Vinyard v. Vinyard Funeral Home, Inc.

CLEMENS, Commissioner.

Plaintiff got a verdict and $13,000 judgment for injuries from a fall on defendant's parking lot. (Plaintiff was the daughter-in-law of the corporate defendant's president.) Defendant appeals, challenging the sufficiency of plaintiff's evidence, the form of her verdict-directing instruction, and the admission of evidence about other patrons slipping on the parking lot.

Defendant contends the evidence failed to show that its premises were unsafe and, even so, that the condition was undiscoverable by plaintiff. We recite the verdict-consistent evidence.

In short, one rainy night plaintiff slipped and fell when she stepped from a roughly paved surface onto a smoothly paved surface of a ramp in defendant's dimly lighted parking lot. The defendant knew the smoothly paved area was slippery when wet. In more detail we recite the evidence about the parking lot, the paving, plaintiff's fall, and defendant's knowledge of danger.

The plaintiff fell after she had parked her car and was walking up a ramp toward the defendant's funeral home. Its parking lot is flanked by the president's residence on the south and by the funeral home on the north. The ground slopes upward from south to north, toward the funeral home. The parking lot is on two levels, connected by paved ramps at the front and the rear. The lower level adjoins the residence and the upper level adjoins the funeral home. ...

Defendant's prior knowledge that the sealed surface was dangerously slick when wet was shown in three ways: observations by defendant's officers and employees, remedial actions taken by them, and notice received through other patrons' complaints of slickness.

As soon as the clear sealer was applied on the lot's upper level, the defendant's officers and employees noticed the surface was slick when it rained. They discussed the condition numerous times; they spoke to paving contractors about 'roughing it up' but did nothing except spread sand on the smooth paving when it rained. (This, however, was not done on the night plaintiff fell.) This sanding followed complaints by patrons about the slickness. These complaints began right after the sealer was applied and came from several persons.

Without objection, plaintiff showed that three years after her fall the defendant resealed the upper level with the same liquid compound. But this time the defendant mixed the liquid sealer with an equal amount of sand. This mixing followed the manufacturer's recommendation for use where the user wants a 'non-slip protective surface.' . . .

Defendant's Point III concerns the admission of evidence that people complained to its officers and employees that the sealed surface was slippery when wet. Plaintiff offered this evidence to show that defendant knew its parking lot was slippery when wet. Witness Keith Vinyard was defendant's vice-president and plaintiff's husband. Testifying for plaintiff he was asked: 'Now, Keith, after this sealer was put on did you receive any complaints from anyone visiting the funeral home?' Over defense objection that the question was hearsay unless limited to the same conditions as plaintiff's fall, the witness answered: 'Yes, several people said it was slick.' Later, witness Leroy Lucas, one of defendant's regular employees, was asked: 'Did you yourself hear complaints of people that would come in and complain about it being slick when it was wet?' Over the defendant's hearsay objection Mr. Lucas answered: 'I had heard different people comment on it that it was slick when it was wet.'

These questions and answers were improper as hearsay if offered only to prove the fact that the sealed area was slock. But aside from the fact of slickness there was the issue of defendant's knowledge of slickness. Evidence of complaints of slickness made to defendant was relevant to the material issue of defendant's knowledge. As said in Miller v. Brunson Const. Co., . . . : 'Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.'

To support its claim of erroneous admission of this testimony about complaints of slickness, the defendant cites Blackwell v. J. J. Newberry Co., Mo.App., . . . There the issue was not about complaints but about the admissibility of evidence about the absence of other accidents. Commenting on the obverse--the occurrence of other accidents--the court acknowledged their relevancy but pointed out a limitation referred to by Wigmore as 'Confusion of Issues': the unrestricted admission of such instances might result in so multiplying the subordinate issues in a cause that confusion of mind would ensue and the main controversy would be lost sight of in the great mass of minor issues.' We have no such confusion here. The defendant's own witnesses later testified that the parking lot was slock when wet, and that the sealed upper area was slocker than the unsealed lower area. But to make her case the plaintiff was obliged to show that defendant's officers knew about the slickness. Under the circumstances of this case the trial court properly admitted evidence that this knowledge had come to them through complaints of patrons that the parking lot's sealed area was slock when wet. . . .

The defendant's last point challenges the admission of testimony by plaintiff's witness Martha Siebert about a fall she had on the parking lot. This, on the limited ground that her fall 'did not occur under the same conditions nor at the same place as the one involving the plaintiff here.' Before admitting Mrs. Siebert's testimony, the trial court ruled it would admit testimony of other falls if a foundation was laid showing 'it is a wet condition and that the fall was on the so-called slick area of the driveway.' The trial court overruled defendant's further objection demanding a broader foundation: that it should also show the same conditions and place as the plaintiff's fall.

Mrs. Siebert testified that during the same winter as plaintiff's fall she, too, had fallen on the sealed area of the parking lot. As said, there were two ramps leading up from the lower level of the lot. Plaintiff fell on the west ramp; Mrs. Siebert on the east ramp. She testified that on a rainy day she parked her car right on top of the ramp. As she got out of her car she turned around, slipped and fell.

To support its claim of error the defendant quotes Blackwell v. J. J. Newberry . . . where we ruled that evidence of other accidents 'is admissible only where the party against whom the evidence is introduced is not, by the nature of the proof offered, deprived of an opportunity of developing, by cross-examination or otherwise, substantially all the circumstances under which such previous accidents happened.' That statement hardly helps defendant here since it had full opportunity to and did cross-examine Mrs. Siebert. The Newberry case tersely states the rule of admissibility: "The true solution of the conflicting considerations, then, is that evidence of the sort, when relevant, should be admitted, unless in the discretion of the trial Court it seems to involve a serious inconvenience by way of unfair surprise or confusion of issues. Such is the solution clearly pointed out by many Courts." Thus, the trial court has discretion to determine whether the offered testimony has any net probative value and, if so, to admit the testimony and let the jury assess its weight.

Here, the east and west ramps were substantially similar. Each was built and paved with the same material at the same time. Each was treated simultaneously with the same sealing compound. At the times of plaintiff's and Mrs. Seibert's falls, each was wet. Considering defendant's opportunity to cross-examine Mrs. Seibert and to develop any existing dissimilarities between the conditions surrounding the two falls, we cannot say the trial court erred in admitting Mrs. Seibert's testimony. That ruling was within the limitations stated in the Newberry case. Further, it was in accord with Cameron v. Small, Mo. . . . where the court said: 'From the testimony of the witnesses it appears that others who slipped were caused so to do by the wet, slippery inclined surface of the ramp; the ramp was in such condition, it seems from the evidence, when the plaintiff sustained her injury. In view of the testimony of the smooth condition of the surface of the ramp 'in the middle where the traffic would be,' we cannot follow defendants' argument that, in order for the testimony to be admissible, it was necessary to make a showing that all of the persons, including plaintiff, slipped at precisely the same place on the ramp's surface.'

No point preserved for review having shown material error affecting the outcome below, the judgment must be affirmed.

PER CURIAM:
The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.