Watts v. Great Atlantic and Pacific Tea Co., Inc.

• Decision Date: 15 April 1988
• Docket Number: No. 87-8441,87-8441
• Parties: Clayton M. WATTS, Plaintiff-Appellant, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 307

842 F.2d 307

Clayton M. WATTS, Plaintiff-Appellant, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Defendant-Appellee.

No. 87-8441.

United States Court of Appeals, Eleventh Circuit.

April 15, 1988.

Randolph A. Mayer, Michael T. Nations, Atlanta, Ga., for plaintiff-appellant.

Thomas E. Magill, Carter & Ansley, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and CLARK, Circuit Judges, and GONZALEZ ^*, District Judge.

PER CURIAM:

On June 7, 1984, Clayton Watts was struck by an electric pallet jack driven by Harold Glenn in the Richmond, Virginia warehouse of The Great Atlantic & Pacific Tea Company (A & P). Watts was an independent truck owner-operator who delivered paper goods to the A & P warehouse on the day of his injury. Having tendered his shipping documents inside the warehouse, Watts walked down the main aisle of the building towards the exit. On each side of the main aisle were stacks of pallets containing A & P inventory. There was no designated pedestrian walkway in the warehouse, and Watts walked along the very edge of the aisle to avoid pallet jacks and forklifts that were using the aisle. Although the Richmond A & P warehouse had a design similar to many others that Watts had seen before, the pallets on the dock side of the Richmond warehouse were stacked over six feet high. Watts could not see over the stacks, which were taller than he was.

The stacks of pallets were separated by narrow side aisles through which A & P's employees could drive pallet jacks, or worksavers, to lift pallets and transport them around the warehouse and into trucks. The pallet jacks operate at about two miles per hour. Because of the potential for confusion, the drivers of A & P's pallet jacks do not use horns even when they operate in the side aisles and approach the center aisle.

As Watts was walking towards the exit, Harold Glenn was maneuvering a pallet jack in one of the narrow side aisles to lift a pallet of paper goods. Just as Watts walked past the intersection of the center aisle and a side aisle, Glenn's pallet jack struck him in the leg. Neither Watts nor Glenn had looked around the stack of pallets to see if anyone was coming. Watts testified at trial that Glenn said, "I'm sorry, I didn't see you." Glenn testified, however, that Watts said that the accident was his own fault.

Watts visited a Dr. Cox the following morning, complaining of a swollen left leg and an abrasion on the right leg. Thereafter he was treated by Dr. Carolyn Crump, Dr. Cox's partner, for injuries to the left leg. Dr. Crump diagnosed possible traumatic arthritis. Although X-rays taken of the left leg were normal, Dr. Crump referred Watts to a general surgeon to have his left leg drained.

In March 1985, Watts slipped on some ice and injured his right leg on the license plate of his truck. Six weeks later, after the right leg had become infected, Watts again visited Dr. Crump. In early 1986 Dr. Crump referred Watts to an orthopedic surgeon, Dr. R.V. Nair. Dr. Nair placed Watts in the hospital for testing and treatment of his back and legs. Before all the tests could be completed, Watts began to suffer severe chest pains; he subsequently suffered a heart attack and underwent bypass surgery.

Dr. Nair testified at a deposition that Watts has degenerative arthritis and, probably, a herniated disc. He gave the opinion that Watts was disabled, and that the prognosis for Watts was poor. When asked by hypothetical question whether he would consider Watts permanently disabled even if Watts did not have heart problems, ¹ Dr. Nair replied that Watts would be disabled from long-distance trucking. On cross-examination by A & P's attorney, Dr. Nair admitted that it was a matter of speculation as to whether the injury from the pallet jack or the slip on the ice had caused Watts' herniated disk, but on redirect examination he stated that, if Watts had not noticed any significant difference in the symptoms before and after the slip on the ice, he could give the opinion that the herniated disk was causally related to the injury from the pallet jack. Dr. Nair's deposition testimony was read to the jury at trial.

At trial, A & P defended on the grounds that its employees had not been negligent and that Watts had been guilty of contributory negligence by not looking around the stacks of pallets to see if a pallet jack was operating close to the center aisle or preparing to enter the aisle. Under Virginia law, which governs this action, contributory negligence completely bars an action based on negligence, see Jones v. Meat Packers Equipment Co., 723 F.2d 370, 373 (4th Cir.1983), but such contributory negligence must be more than "merely trivial." Cooke v. Griggs, 183 Va. 851, 33 S.E.2d 764, 766 (1945); see Lerwill v. Regent Van & Storage, Inc., 217 Va. 490, 229 S.E.2d 880, 884 (1976). The jury returned a verdict against A & P for $124,709.00. A & P moved in the district court for judgment notwithstanding the verdict (judgment n.o.v.) or for a new trial. The district court granted judgment n.o.v. for A & P, finding that Watts was guilty of contributory negligence as a matter of law. In the alternative, the district court found that the jury verdict was against the great weight of the evidence and conditionally granted A & P's motion for a new trial if the court of appeals should reverse the grant of judgment n.o.v. Watts has appealed. We reverse both the grant of judgment n.o.v. and the grant of a new trial.

The standard governing the grant of judgment n.o.v. is well established:

On motions for directed verdict and for judgment notwithstanding the verdict, the Court should consider all the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc) (footnote omitted). ² Applying this standard, we conclude that the district court should not have granted judgment n.o.v. Reasonable persons could have differed on the subject of Watts' contributory negligence, particularly as to whether any negligence in failing to look around the pallets to see if pallet jacks were operating was too slight to bar Watts' action entirely. "Contributory negligence as a defense must be more than merely trivial; it must be a contributing cause...