# Cowan v. Ellison Enterprises, Inc. > Court of Appeals of Arkansas · November 16, 2005 · 93 Ark. App. 135 URL: https://www.frixlaw.com/law-library/cases/9642747 ## Case - **Full name:** Ingrid COWAN v. ELLISON ENTERPRISES, INC. D/B/A Price Chopper - **Court:** Court of Appeals of Arkansas - **Decided:** November 16, 2005 - **Citations:** 93 Ark. App. 135; 217 S.W.3d 175 - **Precedential status:** Published - **Opinion:** Dissent by Roaf - **Judges:** Wendell L. Griffen - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642747 ## How later opinions describe it (automated extraction) - affirming summary judgment where plaintiff “never presented facts showing that the grape upon which she slipped fell to the floor as a result of [the allegedly negligent] conditions” ## Opinion text Andree Layton Roaf, Judge, dissenting. I do not agree udge, affirmed, and would reverse and remand for trial. Ingrid Cowan was injured when she slipped and fell on. a grape while shopping at Price Chopper. Cowan has alleged that Price Chopper was negligent in that there were no safety mats in the aisle where she fell; that the floor was so dingy, dark, and dirty that the fallen grapes would not be easily seen on the floor; that the counter where the grapes were displayed was sloping and dangerous; and that the open-mesh plastic bags in which the grapes were bagged for sale were inherently dangerous. What she has not alleged is that Price Chopper either put the grape on the floor itself or that it was there for such a length of time that Price Chopper should have removed it. A trial court should grant a motion for summary judgment only when there are no genuine issues of fact to litigate and when it can decide the case as a matter of law. Carver v. Allstate Ins. Co., 77 Ark. App. 296 , 76 S.W.3d 901 (2002). Once the movant has made a prima facie showing of entitlement to summary judgment, the responding party must, in order to preclude summary judgment, demonstrate that there remain genuine issues of material fact. Id. This court’s review is limited to a determination as to whether the trial court was correct in finding that no material facts were disputed. Id. To prevail in a typical slip-and-fall case involving an invitee, the plaintiff must show either that: (1) the presence of a substance upon the premises was the result of defendant’s negligence or (2) 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. Kopriva v. Burnett-Croom-Lincoln-Paden, LLC, 70 Ark. App. 131 , 15 S.W.3d 361 (2000). This case falls closer to the former category. Additionally, this court has recognized that not all such cases fall into the “typical” category, and these cases should be analyzed differently. Where the slippery condition is not the result of an isolated incident but is instead a recurring one, the traditional slip-and-fall analysis is inapplicable and the question is simply whether the business owner used ordinary care to keep his premises free from dangerous conditions likely to cause injury to invitees. Brookshires Grocery Co. v. Pierce, 71 Ark. App. 203 , 29 S.W.3d 742 (2000) (citing Conagra, Inc. v. Strother, 68 Ark. App. 120 , 5 S.W.3d 69 (1999)); Heigh v. Miller, 332 Ark. 315 , 965 S.W.2d 116 (1998). The court also applied this standard-of-care in another atypical slip-and-fall case where the plaintiff slipped and fell in an area known to be dangerous, where safety mats had been placed throughout the area, and where the plaintiff testified that the safety mats were not in place when she fell. Conagra, supra. Also, where the plaintiff did not argue that her fall was caused simply by the presence of a substance on the floor but rather by the floor’s overly slippery condition resulting from the faulty manner in which the wax was applied, this court applied this same standard of care because it was not the typical slip-and-fall case. Kopriva, supra. In Pierce, supra, Pierce slipped on some grapes near the produce area at Brookshires and was injured. There was evidence that Pierce had noticed tomatoes, lettuce, onions, cauliflower, grapes, and other such items on the floor in the produce section on prior shopping trips. Id. There was also evidence that, on the day he was injured, Pierce drew the produce clerk’s attention to two separate spills, but the produce clerk appeared unconcerned and told Pierce he would clean them up later. Id. In addition, there was evidence that store management was aware that the produce section was a particularly dangerous area for falls and that management did not adhere to its own schedule for inspection of the floors. Id. This court noted that this case was different than the typical slip-and-fall case, because this case involved a recurring slippery condition. Id. Brookshires argued the trial court should have granted its motion for directed verdict because there was no substantial evidence to show that the grapes were on the floor because of Brookshires’s negligence or that the grapes were on the floor so long that they should have been discovered by Brook-shires’s employees. Id. This court disagreed and applied a different standard: whether there was sufficient evidence to support a jury finding that there was a recurrent slippery condition in Brook-shires and whether Brookshires employed ordinary care to keep its premises free from that condition. Id. This court held that the evidence supported the finding that there was a recurrent slippery condition as the result of Brookshires’s failure to exercise ordinary care. Id. The present case is similar to both Pierce and Kopriva. In both Pierce and this case, the plaintiff slipped and fell on some grapes. Pierce involved a recurrent slippery condition, and the present case involves the allegation of a “recurrent” dangerous/slippery condition of grapes on the floor because of the manner in which they were packaged and displayed. Here, just as in Pierce, there are claims that others had noticed the dangerous condition of the floor on previous occasions. Because this case is not the “typical” slip-and-fall case it should be analyzed under the standard that this court used in Pierce: whether Price Chopper used ordinary care to keep its premises free from dangerous conditions likely to cause injury to invitees. In Kopriva, it was the manner in which the floor was rendered slippery that was.ultimately at issue. Price Chopper argues that the present case is unlike Pierce because here there is no evidence that Price Chopper was on notice of a foreign substance on the floor and no proof of a dilatory employee failing to conduct inspections or clean up messes. Even though there are differences between Pierce and the present case, it does not change the fact that this case is not the typical slip-and-fall case and that therefore this court should use a different standard of care than what it usually uses to analyze the typical slip-and-fall cases. This is because Cowan’s contention is that grapes were on the floor as a result of Price Chopper’s negligence in the manner in which the grapes were packaged and displayed, regardless of whether it was a customer or a store employee who dropped the grape to the floor, or whether the grape had rolled off the sloped display. Cowan does not need to prove precisely who dropped the grape or that Price Chopper failed to timely clean up its floor under this theory. The majority makes much of the fact that Cowan cannot say exactly how the one particular grape she slipped on came to be on the floor. However, it is not that one or even more grapes happened to be on the floor or the day in question that is the key allegation, but rather that Price Chopper’s negligence made it likely and, in fact, inevitable that grapes would be on the floor. Even if this court applies a different standard of care, Cowan must still demonstrate that there are genuine issues of material fact to be litigated so that she can overcome summary judgment in this case. There is a dispute as to whether there was a safety mat in place at the time of Cowan’s fall. There are also the disputed issues concerning how the grapes were displayed and the fact they were packaged in loosely woven cellophane bags. What is not in dispute, because it is not at issue under Cowan’s theory of negligence, is either how long the grape had been on the floor, who dropped it there, or the frequency of Price Chopper’s inspections. A jury should be able to decide whether the actions by Price Chopper of which Cowan complains of in this case were negligent, not the case imagined by the majority. I would reverse. Robbins, Neal, and Baker, JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642747. Public record. Not legal advice.