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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00424-COA CONSOLIDATED WITH NO. 96-CA-00680 COA ROBERT ANGUS LADNER v. BRUCE ANDREWS D/B/A LIKE NEW CLEANING SERVICE AND K-MART CORPORATION APPELLANT APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: MARCH 14, 1996 HONORABLE JAMES E. GRAVES, JR. HINDS COUNTY CIRCUIT COURT LISA B. MILNER JAMES D. HOLLAND FOR K-MART STUART ROBINSON, JR. FOR ANDREWS CIVIL - PERSONAL INJURY VERDICT FOR DEFENDANTS AFFIRMED - 12/02/97

12/23/97

BEFORE DIAZ, P.J., COLEMAN, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: A jury in the Circuit Court of Hinds County returned a verdict in favor of defendants Bruce Andrews and K-Mart Corporation in a personal injury action. Plaintiff Robert Ladner appeals on the basis of the following issues: (1) the trial court granted improper jury instructions; (2) irrelevant evidence which was obtained in violation of the rules of discovery was admitted ; (3) the burden to prove notice of a dangerous condition was improperly placed upon Ladner; and (4) the verdict was against

the weight of the evidence. None of these issues require reversal. We affirm. FACTS On January 24, 1994, Ladner entered the Super K-Mart in Jackson. After retrieving an item from a freezer in the grocery section, Ladner alleged that he fell because of a slippery substance on the floor. He asserted that the slippery area was not roped off, and there were no warning signs in the aisle concerning the dangerous condition on the floor. As a result of the accident, Ladner claimed that he suffered a fracture to his knee which required three separate operations. At the time of the alleged fall, Like New, a cleaning service owned by Andrews, was in the process of cleaning the floors in the grocery department. K-Mart hired Like New to mop and wax the floors in the store. Like New alleged that there were at least two "bright yellow signs" in the aisle warning customers of the potential hazard. On October 13, 1994, Ladner filed a negligence suit against K-Mart and Like New. Following trial, the jury returned a verdict in favor of K-Mart and Like New. DISCUSSION

I. JURY INSTRUCTIONS a. DB-18, D-19, and P-5-A Ladner contends that jury instruction P-5-A correctly sets forth the law of premises liability. However, he asserts that the trial court erred in granting jury instructions DB-18 and D-19. Ladner argues that instructions DB-18 and D-19 are incorrect statements of the law because they fail to include the duty to conduct reasonable inspections. Additionally, Ladner asserts that instructions DB18 and D-19 are contradictory with each other and with instruction P-5-A. Ladner's instruction P-5-A provided: Under Mississippi law, K-Mart owed Mr. Ladner the following duties: 1. A duty to use reasonable and ordinary care to keep its store reasonably safe for the protection of Mr. Ladner; or 2. A duty to warn Mr. Ladner of any dangerous conditions not readily apparent existing in the store which K-Mart knew or should have known in the exercise of reasonable care; and 3. A duty to conduct reasonable inspections to discover and correct dangerous conditions existing in the store. Mr. Ladner alleges that K-Mart breached its duty to him by one of several ways. First, K-Mart kept leaking coolers on its premises which it knew or should have known was leaking fluid into the aisles. Second, whatever fluid was in the aisle which Mr. Ladner slipped on, K-Mart knew

