Holden v. Wal-Mart Stores, Inc., S-98-994.
| Decision Date | 31 March 2000 |
| Docket Number | No. S-98-994.,S-98-994. |
| Citation | 608 N.W.2d 187,259 Neb. 78 |
| Parties | Debra J. HOLDEN, appellant, v. WAL-MART STORES, INC., appellee. |
| Court | Nebraska Supreme Court |
Tylor J. Petitt, of The Van Steenberg Firm, P.C., Scottsbluff, for appellant.
Philip M. Kelly, of Nichols, Douglas, Kelly, Meade, and Ostdiek, P.C., Scottsbluff, for appellee.
The appellant, Debra J. Holden, fell after stepping in a hole in the parking lot of a store owned by the appellee, Wal-Mart Stores, Inc. Holden subsequently underwent knee replacement surgery and sustained medical bills of at least $25,000. During trial, Holden offered evidence of instances at other Wal-Mart stores involving falls due to the condition of the pavement in those stores' parking lots. The district court excluded the evidence on the basis that its probative value was outweighed by the potential for prejudice under Neb.Rev.Stat. § 27-403 (Reissue 1995).
Evidence at trial indicated that Holden had a preexisting knee condition but that the fall might have aggravated it. A jury found Wal-Mart to be 60 percent negligent and Holden to be 40 percent negligent, awarding damages in the amount of $6,000. When reduced by Holden's negligence, the damages amounted to $3,600. Holden appeals, contending that the district court erred in refusing to allow her to present evidence of similar falls occurring at other Wal-Mart stores and that the amount of damages was inadequate.
We conclude that Holden failed to show how falls at other locations were substantially similar to her fall and that the damages awarded by the jury were supported by the record.
In July 1992, Holden was injured after she fell in the parking lot of a Wal-Mart in Scottsbluff, Nebraska. Prior to the fall, Holden had been issued a handicapped parking permit dated June 2, 1992, because prior problems with her knees and feet made it difficult for her to walk distances. On the day of the fall, Holden parked in a handicapped parking space at Wal-Mart. When she pulled into the stall, she did not notice any holes in the surface of the parking lot. After she got out of her van and was walking toward the rear of it, she fell and experienced immediate pain, the worst of which was in her right knee. After she composed herself, she saw that the cause of the fall was that her foot had twisted in a hole. Following the fall, Holden went to the emergency room. Holden subsequently underwent knee replacement surgery and brought the instant action against Wal-Mart seeking damages.
In her operative petition, Holden alleged that Wal-Mart was negligent because it failed to properly maintain the parking lot, failed to adequately inspect the premises, failed to repair the hole, and failed to warn her of the condition. Wal-Mart denied the allegations and alleged that any dangerous condition in the parking lot was open and obvious, that Holden was contributorily negligent, and that she assumed the risk of injuries.
Prior to trial, Wal-Mart filed a motion in limine seeking an order prohibiting Holden from presenting evidence concerning other parking lot slip-and-fall incidents at other Wal-Mart stores. In the motion, Wal-Mart alleged that such evidence was not relevant and that any probative value was substantially outweighed by the danger of unfair prejudice or was otherwise in violation of § 27-403. The district court concluded that the relevance of such evidence was substantially outweighed by the danger of unfair prejudice and confusion of issues and sustained the motion.
During trial, the jury saw photographs of the hole that Holden had stepped in. The photographs showed a crack in the surface of the parking lot, along with a hole. A witness to the accident stated that the hole was large enough for Holden's foot to fit in. Holden's mother, also a witness to the accident, described the hole as being difficult to see. Holden presented several witnesses who testified that the hole was a pothole, that such a hole would take some time to develop, that it posed a risk, and that a retailer such as Wal-Mart had a responsibility either to repair it or to warn customers about it.
Following this evidence, Holden sought to introduce into evidence exhibit 67, which consisted of 84 reports of instances involving falls in the parking lots of other Wal-Mart stores. Holden sought to introduce the exhibit to show notice that holes in pavement need to be taken care of and argued that the exhibit was relevant to show notice and danger. Wal-Mart objected on the basis that there was nothing to show that the instances were similar due to differences in items such as the parking lot surfaces and the times of day when the falls occurred. The district court sustained Wal-Mart's objection.
