{
  "id": 1916820,
  "name": "Barabara MACOM and Harold Macom v. WAL-MART STORES, INC.",
  "name_abbreviation": "Macom v. Wal-Mart Stores, Inc.",
  "decision_date": "1991-05-28",
  "docket_number": "91-69",
  "first_page": "544",
  "last_page": "548",
  "citations": [
    {
      "type": "official",
      "cite": "305 Ark. 544"
    },
    {
      "type": "parallel",
      "cite": "809 S.W.2d 819"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "290 Ark. 186",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1873710
      ],
      "weight": 3,
      "year": 1986,
      "opinion_index": 0,
      "case_paths": [
        "/ark/290/0186-01"
      ]
    },
    {
      "cite": "294 Ark. 182",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1895788
      ],
      "weight": 2,
      "year": 1987,
      "opinion_index": 0,
      "case_paths": [
        "/ark/294/0182-01"
      ]
    }
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    "simhash": "1:6c6bbaa7992c359a",
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  "last_updated": "2023-07-14T19:53:54.224345+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Dudley, J., not participating."
    ],
    "parties": [
      "Barabara MACOM and Harold Macom v. WAL-MART STORES, INC."
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nThis is a slip and fall case in which appellant apparently sustained injuries from falling on a red ink pen located in an aisle in an appellee\u2019s store in Jonesboro. A jury verdict was returned in appellee\u2019s favor, and appellant appeals raising one point for reversal, viz., the trial court erred in excluding certain testimony proffered by appellant\u2019s witness, Marvin Russell, as rebuttal evidence. We hold the trial court ruled correctly, and therefore affirm.\nSome nine months after her fall and in preparation for trial against appellee, appellant hired Russell, an investigator, to place a styrofoam cup on the appellee\u2019s store floor at the approximate place where the appellant had fallen. Russell\u2019s proffered testimony at trial reflects that his purpose in placing the cup was to determine whether or not the janitor regularly cleaned that area of the store. He took pictures of the cup\u2019s placement and returned the next day to find the cup had been kicked or somehow relocated to a nearby spot under a pant\u2019s rack. Russell again took pictures of the cup, as relocated, for the apparent purpose of testifying at trial.\nTo prevail in her slip and fall case, the appellant must show that appellee violated its duty to use ordinary care to maintain the premises in a reasonably safe condition by proving either that the presence of the ball point pen upon the floor was the result of appellee\u2019s negligence or that the ball point pen had been on the floor for such a length of time that appellee knew or should have reasonably known of its presence and failed to use ordinary care to remove it. See AMI Civil 3d 1105; Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987).\nIn appellant\u2019s case-in-chief, she testified that, immediately prior to her fall, two of appellee\u2019s employees had been looking for something on the store floor as she approached to ask them where the boys\u2019 blue jeans were located. While looking at the jeans, she slipped and fell. After her fall, an ink pen was discovered near her feet. During appellee\u2019s case, the two employees denied that either of them had been looking for a pen, as was suggested by appellant\u2019s testimony. However, one of the two employees (as did the store manager) testified that, under appellee\u2019s cleanup policy, all employees who saw anything on a store\u2019s floor were to \u201cpick it up and put it in its proper place.\u201d The manager added that appellee\u2019s policy is to keep a reasonably safe place for its customers and employees are instructed that, if they see anything on the floor, they are to pick it up.\nIn appellant\u2019s cross-examination of appellee\u2019s store manager, counsel specifically asked about appellee\u2019s cleaning policy and the manager responded that a night cleanup man swept the floor five nights a week, and its stockmen swept the floor the other two nights. Counsel asked if these employees picked up \u201ccups, pencils, wrappers and things like that,\u201d to which the manager said, \u201cYes, sir, anything that\u2019s on the floor, they\u2019re to clean up.\u201d Counsel further inquired if the cleanup policy related by the manager was in effect on the day appellant fell and the manager said, \u201cYes, sir.