NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA00-1367

SEPTEMBER 5, 2001

EDWARD RAY HARTSFIELD

and JOETTE HARTSFIELD AN APPEAL FROM THE JEFFERSON

APPELLANTS COUNTY CIRCUIT COURT [CIV99-106-1]

v.

WAL-MART STORES, INC. HON. BERLIN C. JONES,

APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellants Edward and Joette Hartsfield appeal the grant of summary judgment in favor of the appellee, Wal-Mart Stores, Inc. Appellants argue that the grant of summary judgment was in error because a material fact exists as to whether appellee's employee breached his duty to inspect the aisle for safety hazards. We conclude that there was no issue of fact to be determined and that the grant of summary judgment was not in error. Therefore, we affirm.

Edward Hartsfield and his wife, Joette, were shopping at a Wal-Mart located in Pine Bluff. While shopping in the store's archery section, an employee walked up the aislewhere the appellants were talking with a third customer. The employee asked if they needed any assistance. When the appellants declined, the employee proceeded back down the aisle. Shortly thereafter, Mrs. Hartsfield left for another part of the store. As Mr. Hartsfield proceeded up the aisle, he tripped on a dumbbell in the aisle and fell.

Mr. and Mrs. Hartsfield filed suit against Wal-Mart alleging that Wal-Mart negligently caused and permitted the dumbbells to be stacked in an unsafe and negligent manner, resulting in a dumbbell falling to the floor, and that Wal-Mart negligently allowed the dumbbell to remain on the floor. They also alleged that Wal-Mart had actual and constructive notice that the dumbbell was in the aisle prior to the accident.

Wal-Mart filed a motion for summary judgment relying on excerpts from the depositions of Mr. and Mrs. Hartsfield, Ralph Faulkner, and the exhibits to the deposition of Ralph Faulkner. Wal-Mart argued there was no evidence that the dumbbell was on the floor as a result of Wal-Mart's negligence or that the dumbbell remained on the floor a sufficient amount of time as to give Wal-Mart actual or constructive notice of its presence. The Hartsfields responded to the motion for summary judgment by asserting that the issue of whether Wal-Mart used ordinary care to maintain the premises in a reasonably safe condition is a jury question; therefore, the court needed all the facts before deciding a motion for summary judgment. The Hartsfields also alleged that there were issues of fact for a jury to decide regarding Wal-Mart's negligence in both the display of the dumbbells and failure to use care to keep the aisle clear. The trial court granted Wal-Mart's motion for summary judgment, finding as follows: (1) the Hartsfields failed to prove that the presence of thedumbbell on Wal-Mart's floor resulted from the negligence of Wal-Mart and/or its agents; (2) the Hartsfields failed to prove the dumbbell had been on Wal-Mart's floor a significant length of time as to give Wal-Mart actual or constructive notice of its presence there and failed to exercise ordinary care in removing it from the floor; (3) the Hartsfields failed to prove that a Wal-Mart's employee or employees had knowledge that the dumbbell was on the floor and negligently failed to remove it; (4) the Hartsfields failed to prove that the dumbbells were negligently stacked; and (5) the Hartsfields failed to prove that Wal-Mart breached its duty to maintain the premises in a reasonably safe condition or that Wal-Mart's agents were negligent in their failure to detect the dumbbell on the floor, or in the manner of stacking the dumbbells.

On appeal, the Hartsfields argue that the trial court erred in granting Wal-Mart's motion for summary judgment because a material fact existed as to whether Wal-Mart's employee breached his duty to inspect the aisle for safety hazards, and therefore the issue of Wal-Mart's negligence must be submitted to a jury.

Standard of Review

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Tackett v. Merchant's Security Patrol, 73 Ark. App. 358, 44 S.W.3d 349 (2001). Once the moving party has established a prima facie entitlement to summaryjudgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Elam, supra. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Elam, supra. On appellate review, this court determines if summary judgment was appropriate based upon whether the evidence presented by the moving party in support of the motion leaves a material fact unanswered. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). The evidence is viewed in a light favorable to the non-moving party. Id. All doubts and inferences are resolved against the moving party. Id.

Duty

Appellants argue on appeal that Wal-Mart had a duty to inspect the premises for safety hazards. The appellants were business invitees. The law is well settled that a property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. House v. Wal-Mart Stores, Inc. 316 Ark. 221, 872 S.W.2d 52.(1994); Martin v. Hearn Spurlock, Inc., 73 Ark. App. 276, 43 S.W.3d 166 (2001); Conagra, Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999);

Breach of Duty

Slip and fall cases generally occur in public places that occupy a great deal of space, and involve isolated incidents where anything could have been spilled or placed on the floor by anyone at anytime without the owners knowledge. Heigle v. Miller, 332 Ark. 315, 965S.W.2d 116 (1998). In order to prevail in a slip and fall case involving an invitee, the plaintiff must show either (1) that the presence of a substance upon the premises was the result of the defendant's negligence or (2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Martin v. Hearn Spurlock, Inc., 73 Ark. App. 276, 43 S.W.3d 166 (2001). The fact that an employee was in the vicinity of the accident before it occurred is not sufficient to sustain the plaintiff's burden. Wal-Mart Stores, Inc. v. Bernard, 69 Ark. App. 238, 10 S.W.3d 915 (2000).

The case at bar is a typical slip and fall case. Appellant, Edward Hartsfield, fell at a Wal-Mart by tripping over a dumbbell that was in the aisle. Under the first part of the standard, appellants argue that because Wal-Mart's employee was instructed to zone the aisle and failed to notice the dumbbell in the floor, Wal-Mart breached the duty of care, therefore establishing Wal-Mart's negligence. We disagree with appellants' argument. There was no evidence that the employee was zoning when he walked down the aisle. Furthermore, our supreme court has stated that the fact an employee was in the area is not sufficient to raise an inference of negligence. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994). The appellants also failed to present any evidence establishing how the dumbbell happened to be in the aisle.

The length of time the substance is on the floor is a key factor. House, supra. The plaintiff has the burden of showing there was a substantial interval between the time the substance was placed on the floor and the time of the accident. Fred's Stores v. Brooks, 66Ark. App. 38, 987 S.W.2d 287 (1999). Here, the appellants failed to present any evidence as to how long the dumbbell had been in the aisle prior to Mr. Hartsfield's accident.

Because the appellants failed to present any evidence that established that the dumbbell was on the floor due to Wal-Mart's negligence or how long the dumbbell was on the floor, we hold that there was no genuine issue of material fact to litigate. Viewing the evidence in the light most favorable to the appellants we conclude that appellants failed to make a prima facie showing that appellee 1) negligently caused the dumbbell to be in the aisle or 2) that the dumbbell had been in the aisle for such a length of time that appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it.

Accordingly, we affirm.

Stroud, C.J., and Griffen, J., agree.