Witnesses for Wal-Mart testified that the hole was not a hazard or danger. A street superintendent with experience in asphalt paving testified that the hole was not a pothole. An engineer also testified as an expert regarding asphalt repairs and maintenance. The engineer testified that in his opinion, the crack did not constitute a pothole and was not a hazard, and that upon inspection, he would not have recommended that the area required immediate attention.
Following this testimony, Holden again sought to introduce exhibit 67. As an offer of proof, Holden provided the engineer's deposition in which he stated that same or similar incidents would be relevant to him to determine whether or not the parking lot at issue was safe, whether the rules and protocols of the store were working, and whether something else needed to be done. The district court refused to admit the exhibit. The manager of the Wal-Mart where Holden fell testified regarding the safety procedures followed at the store. He also testified that he did not believe the crack in the parking lot was a hazard and did not constitute a pothole. Following his testimony, Holden again offered exhibit 67. Holden argued that the exhibit was necessary to impeach the manager's definition of a pothole because that definition was inconsistent with what Wal-Mart referred to as a "pothole" at other stores. The district court excluded the evidence.
Holden testified that she had noticed cracks, dips, and depressions in the Wal-Mart parking lot prior to July 1992. She further testified that on the day she fell, she did not expect the surface of the lot to be smooth, that nothing was present to prevent her from seeing the hole, and that she had had plenty of opportunity to observe the condition of the lot.
Because Holden has asserted that the damages awarded by the jury were inadequate, we set out the evidence presented at trial concerning her past medical history. At the time of trial, Holden was 35 years of age. She had previously injured her right knee in 1976 as a result of an accident at her school. As a result, she underwent surgery to repair the knee. Following the surgery, Holden was able to resume sporting activities and worked for a period of years.
The record reflects that in April 1992, Holden saw Dr. Diane E. Gilles, an orthopedic surgeon. At that time, Holden told Gilles that she had experienced problems with her right knee since she was in seventh grade and that it had gotten worse since then. She also indicated to Gilles that she was recently involved in an accident involving an exercise bike. Gilles noted in her report that Holden was markedly overweight and concluded that Holden had marked posttraumatic changes with bone-on-bone contact in the medial compartment, possible loose-body superlateral aspect of the knee, patellofemoral changes and spurring, and end-stage arthritis. On April 24, 1992, Holden had a follow-up visit during which Gilles suggested that she might need knee replacement surgery some day.
Wal-Mart adduced evidence that on May 13, 1992, Holden applied for disability insurance benefits from the Social Security Administration. In her application, she stated that she was unable to work due to a disabling condition that existed on December 1, 1991. On May 20, 1992, Holden completed a disability report for Social Security in which she stated that as of that date, she experienced severe pain and swelling in her right knee and was unable to be on her feet for long periods of time. Holden was issued her handicapped parking permit on June 2, and on June 26, she received disability benefits due to obesity and traumatic arthritis of the knee.
Following the fall, on July 7, 1992, a Dr. Ropp, a physician in Gilles' office, saw Holden because of the fall. Ropp did a range of motion evaluation and concluded that Holden's range of motion was better than it had been in April. Holden visited Gilles on July 14 as a followup for foot pain, and Holden did not mention any knee pain at that time. A followup visit for both foot and knee pain occurred in August. On September 28, Holden saw Ropp for left-foot pain. She told Ropp she had been standing processing tomatoes over the past 2 weeks but did not mention her knee.
In November 1992, Holden was seen by Gilles for knee pain. At that time, x rays were taken, and a comparison with the x rays from April 1992 showed the same findings. In March 1993, Holden underwent a gastric stapling operation. Gilles testified that one of the reasons for the operation was to enable Holden to lose enough weight to allow for a right-knee replacement.
Gilles testified that if Holden had not fallen, she probably could have waited between 5 to 10 years before requiring a total knee replacement. Gilles also testified that prior to the fall, Holden had an 87-percent lower extremity impairment and a 35-percent whole person impairment and that after the fall, this increased to a 97-percent lower extremity impairment and 39-percent whole person impairment. Gilles' charges for treatment related to the fall were $646.75.
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