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08/25/95 KATHLEEN MCCOMBS v. BRUNO'S

August 25, 1995

KATHLEEN MCCOMBS
v.
BRUNO'S, INC.



Appeal from Cullman Circuit Court. (CV-92-177). Fred C. Folsom, TRIAL JUDGE.

Almon, Justice. Kennedy, Ingram, and Butts, JJ., concur. Houston, J., concurs in the result.

The opinion of the court was delivered by: Almon

ALMON, JUSTICE.

Kathleen McCombs appeals from a judgment based on a directed verdict in her negligence action against Bruno's, Inc., d/b/a Fresh Value Foods. The issue is whether the circuit court correctly held that McCombs had failed to present substantial evidence that Bruno's had knowledge of the alleged defective condition of its floor.

McCombs injured her left knee when she fell on April 21, 1990, in the defendant's Fresh Value Foods store in Cullman. McCombs alleged that she slipped and fell in a spot of "PineSol," a cleaning solution, that she says had spilled on the floor.

McCombs claims that Fresh Value employees were aware of the liquid on the floor and neglected to use due care in removing the liquid. The injury occurred when McCombs, while shopping with her children, stepped into the liquid with her right foot. Her foot slipped forward, and she landed on her left knee. She testified that while she was lying on the floor she heard persons standing behind her make statements regarding the length of time the substance had been on the floor. McCombs asserts that these statements were made by employees, and she argues that the statements show that the employees had notice of the spill before she fell.

McCombs testified as follows:

"Q. Okay. Did you have any knowledge of how long the substance had been on the floor at the time you fell?

"A. I have no idea how long it was on there. All I remember is people in the background talking about it being on the floor for 15 minutes or more.

"Q. Now then, as you were there did any store employees come up while you were on the floor?

"A. Well, while I was on the floor I didn't -being in such pain, I didn't really see anybody's face, because you know, in such great pain you are not really paying attention to faces of people. But you can hear people talking in the background, and there were people around talking.

"Q. Did you hear any store employees there at Fresh Value say anything?

A. Yeah. They were talking about the liquid being on the floor and that it was told before for it to be cleaned up. And they couldn't understand why they hadn't had somebody out there already to have cleaned it up."

McCombs says she never actually saw the people she says made these statements, and she admitted on cross-examination that she could not testify with certainty that the people who made the statements were actually employees. Instead, she contends that the jury could infer that they were employees, based on the content of the statements regarding the substance on the floor. While McCombs never saw the persons who made the alleged statements ...


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