McCollum v. Kmart Corp.

• Decision Date: 29 April 2009
• Docket Number: 050606750.,A134457.
• Parties: Ruth McCOLLUM, Plaintiff-Respondent, v. KMART CORPORATION, a Michigan corporation doing business in Oregon, Defendant-Appellant.
• Court: Oregon Court of Appeals

207 P.3d 1200

228 Or. App. 101

Ruth McCOLLUM, Plaintiff-Respondent, v. KMART CORPORATION, a Michigan corporation doing business in Oregon, Defendant-Appellant.

050606750.

A134457.

Court of Appeals of Oregon.

Argued and Submitted on August 13, 2008.

Decided April 29, 2009.

Michael T. Garone, Portland, argued the cause for appellant. With him on the briefs were Amanda T. Gamblin and Schwabe, Williamson & Wyatt, P.C.

Dylan R. Lawrence argued the cause for respondent. With him on the brief were Sam Hochberg & Associates and Kathryn H. Clarke.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.

HASELTON, J.

In this personal injury action, defendant Kmart Corporation appeals from an order that set aside a judgment for defendant and granted plaintiff Ruth McCollum a new trial under ORCP 64 B(1) and (6). Plaintiff defends the trial court's reasoning, urges, alternatively that she was entitled to a new trial under ORCP 64 B(4), and also advances, by way of a "cross-assignment of error," an additional, potential alternative basis for affirmance. We conclude that the trial court erred in granting the motion for new trial on its stated grounds, and we reject plaintiff's alternative contentions. Accordingly, we reverse and remand.

The operative facts, for purposes of our analysis and disposition, are uncontroverted. The denial of plaintiff's motion to compel production of certain incident reports, the allowance of defendant's in limine motion to exclude plaintiff's testimony regarding an encounter with another customer, and the denial of plaintiff's request for an in camera review are central to the parties' dispute. Consequently, we recount those matters in detail.

In June 2005, plaintiff filed this personal injury action alleging that she had been injured at defendant's Sandy Boulevard store in Portland. According to plaintiff, at about 8:30 p.m. on June 25, 2003, she slipped and fell because of the presence of a slippery foreign substance on the floor of the store's main aisle. Plaintiff alleged that defendant had been negligent in several particulars, including placing the substance on the floor, failing to warn of the presence of the substance, failing to restrict access to the area until the substance was removed, and failing to use a nonskid surface on the floor in that area.

In November 2005, plaintiff requested that defendant produce, among other items, "[c]opies of reports of all similar incidents prepared by any and all employees of the premises in question from January 1, 1997 up to and through the present." Defendant objected to that request on the basis that (1) "it is vague, overbroad, and unduly burdensome" and (2) "production of such information is not reasonably calculated to lead to the further discovery of admissible evidence."

Plaintiff subsequently moved to compel production of, inter alia, those incident reports. Plaintiff contended that those documents were reasonably calculated to lead to the discovery of admissible evidence because they would lead to information that would help establish defendant's knowledge of potentially dangerous conditions and would show that defendant should have known that failure to conduct floor inspections resulted in injuries.

Defendant opposed that motion, arguing that, to the extent that any prior "slip-and-fall" incidents did not result in litigation, documents pertaining to those incidents were not reasonably calculated to lead to the discovery of admissible evidence. Defendant also remonstrated that incident reports from several years before plaintiff's alleged injury were not relevant to establish knowledge of the alleged slippery substance on the ground on the date of plaintiff's fall. Finally, defendant asserted that claims and complaints involving unadjudicated allegations had negligible probative value.

The Honorable Jean K. Maurer¹ denied plaintiff's motion to compel, without specifying the bases for that denial. Plaintiff did not thereafter seek to modify or narrow the scope of her request for production.

