ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

CA03-660

December 10, 2003

FLASH MARKET, INC. AN APPEAL FROM SALINE COUNTY

APPELLANT CIRCUIT COURT

[CIV 01-375-2]

v.

HONORABLE GRISHAM A. PHILLIPS,

PETE KARCZMARCZYK CIRCUIT JUDGE

APPELLEE

AFFIRMED

Robert J. Gladwin, Judge

This case arises out of an injury that appellee Pete Karczmarczyk sustained while on the premises of appellant Flash Market's Citgo truck stop in West Memphis on October 11, 1999. Appellee sued in tort to recover damages, alleging that he slipped and slid into an open drain; that appellant was negligent in allowing the drain to be open and uncovered; and that, as a result, he sustained injuries. Appellant answered and denied the allegations. At the close of a two-day trial, the jury found appellant negligent and returned a $232,700 verdict in appellee's favor. Appellant raises four points on appeal. We affirm.

Appellee, a truck driver, testified that he pulled into appellant's West Memphis truck stop on October 11, 1999, and parked his truck at the fuel island near an open drain grate because that was the only place to park. He stated that he noticed that part of a drain grate was missing and that the ground was wet with either oil or diesel fuel. He testified that he slipped and fellinto the open grate when he stepped out of his truck. Appellee testified that he was "a couple of feet" from the grate when he started to slip. He reported the fall to the store manager and took photographs before he left. Appellee testified that, after he delivered his load and returned to the truck stop some three hours after the slip, he talked with Chris Farrell, the station manager, about his concern that the grate was still missing and that Farrell was angry because the grate had not been replaced. Appellee admitted that he saw the open grate before his fall and also stated that there was nothing for him to have tripped over. Appellee stated that he noticed that the ground was slick and wet, that truck stops are constantly wet, and that one has to be on guard as to one's surroundings. Appellee also stated that Farrell told him that the grate became missing over the weekend.

Chris Farrell, manager of the truck stop at the time of the accident, testified that the store's maintenance personnel monitor the lot for diesel spills, put absorbent on any spill, sweep it up, and then wash the spill off. He also testified that the lot was pressure washed once or twice a day. He said that patrons could cross the grate to enter the store or enter via another route. Farrell admitted that he did not know how long the spill had been on the ground; that he did not know how the grate became removed or when it was repaired; and that the grate could have been missing for hours or days. He also stated that he would expect maintenance personnel to find and clean up such a spill within three hours.

On appeal, appellant argues that the trial court erred in denying its motion for a directed verdict; that the trial court committed error in not instructing the jury on allegations of negligence both in the circumstances of the slippery substance and of the missing grate; that the trial court erred in giving the jury an instruction containing the bracketed portion of AMI Civ. 4th 1104; and that the trial court erred in admitting evidence of subsequent remedial measures.

As its first argument, appellant states that the trial court erred in not granting its motions for a directed verdict. Appellant divides its argument into two parts: the first deals with appellant's contention that the trial court should have treated this as a foreign-substance case and the second deals with the open-grate claim. Our courts have repeatedly held that a directed-verdict motion is a challenge to the sufficiency of the evidence, and, when reviewing a denial of a motion for a directed verdict, we determine whether the jury's verdict is supported by substantial evidence. Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001); Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001). We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Fayetteville Diagnostic Clinic, supra. Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id. It is not this court's province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Id.; City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).

Appellant argues that this is a slip-and-fall case while appellee argues that this is a defective-condition-of-premises case. As the supreme court has said:

[A] "cause of action" is the operative facts which give rise to a "right of action" or the remedial right affording redress. Thus, there may be several rights of action arising out of a cause of action. A single cause of action may give rise to more than one theory upon which recovery may be had.

McQuay v. Guntharp, 331 Ark. 466, 475, 963 S.W.2d 583, 587 (1998) (citations omitted). Premises-liability theories are applicable to conditions that pose danger to those entering upon the premises of another. Such theories have no applicability when the proprietor is alleged to have injured the plaintiff through negligence such as permitting a foreign substance to remain on the ground that causes the plaintiff to slip and fall. A defendant has no control over which of possibly several applicable legal theories a plaintiff may choose to invoke in a lawsuit against him. A defendant is thus entitled to rely on the theory pleaded by plaintiff to frame the issues to be tried. The rule is that a complaint must separately state each claim, and within each claim, it must identify alternative theories of recovery as separate counts. Ark. R. Civ. P. 8(a), (e)(2). Generally, a trial court has no authority to render a decision on an issue not framed by the pleadings. See Navas v. City of Springfield, 122 Or. App. 196, 201, 857 P.2d 867 (1993). Arkansas Rule of Civil Procedure 15(b) provides a limited exception to this rule: if the parties expressly or impliedly consent, they may try issues not raised in the pleadings. Here, the trial court, when ruling on appellant's motion for a directed verdict at the close of appellee's case, noted that appellee did not think that he was making a foreign-substance claim but that it was a jury question. The trial court also indicated that the foreign-substance rule did not apply when the substance is located where the landowner expects invitees to walk. In this regard, we believe that the trial court was making it clear that this was a defective-condition case. Appellee did not allege that appellant was negligent for the foreign substance, nor did appellee move to amend the pleadings to conform to the proof. The trial court did not expressly rule that it was amending the pleadings to conform to the proof. See Brooks v. Town & Country Mut. Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987). Further, this court will not imply consent to conform the pleadings to the proof merely because evidence relevant to a properly pled issue incidentally tends to establish an unpled one. Heartland Cmty. Bank v. Holt, 68 Ark. App. 30, 3 S.W.3d 694 (1999). Under these circumstances, the only theory before the jury was the defective-premises claim. As such, it would be a nullity to move for a directed verdict on a nonexistent theory, and we affirm on this point.

