Brown v. Wal-Mart Stores, Inc.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: BALDOCK
• Citation: Brown v. Wal-Mart Stores, Inc., 11 F.3d 1559 (10th Cir. 1993)
• Decision Date: 17 December 1993
• Docket Number: WAL-MART,No. 92-6289,92-6289
• Parties: Reta Lunsford BROWN, Plaintiff-Appellee, v.STORES, INC., a Delaware Corporation, Defendant-Appellant.

Page 1559

11 F.3d 1559

Reta Lunsford BROWN, Plaintiff-Appellee, v. WAL-MART STORES, INC., a Delaware Corporation, Defendant-Appellant.

No. 92-6289.

United States Court of Appeals Tenth Circuit.

Dec. 17, 1993.

David B. Christian (Duke Halley with him on the brief), of Halley & Christian, Woodward, OK, for plaintiff-appellee.

Bruce V. Winston (Cynthia Hines Majors with him on the brief), of Stewart & Elder, Oklahoma City, OK, for defendant-appellant.

Before BALDOCK, BRIGHT, ^* and McWILLIAMS, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Wal-Mart Stores, Inc. appeals an adverse jury verdict and judgment in a negligence action brought by Plaintiff Reta Lunsford Brown. We have jurisdiction under 28 U.S.C. Sec. 1291.

While shopping at Defendant's store in Woodward, Oklahoma, Plaintiff and her husband observed a sidewalk display of pegboards leaning vertically against the Defendant's building. After paying for six pieces of the pegboard at the store's service desk, Plaintiff, with her husband's assistance, selected five pieces of pegboard from the display and loaded them into her husband's truck.

When Plaintiff and her husband returned to the display to select a sixth piece, Plaintiff's husband began leafing through the pegboard, standing the individual pieces of pegboard on their end, with Plaintiff acting like a bookend balancing the pegboard. When several pieces of pegboard had been leafed through and stood up in this manner, other pegboards stacked against the wall fell on those balanced by Plaintiff, and the weight of the boards involuntarily propelled Plaintiff backwards off the sidewalk into the store's parking lot. As Plaintiff moved backwards off balance, she fell over several cinder blocks that Defendant had left in its parking lot after disassembling a plant display. As a result, Plaintiff suffered various injuries, including a broken hip.

Plaintiff brought a tort action against Defendant alleging Defendant set up and maintained the pegboard display in a condition Defendant knew or should have known was hazardous to its customers. Plaintiff further claimed that Defendant failed to maintain its premises in a safe condition by failing to remove the cement blocks from the parking lot.

At trial, Defendant claimed the pegboard display and cement blocks located in the parking lot were open and obvious conditions, relieving Defendant from any duty to warn Plaintiff or remedy the conditions. Furthermore, Defendant alleged the negligence of Plaintiff and her husband caused or contributed to her injuries. The jury returned a verdict in favor of Plaintiff, finding Plaintiff fifteen percent negligent, Plaintiff's husband thirty percent negligent, and Defendant fifty-five percent negligent and awarding total damages in the amount of $215,000.

Following the jury's verdict, Defendant moved for a judgment as a matter of law and alternatively for a new trial or remittitur. The trial court denied both motions and entered judgment in accordance with the jury's verdict, reducing the jury's award of damages by the percentage of negligence of Plaintiff and her husband. Defendant now appeals.

On appeal, Defendant contends the district court erred by: (1) refusing to grant Defendant's motion for judgment as a matter of law, (2) failing to instruct the jury on the burden of proof concerning third party negligence, (3) erroneously instructing the jury regarding the duty owed a business invitee, (4) erroneously instructing the jury regarding Defendant's open and obvious defense, (5) taking judicial notice of a municipal ordinance and erroneously giving a jury instruction on the ordinance, (6) failing to grant a new trial based on, inter alia, Plaintiff counsel's improper comment on Defendant's offer to pay medical expenses during the course of closing arguments, and (7) failing to grant Defendant's motion for remittitur. Finding error in the court's jury instructions, we reverse and remand for a new trial. We address each of Defendant's claims in turn. ¹

I.

