one

approximately

10 to 15 times the morn ing plaintiff fe

ll in order to

brin g produce from the coolers located in the rear of the store to the produce department in the front of the store. He testified that on each of these trips, he saw 12-pack cases of soft drinks on the di

splay base andthat he never saw it empty. Shelton further testified that after the accident

occurred, the display base still had some 12-pa

ck cases on it and

that these remaining cases were

removed to facilitate the taking of a photograph of the display base.
At the close of the plaintiff’s proof, and again at the conclusion of all the proof, Food Lion moved for a directed verdict, which motion was, each time, denied. The jury returned a verd

ict in favor of Fox, finding that Food Lion was 80% at fault for her injuries. It assessed the remainder of the fault to Fox. The trial court approved the jury’s verdict and awarded Fox $112,

000 in damages. This appeal followed.
III.
A.
FoodLion first argues that there is no mat erial evidence to support the jury’s finding that FoodLion had actual or constructive notice of the dangerous cond iti on that caused Fox’s fall and resulting injurie

s. Generally speaking, the liability of an owner or operator of property for a dangerous or defectivecondition on its premises is dependent upon a showing that the condition (1) was caused or created by the owner/operator or its age nt, or (2) if created

by someone other than the principal or its agent, was a condition of which the owner/operator had actual or constr

uctive notice pri

or to the accident. Hardesty v. Service Merchandise Co., 953 S.W.2d 678, 682 (Tenn. Ct. App. 1997); Martin v. Washmaster Auto Center, U.S.A., 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996).
We find that there is

material evidence from which the jury could have concluded that floor tiles had been replac

ed in the gener

al area of the di

splay base the night before the plaintiff fell. There was also material evi

dence indicating

that when the plain

tiff fell, the base was empty. From these facts, the jury

could have reasonably concluded that an agent of the store had removed the soft drink cases from the display base the night before the plain

tiff’s fall and stacked them against the shelves to facilitate

the replacement of the floor tiles in the general area of the plaintiff’s fall. Furthermore, the jury could ha

ve reasonably

concluded from th

e evidence, inc

luding the incide

nt report, that the soft drink cases had not been re-s ta cked on the displa y base follo

wing the complet

ion of the tile re placement

project. Although this latter conclusion contradicts the testimony of the defenda nt’ s produce manager

that the display base was not empty immediately after the plaintiff’s fa ll, the jury was free to disregard his testimony, particularly in light of the testimon y of Fo x and the customer service manager to the

contrary. “Reconciling apparently conflicting testimony and evaluating the witnesses’ credibility are, in the first instance, the jury’ s responsibilities.” Grissom v. Metropolitan-4-

Gov’t of Nashville, 817 S.W.2d 679, 683 (Tenn. Ct. App. 1991). The jury could have c onclude d from the producemanager’s tes timony, howe

ver, that he indee

d traversed aisl

e one 10 to 15 times the morning of the accident and had seen what was there to be seen, that is, the empty display base. From all of this evidence, the jury could have rea so nably concluded that Food Lion create d the dangerous condition or, at a minimum, had actual notice of the cond ition prior to the pla

intiff’s fall. We therefore find that there is material evidence to support a finding that Food Lion is legally culpable with respect to the dangerous condition resulting from the empty display base.
B.
In order to assert a

successful clai

m of negligenc

e, a plaintiff must

p ro ve the following elements: “(1) a duty of care owed by the de fendant t

o the plaintiff; (2) conduct by the defendant falling below the stan dard of care amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) p roximate causation.” Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998). In determining whe

ther a duty e

xists, which is a quest

ion of la w, see Carson v. Headrick , 900 S.W.2d 685, 690 (Tenn. 1995), a court must balance the foreseeability and g ravity of the harm against the burden on the defendant to engage in alternative conduct that would have prevented the harm. Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).
FoodLio n argues that it owed no duty to Fox because her injury was not for eseeable. Spe cif ica lly, it

argues that it had no notice of the dangerous condition; that the display was ope n and obvious; that

it was not foreseeable that plaintiff would be reading a box of crackers while walking through the store; and that her injuries were not foreseeable in light of her familiarity

with the store.
FoodLion’s first a

rgument -- that

it did not owe a duty to Fox because it had no notice of the dangerous condition -- is without merit. We have already determined that there is material evidence in the record to support a finding that Food Lion created or had ac tual notice of the d angero us condition, thereby imposing a duty on Food L ion to act with reasonable care. Next, Food Lion contends that it could not have foreseen the probability of harm given the open and obvious nature of the display base. The defendant emphasizes the considerable size of the base, as well as the “stark contrast” between the base -- being black in color -- and the

