McNeely v. Wal-Mart Stores Inc.

The trial court usurped the jury's function in determining witness credibility in granting summary judgment to defendant based on the testimony of a witness who was impeached with a prior felony conviction and false testimony.

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Lestine L. McNeely and William P. McNeely sued Wal-Mart Stores, Inc. for the slip and fall of Mrs. McNeely on April 26, 1997 in its Cornelia store just outside of the McDonald’s located therein. Mrs. McNeely fell in a pool of clear liquid. Wal-Mart performed safety sweeps two to four times per day where the employee checks the area where he or she worked; however, no such sweep had been performed within a reasonable time to inspect prior to the fall, giving rise to a jury issue as to constructive notice.

The key to Wal-Mart’s defense was an off-day employee eye-witness, whose testimony was impeached by a prior felony conviction and by disproving the facts to which he testified. The employee, Stephen Hightower, who was not working that day, testified by affidavit and by deposition that he was in the store as a customer, was sitting in the McDonald’s, saw the plaintiff fall, and saw water on the floor, eight to twelve inches in circumference. He testified that when he entered the area 5-10 minutes earlier there had been no liquid on the floor. However, Hightower had been convicted in 1970 of possession of a controlled substance and in 1966 of felony breaking and entering in Orlando, Florida and served a year in prison. He testified under oath that the breaking and entering charge had been thrown out when in fact he pled guilty to the charge to serve five years on probation. After reporting what he saw to the Wal-Mart loss control after the fall, he later asked for a promotion and received it along with a 40 cent per hour pay raise. Based upon Hightower’s testimony, the trial court granted summary judgment to Wal-Mart. We reverse, because determination of interest and of the weight and credibility of a witness’ testimony and whether the witness has been impeached is uniquely for jury determination as triers of the facts.

McNeely v. Wal-Mart Stores Inc.

The trial court usurped the jury's function in determining witness credibility in granting summary judgment to defendant based on the testimony of a witness who was impeached with a prior felony conviction and false testimony.

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