Hammer v. Fred Meyer Stores Inc.

• Decision Date: 20 April 2011
• Docket Number: No. 05CV0875; A142677.
• Parties: Jacqueline HAMMER, Plaintiff–Respondent,v.FRED MEYER STORES, INC., a Delaware corporation, Defendant–Appellant.
• Court: Oregon Court of Appeals

242 Or.App. 185

255 P.3d 598

Jacqueline HAMMER, Plaintiff–Respondent,

v.FRED MEYER STORES, INC., a Delaware corporation, Defendant–Appellant.

No. 05CV0875; A142677.

Court of Appeals of Oregon.

Argued and Submitted Jan. 20, 2011.Decided April 20, 2011.

Edward H. Talmadge, Medford, argued the cause for appellant. With him on the briefs was Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.Megan E. Dolan, Portland, argued the cause for respondent. With her on the brief were Martin C. Dolan and Dolan Griggs LLP.Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and CARSON, Senior Judge.BREWER, C.J.

Defendant appeals from a judgment on a jury verdict for plaintiff in this premises liability action arising from personal injuries that plaintiff suffered while shopping in one of defendant's stores. In two assignments of error, defendant challenges the trial court's denial of its directed verdict motion and the giving of a res ipsa loquitur instruction to the jury. We affirm.

In reviewing the denial of defendant's motion for a directed verdict, we view the evidence and reasonable inferences that can be drawn from it in the light most favorable to plaintiff. Greist v. Phillips, 322 Or. 281, 285, 906 P.2d 789 (1995). Our review “is circumscribed by the case actually presented to the jury through pleadings, evidence, and jury instructions.” Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or. 304, 310, 39 P.3d 846 (2002). In addressing defendant's jury instruction challenge, we view the evidence supporting the giving of the instruction in the light most favorable to plaintiff, the party requesting the instruction. Jett v. Ford Motor Co., 192 Or.App. 113, 120, 84 P.3d 219, rev. den., 337 Or. 160, 94 P.3d 876 (2004). In light of that view of the evidence, we review to determine whether the instruction given by the trial court was a correct statement of the law. See generally State v. Rogers, 313 Or. 356, 383, 836 P.2d 1308 (1992), cert. den., 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993). Further, an erroneous instruction constitutes reversible error only if it “prejudiced the defendant when the instructions are considered as a whole.” State v. Williams, 313 Or. 19, 38, 828 P.2d 1006 (1992).

As pertinent here, the evidence at trial showed that, while plaintiff was shopping at a Fred Meyer store, she removed a half-gallon carton of lemonade from a display shelf. The shelf was located in a refrigerated “end cap” display at the end of a shopping aisle. The shelves in the end cap were four or five feet wide and were designed to fit into the end cap and fasten down. The cartons of lemonade were loaded on a shelf inside the end cap that was at chest-level to plaintiff. The cartons were loaded, facing forward, all the way across the shelf.

When plaintiff took one of the cartons from the shelf, the shelf flipped up from the back, ejecting additional cartons of lemonade from the shelf toward plaintiff. After the shelf flipped up and ejected the cartons, it snapped back down. Plaintiff attempted to dodge the falling cartons but, despite her efforts, a couple of the cartons struck her. In attempting to get out of the way, plaintiff suffered injuries to her neck and shoulders. As a consequence of those injuries, plaintiff incurred substantial medical expenses. Plaintiff ultimately filed this action, alleging in her complaint that the shelving display in the end cap was defective and that defendant was negligent in failing to exercise reasonable care to protect plaintiff from, or warn her against, the danger posed by the defective shelf display.

When the accident occurred, a supplier's representative, Donald Anderson, was stocking shelves nearby. Anderson heard a noise that sounded like items falling to the floor. When he looked toward the direction of the noise, Anderson saw cartons “still falling,” and plaintiff was standing by other fallen cartons. When Anderson attempted to place the fallen cartons back in the middle part of the shelf, the shelf tipped forward toward him, so Anderson shoved the cartons all the way to the back of the shelf. Anderson then notified one of defendant's employees that there was a problem with the shelf that needed to be fixed.

