Jeffrey A. Miller of Cleveland For Appellants.

Alan B. Easterly and David W. Noblit of Chattanooga For Appellee.

Houston M. Goddard, Judge, Clifford E. Sanders, P.J. (e.s.), Samuel L. Lewis, J., concur.

Houston M. Goddard, Judge

In this slip and fall case, Linda and Kenneth Stone, Plaintiffs-Appellants, appeal the Trial Court's decision to direct a verdict in favor of K-Mart, Inc., Defendant-Appellee, at the close of the Plaintiffs' proof. For the reasons that follow, we affirm the Court below.

On May 14, 1988, Linda Stone entered the K-Mart store in Cleveland, Tennessee, with some relatives. After entering the store and going to the ladies' apparel section where her daughter tried on some dresses, Mrs. Stone proceeded back to the main aisle in an attempt to locate her sister. At this point, Mrs. Stone took her two-and-a-half year-old niece out of a shopping cart and began carrying her on her left side. While walking, her right leg slipped out from under her causing her to fall on the right knee. At the time of the fall, she was wearing flip-flops. The fall occurred approximately 12 feet from a service desk near a camera counter.

After Mrs. Stone's daughter helped her to her feet, they noticed that her right pants leg was wet from the knee down to the cuff and also that a clear liquid was on the floor covering approximately two tiles. After drying her pants with a blow dryer in the ladies' rest room, Mrs. Stone reported the accident to an assistant manager at the front desk who filled out an accident report form.

As a result of the slip and fall, Mrs. Stone sustained a bruised knee, pain in her neck, shortness of breath, headaches, and burning sensations down her arm. Her treating chiropractor, Keith Mills, believes that the injury to her neck ("loss of curve") is permanent.

At the close of the Plaintiffs' proof, the Trial Judge directed a verdict in K-Mart's favor stating that if the issues were to be submitted to the jury, any verdict in favor of the Plaintiffs could only be based on pure speculation because there was no proof as to the nature of the substance on the floor or how long it had been there.

In considering a motion for a directed verdict, trial and appellate Judges are required to take the strongest legitimate view of the evidence in favor of the non-moving party, allow all reasonable inferences in his favor, discard all countervailing evidence and deny the motion where there is any doubt as to the Conclusions to be drawn from the whole evidence. Crosslin v. Alsup, 594 S.W.2d 379 (Tenn.1980). Directing a verdict is proper only when the proof is such that reasonable minds could draw only one Conclusion favorable to the moving party. Town of Smyrna v. Ridley, 730 S.W.2d 318 (Tenn.1987); Gann v. International Harvester Co. of Canada, 712 S.W.2d 100 (Tenn.1986). Stated differently, the motion must be denied unless there is no material evidence that would support a verdict for the non-moving party. TSC Industries, Inc. v. Tomlin, 743 S.W.2d 169 (Tenn. App.1987).

The law governing the present facts was well stated in Moon v. SCOA Industries, Inc., 764 S.W.2d 550, 552-53 (Tenn. App.1988):

The well recognized law in cases involving injuries on business premises is that the proprietor of a retail establishment has a legal obligation to exercise ordinary care and diligence to maintain the premises in a reasonably safe condition for his patrons and is liable only if injury results from breach of the duty to exercise reasonable and ordinary care for their safety and protection. Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. App.1973); Gargaro v. Kroger Grocery & Baking Co., 22 Tenn. App. 70, 74, 118 S.W.2d 561, 653 (1938).

Before an owner or operator of a business can be held liable for negligence in allowing a dangerous or defective condition to exist on its premises, that condition (1) must have been created by the owner or operator or its agent or (2) if the condition was created by someone other than the owner or operator or its agent, there must have been actual or constructive notice on the part of the owner or operator that the condition existed prior to the accident. Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. App.1980).

The Plaintiffs conceded at oral argument that the record was devoid of any evidence that K-Mart knew what the liquid was on the floor or how long that it had been there. Be that as it may, it is argued by the Plaintiffs that the Trial Court erred in directing a verdict against them because a juror could reasonably infer negligence on the part of K-Mart because: (1) the accident form was not fully completed; (2) store employees should have seen the liquid because of its proximity to where they were stationed; (3) a cleaning crew could have left the liquid from the previous night.

It is certainly true that there is no direct evidence presented as to what the substance was on the floor, how long it had been there, or how it had gotten there. There was no debris, such as empty or broken containers, near the liquid to indicate that something may have been spilled or placed on the floor. Mrs. Stone testified that the liquid was clear, odorless, and colorless. The import of all of this is that it has not been shown that K-Mart knew or should have known by the exercise of ordinary diligence that there was a dangerous or defective condition on the premises. The inferences pointed out by the Plaintiff upon which a jury could infer negligence, even if taken as true for purposes of a directed verdict, simply do not rise beyond the level of pure speculation. We realize that to withstand a motion for a directed verdict a plaintiff need not meet the burden of preponderance of the evidence, but by the same token there must be some material evidence beyond speculation or guess work.

The Plaintiffs place much reliance on Moon v. SCOA Industries, supra. In that slip and fall case it was held that the facts were properly submitted to the jury even though no direct proof was presented as to what the substance was that caused the fall or how long it had been there. Acknowledging a "very close" case, the Court held that employees of the defendant should have seen the spilled substance on the floor in view of its proximity to certain work stations. Unlike the present case, there was direct evidence that employees were actually present close to where the fall occurred. Here, there was testimony by the store's assistant manager that employees are usually on duty at the camera counter but nothing to indicate that employees were actually present. The only employee known to have been in the area was at the service desk, but even from there the spot were the fall took place was visible only from the extreme corner of the work station.

In view of the foregoing, we hold that the Trial Court correctly directed a verdict in favor of K-Mart. Costs of appeal are adJudged against the Stones and the case remanded for any proceedings that may be necessary.