                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   October 25, 2004 Session

              BETTY L. HAMPTON v. WAL-MART STORES, INC.

                       Appeal from the Circuit Court for Loudon County
                         No. 6901    Russell E. Simmons, Jr., Judge



                No. E2004-00401-COA-R3-CV - FILED NOVEMBER 5, 2004


This is a premises liability case wherein the plaintiff alleges that she was injured when she slipped
and fell on spilled baby food while shopping at the defendant's store. After trial of the case before
a jury, the trial court granted the defendant's motion for a directed verdict and dismissed the case
upon grounds that the plaintiff failed to present proof that the defendant had notice of an
unreasonably dangerous condition. We affirm the judgment of the trial court and remand.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Cause
                                       Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR . and D.
MICHAEL SWINEY , JJ., joined.

James Lee Milligan, Jr. and Michael S. Shipwash, Knoxville, Tennessee, for the Appellant, Betty
L. Hampton.

Charles G. Taylor, III, Knoxville, Tennessee, for the Appellee, Wal-Mart Stores, Inc.

                                             OPINION

        This is a action for personal injury in which plaintiff/appellant, Betty L. Hampton, alleges
that she slipped and fell on baby food which had spilled from a broken jar onto the floor of the store
of defendant/appellee, Wal-Mart Stores, Inc.(hereinafter "Wal-Mart"). In her complaint Ms.
Hampton specifically alleges, inter alia, the following:

                4. That on or about September 23, 2001, the plaintiff Betty Lowe Hampton
         was at Wal-Mart, for the purpose of purchasing food.

                5. That while the plaintiff was walking through Wal-Mart towards the
         check out, plaintiff stepped on a broken jar of baby food, causing plaintiff to
         tumble to the floor. That there were no signs and/or any type of warning posted
         on or around said broken jar indicating that there was a safety hazard.

                 6. That the defendant knew or should have known that said broken jar was
         a harmful safety hazard therefore had actual and/or constructive notice of such
         hazard.

                 7. The plaintiff would aver that as a direct and proximate result of the
         negligence and/or gross negligence of the defendant Wal-Mart Stores, Inc. in not
         maintaining the aforementioned premises in a safe and suitable condition for
         which they were intended, in not posting signs or other types of warnings as to
         possible dangerous conditions existing in the broken jar on the floor and failing
         to make reasonable inspections for said safety hazards, the plaintiff has suffered
         serious injuries to her lower back. Plaintiff has incurred the associated costs and
         expenses in the treatment of her injuries. Plaintiff has endured and shall continue
         to endure much pain and suffering for the remainder of her life.

      Based upon these allegations the complaint demands that Ms. Hampton be awarded a
judgment against Wal-Mart for damages in the amount of $74,000.00 and prejudgment interest.

        Ms. Hampton's case was subsequently tried before a jury. Ms. Hampton testified on behalf
of herself and called no other witnesses. At the close of the Plaintiff’s proof, Wal-Mart made an oral
motion for a directed verdict upon grounds that the Plaintiff had failed to present proof that Wal-
Mart created the condition which allegedly caused her injury or that the condition had been of
sufficient duration to present Wal-Mart with notice of its existence. The trial court entered its
judgment granting this motion and dismissing Ms. Hampton's case with full prejudice. Thereafter,
Ms. Hampton filed the instant appeal.

        The sole issue we address is whether the trial court erred in granting a directed verdict in this
case.

        In Spann v. Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999) we recognized the well-
settled standard appropriate to the review of a motion for directed verdict:

         [O]ur task is to review the record to determine whether [the plaintiff’s] evidence
         was sufficient to create an issue for the jury to decide. In conducting this review,
         we do not weigh the evidence or evaluate the credibility of the witnesses. Rather,
         we review the evidence most favorably to the party opposing the motion, give that
         party the benefit of all reasonable inferences from the evidence, and also disregard
         all evidence contrary to that party’s position.