\u201d\nAt the end of appellee\u2019s case, appellant offered Russell\u2019s testimony for the expressed purpose of showing appellee\u2019s employees and store manager were lying when they said that the store was cleaned up every night. The trial court\u2019s ruling to exclude such testimony was correct for many reasons.\nFirst, the trial court determined that Russell\u2019s proffered testimony was not relevant. We agree. Russell\u2019s attempt to reconstruct a similar situation nine months after the appellant fell failed to show the appellee\u2019s cleanup employees had not swept the floor on the night prior to appellant\u2019s fall. All Russell\u2019s reconstructed event showed was that he had found the cup in a different spot from where he had placed it the night before. Such testimony in no way showed that appellee\u2019s employees had lied in relating appellee\u2019s nightly cleanup policy. Nor did Russell\u2019s testimony show that the store had not been swept on the night before the appellant\u2019s fall.\nSecond, while subsequent similar events testimony may be admissible to impeach the testimonies given by appellee\u2019s employees concerning the events occurring and surrounding appellant\u2019s fall, we have held the burden of proving the necessary similarity of conditions rests on the party offering the evidence. See Fraser v. Harp\u2019s Food Stores, Inc., 290 Ark. 186, 718 S.W.2d 92 (1986). The burden of proving the necessary similarity of conditions rests on the party offering the evidence, and the trial court is given wide discretion in determining whether this burden has been met. Id.\nHere, Russell\u2019s attempt to show a similar or reconstructive event to the one existent of the night before and day of appellant\u2019s fall again misses the mark of relevancy. Russell\u2019s testimony showed he used a cup, not a pen, in his failed attempt to reconstruct conditions as they existed on the day appellant fell. Obviously, a pen presents a smaller and more perceptible or potential danger than does a styrofoam cup. Furthermore, Russell did not specify which night of the week or which cleanup personnel, stock clerk or regular janitorial staff, had been assigned to sweeping duties on the respective nights and days of the two separate events. While other factors exist to show the dissimilarity between the two events, we believe these stated distinctions sufficiently reflect appellant\u2019s failure to meet her burden.\nFinally, even if appellant had shown that Russell\u2019s proffered testimony was relevant rebuttal evidence, such testimony added nothing to what appellant had already elicited upon her cross-examination of appellee\u2019s witnesses. For example, one employee, who testified appellee\u2019s policy was to sweep the floors each night, indicated she sometimes might enter the store the day following the night it was swept and find pencils, cups or candy wrappers on the floor. Another employee admitted that a cup could have been left on the store floor from the prior night\u2019s cleaning, and she might not have known of it. In view of such candid and revealing admissions by appellee\u2019s employees, Russell\u2019s proffered testimony had little or no added probative value. In other words, his testimony only confirmed or was cumulative to these employees\u2019 stories that cups, pencils or other items could have been on the appellee\u2019s store floor without their knowledge even though the store had been cleaned the night before. Thus, while we believe the trial court properly ruled Russell\u2019s proffered testimony was not relevant or proper rebuttal evidence, we fail to see how appellant could have been prejudiced by its exclusion since such testimony was merely cumulative to that evidence appellant had already elicited through appellee\u2019s witnesses.\nFor the reasons given above, we affirm the lower court\u2019s decision.\nDudley, J., not participating.",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Henry, Walden, Davis & Halsey, by: Troy Henry, for appellants.",
      "Barrett, Wheatley, Smith & Deacon, by: David W. Cahoon, for appellee."
    ],
    "corrections": "",
    "head_matter": "Barabara MACOM and Harold Macom v. WAL-MART STORES, INC.\n91-69\n809 S.W.2d 819\nSupreme Court of Arkansas\nOpinion delivered May 28, 1991.\nHenry, Walden, Davis & Halsey, by: Troy Henry, for appellants.\nBarrett, Wheatley, Smith & Deacon, by: David W. Cahoon, for appellee."
  },
  "file_name": "0544-01",
  "first_page_order": 574,
  "last_page_order": 578
}