AMI 1106 Duty Owed to Admitted Invitee—Foreign Object or Substance

Use “the” banana peel, “the” unidentified object, etc., when the fact of its presence is admitted; otherwise use “a” banana peel, “an” unidentified object, etc.

This instruction is based on the rule as recited in numerous Arkansas cases, including, for example, Walmart Stores, Inc. v. Regions Bank Trust Dept., 347 Ark. 826, 832, 69 S.W.3d 20, 23–24 (2002) (collecting cases).

The previous version of this instruction is cited with approval in Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 184, 741 S.W.2d 270, 271 (1987), and in Willis v. Crestpark of Wynne, Inc. (Intermediate), 279 Ark. 456, 457, 652 S.W.2d 625, 625 (1983). Changes to the 2013 Edition are both to conform the instruction to the rule as stated in the cases and for the sake of clarity.

The previous version of this instruction was cited as authority for the elements of proof in Conagra, Inc. v. Strother, 340 Ark. 672, 677, 13 S.W.3d 150, 153 (2000), and in Cowan v. Ellison Enterprises, Inc., 93 Ark. App. 135, 143, 217 S.W.3d 175, 180 (2005). The rules of law are stated in House v. Wal–Mart Stores, Inc., 316 Ark. 221, 223, 872 S.W.2d 52, 53 (1994), and Brunt v. Food 4 Less, Inc., 318 Ark. 427, 430, 885 S.W.2d 894, 896 (1994) (summary judgment affirmed where plaintiff made no contention that substance had been on floor for such a length of time that defendant should have known of its presence).

It is not necessary that the foreign object be specifically identified. Akridge v. Park Bowling Ctr., Inc., 240 Ark. 538, 539–40 401 S.W.2d 204, 205 (1966) (plaintiff can make a prima facie showing without proving the nature of the foreign object that caused the slip and fall).

Res ipsa loquitur is not applicable to slip and fall cases. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 15, 708 S.W.2d 623, 624 (1986); Miller v. F. W. Woolworth Co., 238 Ark. 709, 712, 384 S.W.2d 947, 949 (1964) (court affirmed defendant’s verdict stating that negligence is never presumed, but must be proved by the party alleging it).

“Without some proof (1) that the presence of the [foreign] substance on the premises was the result of [the defendant's] negligence, or (2) that [the defendant] knew or should have known of its presence due to the length of time it was there, there is no basis for slip and fall liability.” Jenkins v. Int'l Paper Co., 318 Ark. 663, 672, 887 S.W.2d 300, 304 (1994).

Absent actual knowledge of the presence of the foreign substance on the part of the owner or occupier of the premises, the burden is on the plaintiff to establish the substantial interval between the time the substance appeared on the floor and the time of the injury. House, 316 Ark. at 224, 872 S.W.2d at 53; Wal–Mart Stores, Inc., 347 Ark. at 832, 69 S.W.3d at 24 (plaintiff must prove that defendant was negligent by allowing the substance to remain on the floor for a substantial length of time).