or should have known through the exercise of reasonable care and reasonable inspections that the fluid was on the floor and K-Mart failed to remove it or warn Mr. Ladner of the condition. If you find from a preponderance of the evidence that any of these allegations were true and that allegation is a breach of any of the duties listed above, then you may find K-Mart guilty of negligence. If you further find that negligence was the sole proximate cause or a proximate contributing cause of the injuries of Mr. Ladner, you shall return a verdict for Mr. Ladner against K-Mart and assess damages. Defense instruction DB-18 provided: The Court instructs the jury that if you find that there were one or more signs warning of the condition of the floor upon which Plaintiff allegedly fell, but that Plaintiff ignored the warnings, and that the sole proximate cause of Plaintiff's damages, if any, was his failure to heed the warnings, then you shall return a verdict for both Defendants. Defense instruction D-19 provided: If you find that a dangerous condition existed but that adequate warnings were in place such that the premises were reasonably safe, then you must find for the Defendant. Ladner relies on Moore v. Winn-Dixie Stores, Inc. , 252 Miss. 693, 173 So. 2d 603 (Miss. 1965) to support his contention that instructions DB-18 and D-19 are incorrect statements of the law. Ladner interprets Moore to hold that a property owner owes an invitee the duty to keep its premises in a reasonably safe condition or to warn of any dangerous conditions not readily apparent which the owner knows or should have known of in the exercise of reasonable care. Most importantly, he interprets Moore also to impose on an owner a duty to conduct reasonable inspections to discover and correct dangerous conditions on the premises. The supreme court has consistently held that a business owner owes a duty to an invitee "to keep its premises in a reasonably safe condition and to warn of dangerous conditions which are not readily apparent to the invitee." Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996). However, the court has not held that an owner owes a duty independent of the general one to maintain safe premises that consists of conducting inspections of the premises. While conducting reasonable inspections supports an owner's obligation to keep the premises in a reasonably safe condition, the inspections, in and of themselves, are not an independent duty. The court's reference to an inspection duty in Moore has not been repeated in any case cited by the parties or that we have discovered. In paragraph 1 of instruction P-5-A the court properly submitted the central question in the casewhether the defendants kept the premises in a reasonably safe condition. Focusing on this question, we now examine the court's decision to grant instructions DB-18 and D-19. Ladner asserts that instructions DB-18 and D-19 should not have been granted because they are contradictory with each other and also with instruction P-5-A. He contends that the instructions apply the open and obvious defense that the supreme court has held is no longer an absolute bar to

recovery. Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994). Instructions DB-18 and D-19 were given to assist the jury in determining whether K-Mart or Like New breached their duty to Ladner. Under these instructions, the jury was to determine the following: (1) whether a dangerous condition existed; (2) if a dangerous condition existed, whether Like New and K-Mart provided adequate warning of the potential hazard such that the premises were reasonably safe; and (3) whether Ladner proceeded in the face of such warnings, so that he was the sole proximate cause of his damages. Instructions DB-18 and D-19 are correct statements of the law concerning premises liability. Contrary to Ladner's assertion, the instructions are not an application of the open and obvious defense. Instruction DB-18 informs the jury that if Ladner was the sole proximate cause of his own injuries, then it must find for K-Mart and Like New. That is certainly true. Ladner argues that if a defendant is as little as 1% negligent, it would be improper to exonerate him. Tharp, 641 So. 2d at 24. Conversely, this instruction states that if the plaintiff is 100% liable for the accident, then the jury must exonerate the defendants. D-19 directs the jury to find for K-Mart and Like New if the warnings made the premises reasonably safe. That instruction is a correct statement of the principle of premises liability and is in accord with the court's holding in Tharp. Moreover, the two defense instructions are not in conflict with instruction P-5-A. They highlight from the defense perspective aspects of P-5-A, but do not contradict any part of it. Ladner also contends that the trial court erred by inserting the term "adequate" as a qualifier for the warnings that the defendants were to give of a dangerous condition. However, Ladner failed to object to the term during trial. "Adequate" as an undefined term does not appear misleading or confusing. Regardless, whatever problems Ladner now argues the insertion of that word caused could have been dealt with by the trial court had the issue been raised at trial. The point cannot be raised for the first time on appeal. See Lewis v. Hiatt, 683 So. 2d 937, 944 (Miss. 1996). b. P-10 and P-15 Ladner next asserts that the trial court erred in modifying instructions P-10 and P-15 by adding the term "if any" to qualify negligence and damages. Ladner contends that there was unrefuted evidence presented during the trial that he suffered knee injuries as a result of his slip and fall in K-Mart. Jury instruction P-10 provided: It is not necessary that all twelve of you agree upon a verdict in this case. When any nine or more of your members have agreed upon a verdict, it may be returned in the Court as the verdict of the entire jury. Listed below are the parties to this lawsuit. You are to decide who, if anyone, was negligent and in what percentages. Then you must decide the total damages, if any, without regard to which party caused the damages, if any. Therefore, your verdict should be brought back in the following form: We, the jury, find the following persons guilty of negligence which proximately caused the

