F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 28 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WYHILLA PENDERGRAFT,

                Plaintiff-Appellee,

    v.                                                   No. 99-7084
                                                   (D.C. No. 98-CIV-597-S)
    WAL-MART STORES, INC,                                (E.D. Okla.)
    a foreign corporation,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant-appellee Wal-Mart Stores, Inc. appeals a $50,000 judgment

entered in favor of plaintiff following a jury verdict. Plaintiff slipped and fell

while shopping at Wal-Mart, injuring her knee. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

       The basic facts are not in dispute. Plaintiff testified that she entered

the store and walked to the back to pick up the item she had come to buy.

See Appellant’s App. at 159. On her way back to the front of the store, she

slipped on a piece of honeydew melon rind and fell to the floor,      see 

       Wal-Mart’s assistant manger, Jimmy Canant, testified that he responded to

a call and found plaintiff on the floor.     See 

He stated that on the day

of the fall Wal-Mart was distributing free samples of honeydew melons.         See 

The samples were contained in a stand with a dome, allowing

customers to reach in and serve themselves; the rinds had not been removed from

the melon samples.     See 

of setting out samples was to increase

sales. See 

There was a garbage can next to the melon display for

customers to deposit the rinds.     See 

       Gary Roberts, the store’s produce manager, testified that produce samples

significantly increase sales of that item.     See 

had personally

witnessed various produce samples on the floor in the months prior to plaintiff’s




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injury and had picked them up.     See 

It had not occurred to him, even

after seeing samples end up on the floor, to remove the rinds.     See 

       The only issue before us is the propriety of the instruction on an owner’s

duty to an invitee to maintain the premises. Wal-Mart requested the following

instruction:

       It is the duty of the owner to use ordinary care to keep its premises in
       a reasonably safe condition for the use of its invitees. It is the duty
       of the owner either to remove or warn the invitee of any hidden
       danger on the premises that the owner either actually knows about, or
       that it should know about in the exercise of reasonable care, or that
       was created by it or any of its employees who were acting within the
       scope of their employment. This duty extends to all portions of the
       premises to which an invitee may reasonably be expected to go.

       The instruction given by the court, however, added the following:

       However, when a business owner’s operating methods are such that
       dangerous conditions, such as spills by patrons, are recurring or easy
       to anticipate, the invitee need not also prove notice on the part of the
       business owner of the specific condition created in order to prove
       the business owner breached its duty of ordinary care owed to the
       invitee.

       The instruction given was based on     Lingerfelt v. Winn-Dixie Tex., Inc.    ,

(Okla. 1982). In     Lingerfelt , also a slip and fall case, the Oklahoma

Supreme Court held that when an invitor creates a foreseeable, unreasonable risk,

either by direct action of an employee or by his own indirect carelessness or


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negligence, the invitor is liable for the consequences, and the shopper does not

need to prove notice of the specific condition created.    

       Defendant argues on appeal that the facts of this case do not demonstrate

that the distribution of melon samples either “created ‘a condition from which

an injury might have been anticipated’” or “‘rendered the avoidance of injury

impossible.’” Appellant’s Br. at 11-12 (quoting      Lingerfelt , 645 P.2d at 488).   1



Defendant contends that in    Lingerfelt , the store’s employees knew that displaying

strawberries in an uncovered manner could result in a customer accident.          See

Appellant’s Br. at 13. Here, defendant argues, there was no evidence that

defendant’s manner of distributing produce samples was inherently dangerous.

See 

on testimony of Mr. Canant that in the ten years he

had worked at defendant’s store, he did not know of another incident in which

a customer had fallen on free samples.      See Appellant’s App. at 131. However,

Mr. Roberts, the produce manager, testified that in the mere seven months prior

to the accident, he had personally witnessed samples on the floor, anything from

apples to oranges, honeydews, cantaloupe, watermelon, and carrots.          See 

Lingerfelt , the store had created a display of strawberries which were
heaped in uncovered containers because the store’s cellophane wrapping machine
was broken. The plaintiff suffered injuries when she slipped on strawberries
which had fallen on the floor from an unknown 

.

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at 148-49. He and other employees had picked rinds up off the floor.        See 

He also stated that it was possible to remove the rinds, but that process

would have taken more employee time.         See 

       Thus, plaintiff demonstrated circumstances creating the reasonable

probability that a dangerous condition (here, spilled rinds or peels from produce

samples) would occur and therefore did not need to “‘also prove that the business

proprietor had notice of the specific hazard [the honeydew rind] in order to show

the proprietor breached his duty of care to the invitee.’”    Cobb v. Skaggs Cos. ,

, 76 (Okla. Ct. App. 1982) (quoting       Lingerfelt , 645 P.2d at 488).

“Oklahoma has imposed a higher standard of care on self-service retailers,

because merchandising methods involving unassisted customer selection create

problems with dropped or spilled merchandise and necessarily create dangerous

conditions.” Hall v. Wal-Mart Stores, Inc. , No. 96-6109, 

,

at **2 (10th Cir. Sept. 26, 1997) (unpublished decision) (relying on      Cobb

and Lingerfelt ) (footnote omitted); see also Powell v. Wal-Mart Stores, Inc.     ,

No. 94-6442, 

, at **3 (10th Cir. Sept. 14, 1995) (unpublished

decision) (noting that in   Lingerfelt , the Oklahoma Supreme Court “abolished

the notice requirement in slip and fall actions against self-service retailers”).

This case is indistinguishable from     Lingerfelt . Accordingly, the district court

did not err in giving the challenged instruction.


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The judgment of district court is   AFFIRMED .



                                            Entered for the Court



                                            Mary Beck Briscoe
                                            Circuit Judge




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