white floor. It is also Food Lion’s contention t h at Fox negligen

tly failed to

observe the “ope

n and obvious” danger posed by the

empty display base because she was reading a box of cra ckers while walking down the aisle. Moreover, Food Lion argues that Fox’s injuries were not foreseeable because she was a frequent shopper at the store and thus wasf amiliar with the store’s layout, including the location of the display base.1 Restatement (Second) of Torts § 343A provides, i n pertinent

part, that

“[a] possessor of land is not liab le to his invitees

for physical

harm caused to them

by any activity or c ondition o n the land who se danger is known or obvious to them, unless the possesso r should antic ipate the harm despite such knowledg e or obvio usness.” -5- The so-called “open and obvious” doctrine was addressed and ch anged by the Supreme Court in Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998). In Coln , the Supreme Court adopted the approach of the Restatement (Second) of Torts § 343A 1 and held as follow s:
That a danger to the

plain tiff was “open or obvious” does not, ipso facto, relieve a defe

ndant of a duty

of car e. Instead, the duty issue must be analyzed

with regard to f

oreseeability

and gravity

of harm, and the feasibilit

y and availa

bility of alternative con

duct that would ha ve pre vented the harm. The factors provided in the Restatement (Second) of Torts § 343A relate directly to the for eseeability question; in short, if the foreseeability and gravity of harm po sed from a defendant’s c

onduct, even if

“open and obvious,” outweighed the burden on the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care. The circumstances of the case are then analyzed un

der comparative

fault.

Coln, 966 S.W.2d at 43. Upon reviewing the record, we cannot agree with Food L ion that it had no duty under the duty-of-care

analysis of Coln . The base was only six inches tall and was placed between two taller center-of-the

-aisle displays stocked with merchandise. Even if the subject display base was “open andobvious,” however, such a condition would

not necessarily relieve Food Lion of a duty of care to its customers. See id. A premises owner’s duty may ar ise, despite the obviousness of the dangerous condition, if the owner “has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Id. at 41 (quoting Res tatement (Seco nd) of Tor ts, § 343A (

comment f

)). We find that Food Lion had reason to expect that the attention of a customer such as Fox would be distracted; Linda Ellison, the defendant’s customer service manager, acknowledge d as much when she testified that merchandise is placed on shelves and on displays for the purpose of attracting the attention of customers. Furthermore, a grocery store should reasonably expect customers to inspect andread items while they are shopping. Thus, even if Fox had been re ading a box of crackers when she fell -- a theory unsupported by the evidence in this case -- her injuries were not unforeseeable. On the contrary, we find that the plaintiff’s fall and resulting injuries were en tirel y forese eable . In fact, Food Lion acknowledged in its own safe ty p olicies and procedures the potential hazard of leavin g a display base empty. Both the def endant’s customer service manager and its produ c e manager admitt

ed that such a con

dition is a violation o

f those policies a

nd procedures.-6-

Fin all y, the fact

that Fox had regular

ly shopped in

the store does not r

elieve Food L

ion of its duty of care with regard to this dangerous condition. There was no evidence to suggest that the display base had been empty on any of Fox’s prior visits. Furthermore, the fact that Fox may have been familiar with the general layout of the store does notchange the fact that this display base, left emp ty, was a dangero

us condition that impo

sed on Food Lio

n a duty to ac

t w ith re asonable care. Ther e is material evidence from which a jury could reasonably conclude that Food Lion breached its duty in this case.
C.
Fin all y, Food Lion contends that there is no material evidenc

e to support the jury’s allocation of 80% of the fault to Food Lion and 20% to Fox. It argues that Fox was responsible for more than 50% of her injuries. A

jury’s alloc

ation of fault will

be set aside only if there is no material evidence to support the verdict. See Turner v. Jordan , 957 S.W.2d 815, 824 (Tenn. 1997). Upon reviewing the evidence, we find

that there is material evidence to suppo rt the jury’ s allocation of fa ult in this case. This issue is

also found adver

se to the defenda

nt.
IV.
The judgment of the trial court is affirmed. Costs on appeal are taxed

to the appellant.

This case is remanded to the trial court for enforcement of the judgment and

collection of costs assessed below, all pursuant to applicable law.

___________________________________ CHARLES D. SUSANO, JR., JUDGE