Defendant argues it was not negligent and thus entitled to judgment as a matter of law because (1) Plaintiff's husband was the proximate cause of the accident, and (2) the pegboard display and cement blocks were open and obvious conditions. We review a district court's denial of a motion for judgment as a matter of law de novo, Johnson v. Thompson, 971 F.2d 1487, 1495 (10th Cir.1992) cert. denied, --- U.S. ----, 113 S.Ct. 1255, 122 L.Ed.2d 654 (1993), and determine "whether there is evidence upon which the jury could properly find a verdict for the party [against whom the motion is directed]." Rajala v. Allied Corp., 919 F.2d 610, 615 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991). "[W]e must construe the evidence and inferences most favorably to the nonmoving party", Ralston Dev. Corp. v. United States, 937 F.2d 510, 512 (10th Cir.1991) (quoting Zimmerman v. First Federal Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988)), and refrain from weighing the evidence, passing on the credibility of witnesses, or substituting our judgment for that of the jury. Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir.1984). Although federal law dictates whether a judgment as a matter of law is appropriate, Brown, 736 F.2d at 612, in a diversity action we examine the evidence in terms of the underlying burden of proof as dictated by state law. See Rajala, 919 F.2d at 615.

We apply Oklahoma law in this case and under Oklahoma law, a party seeking to establish negligence must prove by a preponderance of the evidence: (1) a duty owed by the defendant to the plaintiff to use ordinary care, (2) a breach of that duty, and (3) an injury proximately caused by the defendant's breach of duty. Thompson v. Presbyterian Hosp., 652 P.2d 260, 263 (Okla.1982). A business owner owes a duty to its invitees or customers to exercise ordinary care to keep aisles and other parts of the premises used by invitees in transacting business in a reasonably safe condition. Williams v. Safeway Stores, Inc., 515 P.2d 223, 225 (Okla.1973). A business owner also must warn customers of dangerous conditions on the premises which are known or should reasonably be known by the owner. Id. There is no duty, however, to protect or warn an invitee about dangers readily apparent and observable and which would be discovered by the invitee in the exercise of ordinary care. Nicholson v. Tacker, 512 P.2d 156, 158 (Okla.1973); Beatty v. Dixon, 408 P.2d 339, 343 (Okla.1965).

A.

Defendant first argues it was entitled to judgment as a matter of law because the action of Plaintiff's husband in leafing through the pegboard was the proximate cause of the accident and Plaintiff's injuries. The evidence at trial indicated that Plaintiff was injured as a result of the "practically upright" pieces of pegboard falling forward when Plaintiff's husband began leafing through them, propelling her into several cement blocks Defendant had left in the parking lot after disassembling a plant display, causing Plaintiff to suffer serious injuries. Upon examination by the court, an employee of the Defendant admitted that Plaintiff's husband browsed through the display and made selections from the display in a manner anticipated by Defendant. A review of the record before us allows us to conclude that from the evidence presented at trial, and the reasonable inferences drawn therefrom, the jury could have found that negligence on the part of Defendant proximately caused Plaintiff's accident and injuries.

B.

Defendant next argues it was entitled to judgment as a matter of law because it owed no duty to Plaintiff to remedy or warn of any dangerous condition of the display because the pegboard display and cement blocks were open and obvious conditions. In support of its argument, Defendant cites Plaintiff's testimony in which she admits that she had observed the display both prior to and on the day of her accident, that there was nothing hidden about the way the pegboard display was set up, and that she knew there were plant displays placed in the parking lot.

While it is true that the pegboard and cement blocks were not hidden from view, nothing in the record supports the conclusion that the inherent danger of the setup was open and obvious. To the contrary, Defendant's assistant manager testified that the display looked safe. Furthermore, another witness for Defendant testified that Plaintiff and her husband examined the pegboard and made selections from the display in a manner anticipated by Defendant. In reviewing the evidence in the light most favorable to Plaintiff, see Rajala, 919 F.2d at 615, we conclude the evidence created a question of fact as to whether the pegboards and the cement blocks presented open and obvious dangers which a person exercising ordinary care should have appreciated. See e.g., Brown, 736 F.2d at 614 (finding judgment as a matter of law improper where evidence created fact question for jury). We therefore conclude the district court properly denied Defendant's motion for judgment as a matter of law.

II.

Defendant argues the district court erroneously instructed the jury in four instances. "In reviewing a challenge to a jury instruction, we consider the instructions given as a whole." Furr v. AT & T Tech. Inc., 824 F.2d 1537, 1549 (10th Cir.1987). We must determine whether the instructions "state the law which governs and provided the jury with an ample understanding of the issues and the standards applicable." Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988). We therefore "consider all that the jury heard and, from [the] standpoint of the jury, decide 'not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had [an] understanding of the issues and its duty to determine [those] issues.' " Id. An error in jury instructions will mandate reversal of a judgment only if the...