                Directed verdicts are appropriate only when reasonable minds can reach
         one conclusion. A case should go to the jury, even if the facts are undisputed,


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         when reasonable persons could draw conflicting conclusions from the facts.
         These conclusions, however, must be based on more than speculation, conjecture,
         and guesswork. A trial court may direct a verdict where the plaintiff’s evidence
         fails to establish a prima facie case.

         (Citations omitted.)

       In Jones v. Zayre, 600 S.W.3d 730, 732 (Tenn. Ct. App. 1980) we noted the following
prerequisites to holding a business owner liable for an injury sustained on its premises:

                 Before an owner or operator of premises can be held liable for negligence
         in allowing a dangerous or defective condition to exist on its premises, it must
         have (1) been created by the owner or operator or his agent or, (2) if the condition
         was created by someone other that the owner or operator or his agent, there must
         be actual or constructive notice on the part of the owner or operator that the
         condition existed prior to the accident.

                 If liability is to be predicated on constructive knowledge by the Defendant,
         the proof must show the dangerous or defective condition existed for such length
         of time that the Defendant knew, or in the exercise of ordinary care should have
         known of its existence.


        Ms. Hampton presented no direct proof that Wal-Mart had actual notice of the dangerous
condition alleged and does not contend otherwise. We are compelled to the conclusion that she also
failed to present circumstantial evidence which would allow a jury to decide if the substance which
allegedly caused Ms. Hampton to fall had been on the floor “for such length of time that [Wal-Mart]
knew, or in the exercise of ordinary care should have known of its existence.”

        In support of her argument that the trial court erred in granting the motion for a directed
verdict, Ms. Hampton first references her testimony at trial that, immediately after she fell, she
observed the approach of a man with a mop:

         Q After the fall but prior to the manager coming did any other employees come
         up to you?

         A There was an older gentleman that came from this direction over here that had
         a mop in his hand. He was an older gentleman, thin, had thin hair on top is all I
         can remember.

         Q And this was right after you fell he came with a mop?

         A Yes.


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        Ms. Hampton indicates that this testimony constitutes circumstantial evidence from which
“the jury could infer that someone reported the spill and this gentleman was on his [way] to clean
it up.”

        This testimony is certainly not sufficient to establish that the baby food on the floor had been
there so long that Wal-Mart knew, or should have known, of its existence prior to the time of Ms.
Hampton’s fall. A jury could not determine from this testimony whether the employee with the mop
was aware of the spilled baby food prior to Ms. Hampton’s fall or whether he only learned of its
existence after Ms. Hampton fell. Any conclusion a jury might reach based upon this evidence
would necessarily be based on “speculation, guesswork and conjecture.”

         In further support of her argument that the trial court erred in its grant of a directed verdict,
Ms. Hampton references her additional testimony regarding the appearance of the spilled baby food
at the time of her fall. Apparently the testimony to which Ms. Hampton refers in this regard was as
follows:

         Q And once you were up did you ever figure out what you slipped on?

         A Yeah, it was baby food. It looked like apple sauce, ground up apple sauce. It
         was in the floor and it had splattered all the way across the aisle and had skimmed
         over. It was dry on top and the thicker parts were still wet on the bottom.

        Ms. Hampton’s apparent contention is that this testimony that the baby food “had skimmed
over” constitutes circumstantial evidence from which the jury could reasonably infer that the baby
food had been on the floor long enough for Wal-Mart to have constructive notice of its existence
prior to her fall. Again, it is our determination that a jury considering this evidence could do no
more than guess, conjecture or speculate as to its import with respect to the question of the extent
of time the baby food had been on the floor. Ms. Hampton presented no evidence regarding how
long it would have taken the baby food to assume a “skimmed over” appearance and under cross
examination Ms. Hampton admitted that she herself does not know how long it takes baby food to
skim over.

      For the foregoing reasons, the judgment of the trial court is affirmed and the cause is
remanded for further action consistent with this opinion. Costs of appeal are adjudged against Betty
L. Hampton and her surety.



                                                _____________________________________
                                                SHARON G. LEE, JUDGE




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