damages suffered by the plaintiff in the following percentages: K-Mart Corporation _______% Bruce Andrews d/b/a Like New Cleaning Service _______% Robert Angus Ladner _______% (The percentages you assess for these persons should together total 100%). Without regard to the fault assessed above, we further find Mr. Ladner's total actual damages in the amount of $_____________." Jury instruction P-15 provided: The Court instructs the jury that it is not necessary for you to determine whether the slippery substance on the floor, if any, came from the cleaning solution and/or water allegedly left behind on the floor by Bruce Andrews d/b/a Like New Cleaning Service or whether it came from leaking coolers of K-Mart Corporation in order for you to render a verdict for the plaintiff. Should you find that the negligence, if any, of both Bruce Andrews d/b/a Like New Cleaning Service and K-Mart Corporation contributed to the injury and damages, if any, suffered by Mr. Ladner, your verdict shall be for the plaintiff and you should access percentages of fault for each party found to be negligent in accordance with this Court's other instructions.

During the trial, the defense asserted that Ladner suffered from a pre-existing injury to his knee. The defense introduced medical records which revealed that Ladner suffered from gout and from some swelling of his knee. The defense also presented testimony and engaged in cross-examination to support its theory that Ladner staged the entire incident at K-Mart. No one witnessed the alleged incident. Although Ladner testified that he was on the floor for approximately five minutes after he fell, several witnesses testified that they did not see Ladner on the floor after the alleged incident. In fact, a witness who turned around immediately after hearing Ladner yell, observed him standing by a table. Another witness testified that Ladner's clothing did not appear to be wet, which it might have been expected to be had he fallen on water. Accordingly, we find that even if Ladner had a knee injury, the jury did not have to believe that he suffered it at this store. The defense presented sufficient evidence to draw into question the fact of a slip and fall. There was no error when the trial court modified the jury instructions. c. D-19-A, DB-6, and P-10 Ladner asserts that jury instructions D-19-A and DB-6 directly contradict instruction P-10 in regard to the form of the verdict. He contends that instructions D-19-A and DB-6 allowed the jury to return

a verdict which did not apportion fault, while instruction P-10 required the jury to determine the percentages of fault, if any, among the parties. Consequently, Ladner argues that the jury combined instructions D-19-A and DB-6 in formulating the verdict and ignored instruction P-10 because the jury did not allocate fault among the parties. Jury instruction D-19-A provided: The Court instructs the jury that if you find from a preponderance of the evidence that the Plaintiff is not entitled to recover any monetary damages from the Defendant K-Mart, then the form of your verdict may be as follows: "We, the Jury, find for the Defendant, K-Mart." Your verdict is to be written on a separate sheet of paper.

Jury instruction DB-6 provided: The Court instructs the jury that your verdict is to be written on a separate sheet of paper, and if your verdict be for Defendant, Bruce Andrews d/b/a Like New Cleaning Service, the form of your verdict should be as follows: "We, the jury, find for the Defendant Bruce Andrews d/b/a Like New Cleaning Service."

Reviewing instructions D-19-A, DB-6, and P-10 together as a whole, we find that while there may be a redundancy in the instructions, there is not an inconsistency. Instruction P-10 appears to be an adequate instruction. However, it is understandable that K-Mart and Like New would want instructions D-19-A and DB-6 submitted to the jury for clarity. The alternative instructions provided the jury with a way to express its conclusion that K-Mart or Like New were not negligent. Ladner as plaintiff was entitled to instructions that presented his theory of the case if supported by evidence. Similarly, the defendants had a right to have instructions submitted that highlighted their theory of the case if in the trial court's discretion they were supported by evidence, were useful and were not misleading nor confusing. That is what occurred here. Had the jury filled in P-10 consistent with its verdict that the jury expressed, it would have read as follows: K-Mart 0%, Bruce Andrews d/b/a Like New Cleaning Service 0%, and Robert Angus Ladner 100%. We will not imply an inconsistency in the jury actions when no evidence of one exists. The jury's decision was clear, which is the purpose of a verdict form. II. ADMISSION OF EVIDENCE a. Pharmacy Records

