Angela Hancock v. Wal-Mart Stores East

Filing

Opinion issued by court as to Appellant Angela Hancock. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-16068

Date Filed: 08/22/2012

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16068
Non-Argument Calendar
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D.C. Docket No. 3:10-cv-00295-MMH-TEM

ANGELA HANCOCK,
Plaintiff - Appellant,
versus
WAL-MART STORES EAST, L.P.,
a foreign corporation,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 22, 2012)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

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Date Filed: 08/22/2012

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Angela Hancock appeals the judgment entered in favor of Wal-Mart Stores
East, L.P., and against her complaint of negligence following a jury trial. Hancock
was injured in a Wal-Mart store in Jacksonville, Florida, when three bags of beach
toys fell from a display shelf and struck her head, shoulder, and back. Hancock
filed in a Florida court a complaint that the negligence of Wal-Mart proximately
caused her injuries, and Wal-Mart removed the complaint to the district court
based on diversity of citizenship. 28 U.S.C. § 1332. Hancock argues that the
district court erred by not instructing the jury about the doctrine of res ipsa
loquitur. We affirm.
Hancock and Wal-Mart each blamed the other for Hancock’s injuries.
Hancock argued that Wal-Mart created a dangerous condition in its store when an
employee stacked the bags on the top shelf incorrectly. Hancock testified that she
and her four-year-old daughter were walking down the center of an aisle that
displayed seasonal merchandise when, “out of nowhere,” three bags fell from the
top display shelf. Hancock testified that she did not use a shopping cart inside the
store, bump into the shelving unit, or touch the bags. Hancock introduced
testimony to suggest that an assistant manager, Angel Wilhelm, stacked the bags
incorrectly about 30 minutes before Hancock’s injury and that Wilhelm tried to
cover up her misdoing. Wal-Mart argued that Hancock caused her injury.
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Wilhelm and another assistant manager who responded to the incident, James
Brown, testified that Hancock had a shopping cart at the scene of the incident.
Wilhelm also testified that, during her investigation of the incident, Hancock said
“her cart hit the shelf and the items jumped off and hit her in the face.”
Hancock requested an instruction about res ipsa loquitur to inform the jury
that it could infer that Wal-Mart acted negligently in the absence of direct
evidence to explain how Hancock’s injury occurred. See McDougald v. Perry,
716 So. 2d 783, 785 (Fla. 1998). The district court denied her request, and the
jury ruled in favor of Wal-Mart.
Florida law governs the application of the doctrine of res ipsa loquitur, but
we “apply federal law to test the sufficiency of the evidence to justify [a] res ipsa
loquitur charge.” Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 740 (5th Cir.
1980). Kicklighter instructs that a plaintiff is entitled to a jury instruction about
the doctrine only “if the evidence affords a rational basis upon which the jury can
conclude that the elements of the doctrine required under state substantive law are
present.” Id. In Florida, the plaintiff must establish three elements to apply the
doctrine of res ipsa loquitur: 1) “‘direct proof of negligence is wanting’”; 2) the
instrumentality that caused the injury was under the exclusive control of the
defendant; and, 3) the injury “‘would not, in the ordinary course of events, have
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occurred, without negligence on the part of’” the defendant. McDougald, 716 So.
2d at 785 (quoting Marrero v. Goldsmith, 486 So. 2d 530, 531 (Fla. 1986)).
The district court did not err when denied Hancock’s request for a jury
instruction about res ipsa loquitur. The Supreme Court of Florida has held that “it
is incumbent upon the plaintiff to present his or her case in a manner which
demonstrates and satisfies each of the doctrine’s requisite elements and only after
the plaintiff carries this burden of proof may a court supply the inference.” City of
New Smyrna Beach Utilities Comm’n v. McWhorter, 418 So. 2d 261, 262 (Fla.
1982) (discussing Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.
2d 1339 (Fla. 1978)). The record establishes that Hancock failed to satisfy even
the first element of the doctrine.
Hancock failed to establish that direct proof of negligence was wanting.
Hancock instead introduced evidence that an employee of Wal-Mart, Wilhelm,
stacked the bags of beach toys incorrectly. See Monforti v. K-Mart, Inc., 690 So.
2d 631, 633 (Fla. Dist. Ct. App. 1997) (affirming the denial of a jury instruction on
res ipsa loquitur when plaintiff introduced expert testimony that “alluded to
specific acts of negligence including K-Mart’s use of a display shelf incapable of
supporting the weight of the merchandise on display”). Wilhelm testified that,
approximately 30 minutes before the incident, she had reconfigured the bags and
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had stacked them “three high and two high” on different shelves. Hancock elicited
testimony from the store manager, Gentle Raines, that Wal-Mart had policies that
required its employees to display merchandise in a “straight and stable manner”;
avoid placing merchandise “where it could fall on a customer”; “not overload
shelves with merchandise”; and perform a “bump test” after stacking merchandise
on shelves to ensure it did not “slide or teeter.” Although Wilhelm testified that
she conducted a “bump test” after she reconfigured the bags, she acknowledged
that she never recorded testing the bags; she investigated the incident; and she
would have been disciplined had she failed to perform the test. And Hancock
testified that, as soon as Brown arrived at the scene, he looked at the top shelf,
asked “who stacked these baskets this high,” and removed the baskets from the
shelf. Hancock “introduce[d] enough direct evidence of negligence to dispel the
need for the inference” that an instruction about res ipsa loquitur would otherwise
supply. Marrero, 486 So. 2d at 532.
We AFFIRM the judgment in favor of Wal-Mart.

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