Defendant's store manager, Sowers, testified that defendant owns the end caps located in its stores. According to Sowers, when an employee builds an end cap display, product is taken off shelves and moved around. In that process, shelves and end caps can be moved around the store every week or two. Defendant does not have a designated employee who is responsible for inspecting whether shelving is correctly installed. Sowers testified that defendant's employees are responsible for noticing and fixing shelves that are unstable, sagging, or not properly installed.

Defendant's food manager, Alexander, was responsible for overseeing display (including end cap) safety, product safety, and product placement, in the store where plaintiff was injured. Alexander was unaware of any policy regarding how much product could be placed on a shelf or the weight capacity for end cap shelves. There was a policy that required employees to stack an end cap shelf until it was full. Alexander testified that, in the past, defendant had had to replace shelves in end cap displays. Inspections occurred if Alexander was notified of a problem with a display; however, there was no regular inspection system in place, nor were there maintenance or inspection logs for end cap displays at the store.

Scott McElroy, an independent risk consultant, testified as an expert witness on behalf of plaintiff. McElroy testified that, because defendant had failed to conduct safety audits, allowed improper stacking of product on store shelves without adequate attention to weight, and allowed improper loading of shelves in the store, defendant “did not meet the standard of care to protect the public from injury.” McElroy also testified that defendant had failed to provide its store employees with specific training about shelving, and that shelves could become loose, metal components could become worn, or shelves could be improperly inserted into racks. McElroy could not testify to the precise mechanism that caused the shelf to tip in this case, but he opined:

“[T]he shelf doesn't fall on its own. And the shelves are supposed to be secure enough where you can reach up and grab an item from the shelf, and not have it collapse which appears to be what happened.”

Defendant moved for a directed verdict at the conclusion of plaintiff's case-in-chief, and again at the close of the evidence, on the ground that plaintiff could not prevail because there was no evidence that defendant knew of a problem with the shelf or was aware of a danger before the accident occurred in this case. The trial court denied those motions. At the end of the trial, among the other instructions that it gave, the court instructed the jury concerning the doctrine of res ipsa loquitur, using a modified version of Uniform Civil Jury Instruction 24.01.¹ We consider below whether defendant adequately objected to the instruction.

The jury found that defendant was negligent in one or more of the ways alleged in plaintiff's complaint and that defendant's negligence caused plaintiff damage; it awarded plaintiff economic and noneconomic damages in the total amount of $362,000. Defendant appeals from the ensuing judgment that the trial court entered on the jury's verdict.

We first address defendant's argument that the trial court erred in denying its motions for directed verdict. Plaintiff's claim invokes the legal duty owed by a land occupier to business invitees. Defendant asserts on appeal, as it did before the trial court, that plaintiff adduced no evidence that defendant had discovered, or in the exercise of reasonable care should have discovered before plaintiff was injured, any defect in the shelf display. According to defendant, the trial court—in reaching a contrary conclusion—erroneously applied the doctrine of res ipsa loquitur to identify permissible inferences from which the jury could find that defendant was negligent. In particular, defendant asserts that the trial court overlooked controlling case law establishing that that doctrine cannot be invoked in the circumstances of this case.

The Supreme Court summarized the legal duty owed by a land occupier to business invitees in Woolston v. Wells, 297 Or. 548, 557–58, 687 P.2d 144 (1984):

“In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.”

Res ipsa loquitur is a rule of circumstantial evidence that permits a jury to infer both negligence and causation if the harm that occurs is “ ‘of a kind that which more probably than not would not have occurred in the absence of negligence on the part of the defendant’ ” McKee Electric Co. v. Carson Oil Co., 301 Or. 339, 353, 723 P.2d 288 (1986) (quoting Watzig v. Tobin, 292 Or. 645, 649, 642 P.2d 651 (1982)); Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or.App. 637, 640, 978 P.2d 429, rev. den., 329 Or. 318, 994 P.2d 123 (1999). A plaintiff must establish the fundamental elements of the doctrine before an inference of negligence or causation will be permitted, namely, (1) that there is an injury, (2) that the injury “ ‘is of a kind which ordinarily does not occur in the absence of someone's negligence,’ ” and (3) that the negligence that caused the event was more probably than not attributable to a particular defendant. Umpqua Aquaculture, Inc. v. Ron's Welding, 111 Or.App. 220, 223–24, ...