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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2011-2012 _________________________ 2100655 _________________________ Mary Tucker v. Wal-Mart Stores, Inc. Appeal from Mobile Circuit Court (CV-10-900169) MOORE, Judge. Mary Tucker appeals from a judgment of the Mobile Circuit Court ("the trial court") entered in favor of Wal-Mart Stores, Inc., on her claim of negligence resulting from a slip and fall that occurred in Wal-Mart's Tillman's Corner store.

2100655 Facts On January 4, 2009, Tucker and her mother-in-law visited the Wal-Mart at Tillman's Corner in Mobile to purchase

groceries. According to Tucker, she had returned to the overthe-counter pharmacy department to retrieve a different

product for her mother-in law when, at approximately 1:00 p.m., she fell. Tucker stated that, at the time she fell, she Tucker testified

did not know what had caused her to fall.

that a female Wal-Mart employee approached her and pointed out that she had slipped on some grapes. Tucker testified that

the floor was dirty from where she had slid and mashed the grapes, which, she stated, looked dirty and old. Tucker

testified that she had passed through the aisle where she fell on four different occasions during her visit before she fell and that she had not seen grapes on the floor on any of those occasions. Don Wiggins, the store's manager, testified that, at the time Tucker fell, Wal-Mart had in effect a "safety sweep" policy, the purpose of which was to make sure that there were no hazards on the floor and to make sure that the counters were clean and neat so that customers could find what they

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2100655 were looking for. Wiggins testified that the policy entailed

Wal-Mart personnel making a radio announcement every three hours calling for a safety sweep, at which time Wal-Mart employees would do a safety sweep, which included looking in their areas for any debris on the floor and making sure that there was nothing on the counters that was falling off or that needed to be straightened or "zoned," and a maintenance employee starting at one end of the store, going through the store with a large broom to help keep debris off the floor and to keep the floors clean from dirt and dust. Wiggins also

stated that Wal-Mart's safety-sweep policy also included all employees in the store continuously conducting a safety sweep at all times as they were moving throughout the store. After viewing a surveillance video of the area around the over-the-counter pharmacy, which lasted from 11:53 a.m. until 1:53 p.m. on the date of Tucker's slip and fall, Wiggins identified one employee in the area as "Cindy"; Wiggins testified that "Cindy" did not appear to be doing a safety sweep in the video but, rather, appeared to be in line for a prescription while on her break. Wiggins also identified

another employee, Maria Padilla, in the video and testified

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2100655 that it appeared that she was leaving the department and was looking down as she walked; thus, he concluded, it appeared that Padilla was conducting a safety sweep. Wiggins testified that another employee in the surveillance video appeared to be stocking counters and not conducting a safety sweep. Wiggins

also identified two more employees in the video, one of which he stated appeared to be observing the floor as she walked through the area and the other of which he stated appeared to be looking at the counters and floors as she walked. Wiggins

testified that if an employee was walking throughout the store and not conducting a safety sweep, then that employee would be in breach of Wal-Mart's policy. Wiggins testified that the over-the-counter pharmacy is on the other side of the store from where the grapes are kept. He stated that he had viewed the entire surveillance video and that he had not seen grapes on the floor or dropped onto the floor. Wiggins testified that Wal-Mart did not know when the

grapes fell to the floor. Maria Padilla testified that she was the only employee working in the over-the-counter pharmacy on the date of Tucker's fall but that she had been at lunch at the time of

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2100655 the fall and had not known that the fall had occurred until she returned from lunch. Padilla testified at trial that, in

the video, she was walking toward the back of the department and could have been conducting a safety sweep; she testified in her deposition, however, that she was not conducting a safety sweep at that moment in the video. Padilla testified

that there had never been a time when she was working in the over-the-counter pharmacy department when three hours would have passed without her conducting a safety sweep. She

testified that if she sees something on the floor, she picks it up and cleans it or, if it is a major spill, she guards it until she can contact maintenance to clean it. testified throughout remember. Procedural History Tucker filed in the trial court a complaint against WalMart on January 25, 2010, alleging claims of negligence and wantonness. Wal-Mart filed an answer on February 26, 2010. that the she day had on not seen 4, anything 2009, on Padilla the she floor could

January

that

A jury trial was held on February 14 and February 15, 2011. The trial court dismissed Tucker's wantonness claim at the

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2100655 close of Tucker's case, submitting only Tucker's claim of negligence to the jury. At the close of the evidence, the trial court conducted a "charge conference" outside the presence of the jury. At

that conference, Tucker requested that the trial court give the jury "Plaintiff's Jury Charge Number 8," which read: "Under Alabama law, a store is 'under a duty to exercise reasonable care to provide and maintain reasonably safe premises' for the use of its customers. 'A store is not an insurer of a customer's safety and is liable only if it negligently fails to keep the premises in a reasonably safe condition.' In the context of this case, a plaintiff must prove one of three things: (1) that the defendant had actual notice that the grape or grapes were on the floor; (2) that the grape or grapes had been on the floor for a sufficiently long period of time so that the store had constructive notice of the hazard; or (3) that the store was otherwise delinquent in failing to discover and remove the defective condition." (Citations omitted.) Tucker also requested that the trial

court give the jury "Plaintiff's Jury Charge Number 6," which stated, in pertinent part:1