Ladner contends that K-Mart and Like New obtained his pharmacy records from Wal-Mart in violation of the rules of discovery. Ladner asserts that he never received any notice or acknowledgment that the records were subpoenaed from the pharmacy. Consequently, he argues that the trial court erred by allowing any testimony relating to the records. During cross-examination of Ladner, the defense counsel inquired into the possibility that Ladner suffered from depression prior to his alleged accident at K-Mart. The defense further questioned Ladner about his pre-accident treatment by a specific psychiatrist and his prescription for Prozac and Xanax. Ladner's counsel objected on the grounds that the testimony was not relevant. The trial court overruled Ladner's objection and allowed the testimony. We first address the relevancy of the cross-examination. Relevant evidence is any evidence having a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.E. 401. Although relevant evidence is generally admissible, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. M.R.E. 403. Evidentiary rulings are within the broad discretion of the trial judge and will not be reversed absent an abuse of discretion. Sumrall v. Mississippi Power Co., 693 So. 2d 359, 365 (Miss. 1997). Given the contours of Rules 401 and 403, this Court finds that there was no abuse of discretion. In the complaint, Ladner sought compensation for the depression he suffered as a result of the alleged accident. Ladner testified that he was in good mental health prior to the incident. The testimony elicited on cross-examination, however, established the possibility that K-Mart and Like New were not the proximate cause of Ladner's decline in mental health. Consequently, evidence that Ladner suffered from a pre-existing condition was relevant to the issue of causation and also to Ladner's credibility. See Boyd v. Smith, 390 So. 2d 994, 997-98 (Miss. 1980). Furthermore, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice. On appeal, Ladner also asserts that the cross-examination about his previous mental condition amounted to a trial by ambush. Ladner alleges that he had no knowledge that the defendants had procured pharmacy records and that their use violated his physician/patient privilege under Rule of Evidence 503. Defense counsels contend that a copy of the subpoena was served on Ladner and no objection was made nor privilege asserted. The issue of whether the defense notified Ladner about the subpoenaed pharmacy records presented a factual question for the trial judge. In denying Ladner's motion for a new trial, the trial court did not make any specific, on-the-record finding. However, since Ladner raised the notice issue in his motion, it was necessary for the trial court to resolve the over-all issue of these records in favor of KMart and Like New before denying the motion for a new trial. Consequently, in reviewing the propriety of the trial court's decision, we are required "to proceed on the assumption that the trial judge resolved all such fact issues in favor of the appellee." "We review these presumed findings under the clearly erroneous standard. . . ." Id. Our review of the trial court's admission of the testimony and denial of the motion for new trial in relation to the records leaves two possible conclusions. The first plausible explanation is that the trial court determined that notice of the subpoena was given to Ladner, but that Ladner misplaced the