The duty of care that appellant owes to its invitees, such as appellee, is stated as follows in Restatement (Second) of Torts, § 343 (1965):

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The basis for a premises owner's liability under this rule is the superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Jenkins v. Hestand's Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). There is an exception to this general rule, which states that a "possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts, § 343A(1) (1965).

Arkansas cases have also recognized the general duty that a premises owner owes to an invitee and the exception to this duty where the dangerous condition is either known or obvious to the invitee. See, e.g., Jenkins v. Hestand's Grocery, supra; Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974); Ramsey v. American Auto. Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962). These rules are the basis of AMI 1104, which states that the premises owner owes a duty to an invitee to use ordinary care to maintain the premises in a reasonably safe condition. No such duty exists, however, if the condition of the premises that creates the danger was known by or obvious to the invitee, unless the premises owner should reasonably anticipate that the invitee would be exposed to the danger despite his knowledge of it or its obvious nature. Van DeVeer v. George's Flowers, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003). Van DeVeer held that it was a jury question as to whether the dangerous condition was open and obvious, as was the question of whether the invitee should reasonably have been anticipated to encounter the dangerous condition. Appellant argues that appellee was not required to encounter the open grate because there was another route to the store. However, AMI 1104 only requires that the landowner "reasonably anticipate" that the invitee would be exposed to the dangerous condition despite the invitee's knowledge of the condition. Here, appellee testified that he parked his truck at the fuel island near the open grate because that was the only place to park. Thus, it was reasonable for appellant to anticipate that appellee or others would be exposed to the open grate.

We affirm the denial of the directed verdict on the defective-premises claim.

For its second and third points on appeal, appellant argues that the trial court erred in instructing the jury. Appellant's second point is that the trial court erred in not instructing the jury on both the slip-and-fall theory and the open-grate premises-liability theory. Appellant's third point is that the trial court erred in giving the bracketed portion of AMI 4th 1104.

A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993). Jury instructions stating abstract legal propositions without any evidentiary basis should not be given. St. Louis S.W. Ry. Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995). Only where reasonable minds will not differ that the evidence does not establish a basis for a jury instruction is it error for the trial court to give the instruction. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

Appellant's second point is that the trial court erred in not instructing the jury on both the foreign-substance theory and defective-premises theory. As noted above, appellee contends that this is a defective-premises case caused by a combination of conditions - the slippery substance and the open grate. The trial court instructed the jury on only the defective-premises theory. Our courts have held that instructions are properly refused where the pleadings did not raise the issue covered by the requested instructions. Shibley v. White, 193 Ark. 1048, 104 S.W.2d461 (1937); Dominion Textile Co. v. Beck, 188 Ark. 1090, 69 S.W.2d 862 (1934); Arkansas Fertilizer Co. v. Banks, 95 Ark. 86, 128 S.W. 566 (1910); Ward v. Russell, 32 Ark. App. 86, 796 S.W.2d 588 (1990). As noted under appellant's first point, the slip-and-fall negligence theory was not before the trial court. We affirm the trial court's refusal to instruct the jury on that theory.

Appellant's third point is that the trial court erred in giving the bracketed portion of AMI 1104. The bracketed portion of AMI 1104 provides that the open-and-obvious rule does not apply where the landowner should reasonably anticipate that an invitee would be exposed to the dangerous condition. As stated above, a party is entitled to an instruction when there is evidence to support that instruction. Here, appellee testified that he got out of his truck, started to take a step, and slipped. Appellee testified that he was "a couple of feet" from the grate when he started to slip. Although appellant argues that Chris Farrell testified that patrons could have used another route to reach the store, this court views the evidence in the light most favorable to appellee, Fayetteville Diagnostic Clinic, supra, and, as such, the jury could find from appellee's testimony that he was too close and could not avoid the open grate. See Van DeVeer, supra. We affirm on this point.

In appellant's fourth point on appeal, it argues that the trial court should have excluded evidence of appellant's subsequent repairs to the drain grate. Prior to trial, appellant filed a motion in limine seeking to prohibit appellee from introducing evidence of the condition of the grate some three hours after the accident. The trial court denied the motion. At trial, appellee testified that, after he delivered his load and returned to the truck stop, he talked with Chris Farrell about the grate still being open on appellee's return to the station and that Farrell was angry because the grate had not been replaced. Appellant renewed its objection at trial. Appellant argues that this testimony should have been excluded because it is evidence of "subsequent remedial measures," which is inadmissible pursuant to Rule 407 of the Rules of Evidence.

On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Nor will we reverse a trial court's ruling on evidentiary matters absent a showing of prejudice. Id.

Rule 407 provides:

Whenever, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Ark. R. Evid. 407.

An example of improper evidence showing a subsequent remedial measure may be found in Carton v. Missouri Pac. R. R., 315 Ark. 5, 865 S.W.2d 635 (1993). In that case, the appellant argued that the trial court should have admitted certain pictures. The pictures showed that, after the appellant was injured by falling on oil-soaked gravel, the appellee replaced the gravel with clean gravel. The supreme court held that the pictures were evidence that the appellee had taken subsequent remedial measures and affirmed the trial court's exclusion of the evidence. Id; see also Lawhorn v. Ayres Corp., 67 Ark. App. 66, 992 S.W.2d 162 (1999).

We do not believe that the testimony indicates that any "remedial measures" were taken by appellant. Specifically, the testimony does not describe measures which, had appellant taken previously, would have made an event less likely to occur; rather, it shows that there was concern that the grate was not promptly repaired and replaced. See Columbia Nat'l Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002). The fact that the grate was open was already before the jury through appellee's testimony as being the cause of the accident.

Affirmed.

Stroud, C.J., and Baker, J., agree.