The first part of "Plaintiff's Jury Charge Number 6" stated: "1. To establish the negligence of Wal-Mart in the present case, [Tucker] must prove that Wal-Mart 'was delinquent in not discovering and removing the substance.' Brooks v. Winn-Dixie of Montgomery,
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2100655 "2. A store is delinquent in not discovering the substance if its procedure 'was inadequate or that it was performed inadequately on the day of plaintiff's fall.' Hale v. Kroger Limited Partnership I, 28 So. 3d 772, 783 (Ala. Civ. App. 2009)." Wal-Mart requested that the trial court give the jury "Defendant's Requested Jury Charge Number 24," which stated: "Storekeepers have a duty to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers. The store is not an insurer of the customer's safety but is liable for injury only in the event it negligently fails to use reasonable care in the maintaining the premises in a reasonably safe condition. The burden rests upon [Tucker] to reasonably satisfy you from the evidence that the injury was proximately caused by the negligence of the store or one of its employees. Actual or constructive notice of the presence of the offending substance or condition must be proven before the store can be held responsible for the injury." In charging the jury, the trial court stated, in

pertinent part: "In the context of this case, [Tucker] must prove one of three things. One, that [Wal-Mart] had actual notice of the grape or grapes that were on the floor. Two, that the grape or grapes had been on the floor for a sufficiently long period of time so

Inc., 716 So. 2d 1203, 1207 (Ala. Civ. App. 1997)." (Some citations omitted.) That portion of the charge was included as the third prong of "Plaintiff's Jury Charge Number 8" and is not at issue on appeal.
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2100655 that the store had constructive notice of the hazard; or three, that the store was otherwise delinquent in failing to discover and remove the defective condition. "The burden rests upon [Tucker] to reasonably satisfy you from the evidence that the injury was caused by the negligence of the store or one of its employees. Actual or constructive notice of the presence of the offending substance or condition must be proven before a store can be held responsible for the injury but [it] is not always necessary for the plaintiff to offer direct evidence as to the length of time a foreign object or substance has remained on the floor. It is permissible to infer the length of time an object or substance has remained on the floor from the nature and condition of the foreign object or substance." The trial court refused to give "Plaintiff's Jury Charge Number 6," over Tucker's objection. After the jury was

released to begin its deliberations, the jury returned to the courtroom and "asked to be instructed on the law pertaining to a shopkeeper's duty and liability." The trial court then

repeated the instructions quoted above, again over Tucker's objection. The jury subsequently returned a verdict in favor of WalMart, and the trial court entered a judgment on that verdict. Tucker filed a motion for a new trial on March 3, 2011. The

trial court entered an order denying Tucker's motion for a new

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2100655 trial on March 3, 2011. Tucker filed her notice of appeal to

this court on April 13, 2011. Discussion Tucker argues on appeal that the trial court erred in its jury instructions on the issue of a storekeeper's duty. Specifically, she argues that the trial court gave confusing and misleading jury instructions on a storekeeper's duty by first giving an instruction similar to "Plaintiff's Jury Charge Number 8," which included three prongs of liability, and then giving an instruction similar to "Defendant's

Requested Jury Charge Number 24," which included only the first two prongs and indicated that Tucker was required to prove either actual or constructive notice for liability to ensue. Tucker also argues that the trial court erred by

failing to give part two of "Plaintiff's Jury Charge Number 6," which, she maintains, "was essential for the jury to understand the third prong of liability of a storekeeper's duty," as referenced in "Plaintiff's Jury Charge Number 8." "'A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case.' Pressley v. State, 770 So. 2d 115, 139 (Ala. Crim. App. 1999). Thus, 'generally speaking, the standard of review for jury
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2100655 instructions is abuse of discretion.' Pollock v. CCC Invs. I, LLC, 933 So. 2d 572, 574 (Fla. Dist. Ct. App. 2006)." Arthur v. Bolen, 41 So. 3d 745, 749 (Ala. 2010). "'"In a jury case, a party is entitled to have its case tried to a jury that is given the appropriate standard by which to reach its decision, and a wrongful refusal of a requested jury charge constitutes a ground for a new trial. See, C.I.T. Financial Services, Inc. v. Bowler, 537 So. 2d 4 (Ala. 1988). An incorrect, misleading, erroneous, or prejudicial charge may form the basis for granting a new trial. See, Nunn v. Whitworth, 545 So. 2d 766 (Ala. 1989). However, the refusal of a requested, written instruction, although a correct statement of the law, is not cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the trial court's oral charge. See, Rule 51, Ala. R. Civ. P. When examining a charge asserted to be erroneous, this Court looks to the entirety of the charge to see if there is reversible error. See, Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala. 1986)."' "Cackowski v. Wal

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