Larson v. K-Mart Corp., K-MART

• Decision Date: 20 February 1990
• Docket Number: No. 89-490,K-MART,89-490
• Citation: 241 Mont. 428,787 P.2d 361
• Parties: Ramona LARSON, Plaintiff and Appellant, v.CORPORATION, Defendant and Respondent.
• Court: Montana Supreme Court

Page 361

787 P.2d 361

241 Mont. 428

Ramona LARSON, Plaintiff and Appellant, v. K-MART CORPORATION, Defendant and Respondent.

No. 89-490.

Supreme Court of Montana.

Submitted on Briefs Jan. 25, 1990.

Decided Feb. 20, 1990.

Lon J. Dale and Brian J. Smith, Milodragovich, Dale & Dye, Missoula, for plaintiff and appellant.

Molly R. Shepherd, Worden, Thane & Haines, Missoula, for defendant and respondent.

HARRISON, Justice.

Larson appeals the denial of motions for judgment notwithstanding the verdict and for a new trial entered by the District Court of the Fourth Judicial District, Missoula County, Montana. We affirm.

Appellant raises the following issues:

1. Did the District Court err in denying plaintiff's motion for new trial pursuant to Rule 59(a), M.R.Civ.P., and Sec. 25-11-102(1), MCA, based upon the following grounds:

A. The District Court erroneously allowed evidence of the number of customers who had gone through K-Mart check stands for the first hour of operation on July 15, 1987.

B. The District Court erred in submitting jury instructions modified to include the word "accident" in lieu of "injury."

C. The District Court erred in giving mere accident instructions where a re ipsa factual circumstance existed.

D. The District Court erred in failing to instruct the jury pursuant to the applicable rules of law from Pimentel v. Roundup Co. (1982), 32 Wash.App. 647, 649 P.2d 135.

2. Did the District Court err in denying plaintiff's motion for judgment notwithstanding the verdict, when, in applying the court's instruction no. 27, the only viable conclusion is that the defendant was negligent as a matter of law.

The Missoula K-Mart store opened for business at 9:00 a.m. on July 15, 1987. Appellant arrived at K-Mart approximately five minutes after it opened. On that day, K-Mart was conducting one of its biggest half-price sales of the year. Appellant had gone to K-Mart in response to the outdoor furniture sale advertisement she had read in the morning paper. After entering K-Mart, appellant proceeded directly to the outdoor furniture display. At approximately 9:10 to 9:15 a.m., while walking down an aisle near the outdoor furniture display, appellant slipped on a small amount of dark liquid on the floor and fell.

Appellant alleged that K-Mart's negligence resulted in the dark liquid's presence on the floor when she slipped and fell. Because appellant's injuries had not stabilized, the parties agreed to bifurcate the case and submit only the liability question to the jury, reserving the damage issue.

At trial, much of the testimony related to who was more likely to have caused the spill, a customer or a K-Mart employee. Appellant contended that a K-Mart employee caused the spill. K-Mart contended that a customer caused the spill and that K-Mart could not have reasonably been expected to be aware of the spill.

As well, K-Mart presented evidence regarding the measures it employs to prevent accidents such as appellant's. In rebuttal, appellant presented evidence of instances prior to appellant's accident where K-Mart employees had not followed the prescribed policies. The jury returned a verdict in K-Mart's favor.

I.

Appellant alleges four points of error in the District Court's denial of appellant's motion for a new trial. The decision "to grant or deny a new trial is within the sound discretion of the trial court, (citation omitted), and will not be overturned absent a showing of manifest abuse of discretion (citation omitted)." Walter v. Evans Products Co. (1983), 207 Mont. 26, 30-31, 672 P.2d 613, 616. We hold that the District Court did not abuse its discretion in denying appellant's motion for a new trial.

First, appellant contends that the District Court erred in allowing respondent to present testimony that 131 customers went through the check-out stands between 9:00 and 10:00 a.m. on July 15, 1987. K-Mart regularly keeps an hourly breakdown of customers through the check-out stands for staffing purposes. Appellant objected to this testimony as prejudicial and misleading because it included customers in the store after appellant's fall. However, the record discloses K-Mart did not offer the evidence to establish that 131 customers were in K-Mart at 9:10-9:15 a.m. Also, the record discloses that K-Mart does not retain similar records for any shorter time periods.

The number of customers in the store was clearly relevant to the issue of who likely caused the spill. Appellant's counsel had ample opportunity during cross-examination and closing argument to put the 131-customer evidence in context. The District Court did not err in admitting the evidence.

Second, appellant argues that the District Court erred by submitting jury instructions that included the word "accident" in lieu of "injury" in five of the instructions. Apparently the substitution occurred as a result of the parties' agreement not to mention appellant's injuries or damages. Appellant contends that the substitution of the word "accident" for "injury" conveyed to the jury the connotation of no liability. Even if the word "accident" tainted those instructions, the other instructions and verdict form corrected any misapprehension. No reversible error occurred in substituting the word "accident" for the word "injury."

Third, appellant asserts that the District Court erred in giving mere accident instructions where a res ipsa factual circumstance existed. Appellant did not plead the res ipsa doctrine and did not offer a res ipsa instruction. We reject this contention.

Fourth, according to appellant, the District Court erred in refusing to give three jury instructions that she offered which were taken from the Washington Appellate Court's decision in Pimentel v. Roundup Co. (1982), 32 Wash.App. 647, 649 P.2d 135. The District Court did give, over defendant's objection, an instruction based on the Washington Supreme Court's decision in Pimentel v. Roundup Co. (19...