notice or for other reasons failed timely to object to the release of the records. The other interpretation is that though Ladner may not have received prior notice of the subpoena, the defense was entitled to the discovery of the records anyway because Ladner's complaint sought compensation for his decline in mental health. By seeking such compensation, Ladner placed the condition of his mental health in issue, and thus, he waived any claim of physician/patient privilege on that issue. We can find no clear error in either possible conclusion. Ladner also objects to the defenses' failure to notify him of the intended use of the pharmacy records at trial. He contends that the defenses' failure to reveal the use of the records violated the rules of discovery. However, Ladner fails to direct this Court's attention to any specific interrogatory or request for production of documents in which he requested such information. Rather, Ladner makes a blanket assertion that the withholding of the pharmacy records by the defense amounted to a trial by ambush. A review of the interrogatories propounded by the parties and the requests for production of documents indicates, at most, three inquiries that might have necessitated the defense to respond by mentioning these records. First, Ladner's seventh request in his requests for production of documents solicited "All demonstrative evidence which you will seek to utilize at the trial of this case." Second, Ladner's eleventh request sought "Any and all medical reports, opinions and letters from physicians regarding medical condition(s) and treatment(s)." Last, interrogatory fourteen in Ladner's first set of interrogatories asked that defendants "Please state the factual basis for any defenses you are asserting against liability in this matter." Discovery is not a revival of ancient forms of pleading, to be interpreted by arcane and technical rules. M.R.C.P. 26. The ethical requirements of responding to discovery have recently been addressed. Mississippi Bar v. Land, 653 So. 2d 899, 906-909 (Miss. 1994). All civil rules are to be "construed to secure the just, speedy, and inexpensive determination of every action." M.R.C.P. 1. The drafters stated that "no provision in these rules [is] more important than this mandate. . . ." M.R.C.P. 1, cmt. In light of these directives, a party responding to an interrogatory or a request for production of documents must adhere to a good faith reading of any such request. A party should not read a discovery request so narrowly as to conceal information which is fairly requested. At the same time, a party is not obliged to read beyond what is actually requested and try to determine what the inquirer would have asked had all the facts been known. Applying these principles, we find that none of the requests by Ladner can fairly be interpreted to encompass with any degree of clarity or specificity the pharmacy records. K-Mart objected to the request for all demonstrative evidence that would be utilized at trial, stating that evidence to be used as impeachment would not be provided. These pharmacy records were used as impeachment. Like New objected on the basis that the request was overbroad. Ladner could have raised any disagreement with the defendants' positions in a motion to compel, but did not do so. Medical "reports, opinions and letters from physicians" would not encompass pharmacy records. K-Mart answered the interrogatory demanding the "factual basis for any defenses to liability" by stating that the burden of proof was upon the plaintiff to prove each allegation. The response then directed the plaintiff to the answer to the complaint and to the other discovery responses. Like New stated that if in fact the accident occurred as alleged, the signs adequately warned of any water. To

the extent Ladner would argue that "a defense to liability" for a slip and fall encompassed the argument that one of Ladner's alleged injuries from the fall was actually pre-existing depression, we find that was not a necessary reading of the request. A specific inquiry regarding evidence that some of Ladner's injuries were pre-existing would not have required an overly imaginative reading. Like New's response in terms of how the accident itself occurred seems the proper one to this inquiry. Thus, none of the discovery requests required submission or mention of the pharmacy records. b. Medical Records Ladner's next assignment of error is that the trial court improperly admitted his medical records into evidence. He contends that the medical records related to his prior treatment for gout in one of his toes and for follow-up treatment after a colonoscopy. Consequently, Ladner argues that the records were irrelevant, highly prejudicial, and confusing to the jury. 1. September Medical Records During the trial, Ladner testified that he was in top physical shape prior to the alleged accident. On cross-examination, the defense questioned Ladner about his medical history in the months preceding the incident. The defense also introduced medical records relating to Ladner's visit to the emergency room in September. The records stated that prior to the accident Ladner complained of severe pain in both of his feet, hot feet, and he was unable to walk upstairs. Ladner objected to the admission of the records asserting that he did not stipulate to their admission. He also objected to the admission of the records on the grounds of relevancy and hearsay. The trial court overruled Ladner's objection and admitted the records into evidence. Any party may attack the credibility of a witness. M.R.E. 607. However, specific instances of conduct of a witness that might undermine credibility, other than evidence of conviction of a crime, may not be proved by extrinsic evidence. M.R.E. 608(b). In Ball v. Sloan, 569 So. 2d 1177, 1179 (Miss. 1990), the supreme court held that under Rule 608(b) a party could not attack the credibility of a witness with extrinsic evidence of specific instances of conduct. Ball instituted a personal injury action against Sloan following an automobile accident. Id. at 1178. On cross-examination, the defense questioned Ball concerning the possibility that she altered prescriptions. Id. at 1179. After Ball denied the allegation, the defense called a pharmacist to testify that he had refused to fill the prescriptions. Id. In reversing the trial court's admission of the testimony, the supreme court concluded that the only possible relevance of the altered prescriptions related to Ball's credibility, and therefore, the extrinsic evidence was inadmissible. Id. The court noted that cross-examination on the alteration should have ended after Ball denied the allegation. Id. Although a witness may not be impeached using extrinsic evidence of misconduct under Rule 608(b), there have developed discrete categories of impeachment under Rule 607 that are relevant here. One is that "a witness may be contradicted as to a part of his testimony where as a matter of human experience he would not be mistaken if the thrust of his testimony were true." John W. Strong, McCormick on Evidence

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