Before trial, defendant moved in limine to exclude certain anticipated testimony by plaintiff. According to defendant, during the course of plaintiff's deposition, plaintiff had testified that, on the night of plaintiff's fall, she spoke to a woman who, according to plaintiff, was at the jewelry counter "waiting for an incident report." Defendant emphasized that the woman's identity was unknown and that she had not described to plaintiff the circumstances of the incident she was waiting to report. Defendant sought to exclude testimony "concerning [plaintiff's] conversation with this woman." Specifically, defendant contended that, because both the identity of the woman and the nature of the incident she was waiting to report were unknown, the evidence should be excluded on the basis that it was irrelevant, hearsay, and potentially unfairly prejudicial to defendant.

At the pretrial conference on the morning of trial, plaintiff opposed that motion, responding that the testimony was probative in that the jury could properly infer from that evidence that someone else had slipped in the same area, and around the same time, as plaintiff, and was waiting to report an incident for that reason. The trial court granted defendant's motion and excluded the testimony, reasoning that "it may be probative, but I think that any probative value is really outweighed by potential for undue prejudice and confusion, assuming it's not hearsay."

Plaintiff then immediately asked the trial court if it would engage in an in camera review of "that incident report":

"[I]f you could do an in-camera review of that incident report, if they have that with them, and see if it does relate to a slip in that same area."

(Emphasis added.) The trial court agreed to look at the report. However, defendant told the trial court that, because Judge Maurer had previously ruled that defendant was not required to produce the prior claims history requested by plaintiff, defendant did not have the incident report with it in the courtroom — and, indeed, did not know whether such a report existed. Defendant also contended that the trial court should not engage in an in camera review because the nature of the incident that the woman was allegedly waiting to report was unknown.

The trial court rejected the latter reason, but stated, "if you don't have the report, I don't think on the state of the record there's anything I can do if they don't have the report." The trial court also referred to Judge Maurer's earlier discovery ruling and observed, "And there was a ruling on that." Plaintiff responded that Judge Maurer's ruling did not address the particular issue of an incident report from the evening of plaintiff's alleged injury, but, rather, simply refused to compel production of defendant's entire incident report history for the Sandy Boulevard store over a span of eight years. The trial court responded, "Okay. Well, I — it's not here, so I can't look at it." Plaintiff responded, "Okay." Plaintiff did not ask the court to defer ruling on her request for an in camera review until defendant could produce for the court's review any incident reports generated on the evening of plaintiff's alleged fall.

The case proceeded to trial. During plaintiff's case-in-chief, her counsel examined Riggs, a loss prevention manager for defendant. Riggs testified that all employees inspect the floor as they move about the store. Defendant subsequently called Riggs to testify during its case. On plaintiff's cross-examination of Riggs, plaintiff asked whether Riggs was "aware if anyone else slipped and * * * fell on the same substance prior to [plaintiff] on the night of the incident." Riggs replied, "I am not aware." On redirect examination by defense counsel, Riggs testified regarding methods of preventing falls and stated, "[I]f having all those associates on the floor didn't provide a track record of success, then we wouldn't train our associates to look."

The jury returned a defense verdict. Plaintiff subsequently moved for a new trial pursuant to ORCP 64 B, which provides, in part:

"A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

"B(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial.

"* * * * *

"B(3) Accident or surprise which ordinary prudence could not have guarded against.

"B(4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.

"* * * * * "B(6) Error in law occurring at the trial and objected to or excepted to by the party making the application."

Plaintiff invoked ORCP 64 B(1), (3), and (4) in support of her motion. Plaintiff identified three predicate rulings that she argued warranted a new trial: (1) Judge Maurer's denial of plaintiff's motion to compel defendant's prior claims history, which encompassed the alleged incident report; (2) the trial court's allowance of defendant's motion in limine; and (3) the trial court's ultimate denial of plaintiff's request to review the alleged report in camera. Plaintiff contended that those rulings prejudiced her because they denied her access to another incident report that likely involved an incident that occurred on the same evening prior to her fall. Plaintiff asserted that the nonproduction of that report prevented her both from obtaining evidence that was probative to demonstrate that defendant had notice of unsafe conditions and from properly impeaching Riggs's testimony. Plaintiff also argued that she was prejudiced when, after defendant had previously argued in opposition to pl...