Meek v. Wal-Mart Stores, Inc., (AC 21397)

• Citation: 806 A.2d 546,72 Conn. App. 467
• Decision Date: 24 September 2002
• Docket Number: (AC 21397)
• Court: Connecticut Court of Appeals
• Parties: JEFFREY MEEK ET AL. v. WAL-MART STORES, INC., ET AL.

72 Conn. App. 467

806 A.2d 546

JEFFREY MEEK ET AL. v. WAL-MART STORES, INC., ET AL.

(AC 21397)

Appellate Court of Connecticut

Argued May 6, 2002

Officially released September 24, 2002

Lavery, C.J., and Schaller and West, Js.

Richard F. Wareing, with whom, on the brief, was Thomas J. Rechen, for the appellants (defendants).

Michael J. Walsh, for the appellee (named plaintiff).

Opinion

LAVERY, C.J.

The defendants, Wal-Mart Stores, Inc. (Wal-Mart), and Scott Adams and Herbert Hathaway, the manager and assistant manager, respectively, of the Wal-Mart store in Waterford, appeal from the judgment of the trial court, rendered following a jury trial, awarding damages to the plaintiff Jeffrey Meek¹ for personal injuries he sustained when he was struck by falling merchandise in a large self-service retail store, which injuries the jury determined were caused by the defendants' negligence. The defendants claim that (1) the court improperly denied their motions to set aside the jury's verdict and for a new trial because the evidence was insufficient to establish their negligence, (2) the court improperly instructed the jury on negligence, (3) the court abused its discretion in granting the plaintiff's motions for an additur and to set aside the jury's finding of comparative negligence, (4) the jury verdict was an impermissible compromise and (5) a new trial is required because the court improperly excluded evidence of the plaintiff's gambling activities. We disagree with each of those claims and affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendants' appeal. On February 27, 1997, at about 6 p.m., the plaintiff and his wife, Cynthia Meek, were shopping in the sporting goods section of the Wal-Mart store in Waterford when the plaintiff was injured by falling merchandise. The couple was looking for a folding chair for Cynthia Meek, who was several months pregnant. The chairs were located on a lower level of the shelving. After Cynthia Meek tried a chair and found it unsatisfactory, the plaintiff bent over to return it to the shelf. While he was bending over, two aluminum folding camp tables in boxes fell suddenly from a higher shelf onto his back and neck, knocking him to the floor. Neither the plaintiff nor Cynthia Meek had noticed the tables before they fell, and no one else was in the aisle when the incident occurred.

Leslie Main, a Wal-Mart employee on duty in the sporting goods department, heard the tables fall and went to the aisle to investigate. When he arrived, the tables and a short metal restraining fence were on the floor. The plaintiff was rubbing his neck and acting as though he were in pain. Main was informed as to what had occurred, and thereafter returned the tables to the shelf and snapped the fence onto the shelf in front of the tables. The tables that fell were in large rectangular boxes, and each weighed about seventeen pounds. The shelf on which they were stacked was approximately four and one-half to five feet from the ground, at about the plaintiff's shoulder level. Photographs introduced at trial depict the table display as the defendants typically maintained it as it had been reassembled by Main. Three boxed tables are on the shelf, one in back of the other. They are positioned standing up on end, almost vertically but leaning slightly back against the solid rear portion of the shelf. Together, the three boxes occupy the entire depth of the shelf. The bottom of the forward most box is resting against a short white fence that is attached to the front of the shelf. The fence appears to be about one tenth the height of the boxes. There are no other restraining devices securing the boxes to the shelf. The label of the forward most box, with a large picture depicting the table as assembled, is on the visible surface facing outward from the shelf.

The plaintiff sought medical help immediately following the incident. His condition worsened over time, and he sought further treatment and evaluation from a neurologist, a chiropractor and, eventually, a chronic pain specialist. As a result of being hit by the tables, the plaintiff suffered damage to the thoracic region of his spine that is chronic, painful and debilitating. He is unable to perform the intensive manual labor that was his employment prior to the incident. Because the plaintiff is not a high school graduate and cannot sit or stand for long periods of time, or lift anything heavy, his current employment prospects are extremely limited. His injury also has had strong repercussions on his ability to enjoy his personal and family life. At the time of the incident, the plaintiff was thirty-four years old.

On April 16, 1998, the plaintiff instituted a negligence action against the defendants. He claimed that his injuries were caused by the defendants in one or more of the following ways: Wal-Mart or its employees placed the tables on the shelf in an unsafe manner; they failed to secure the tables to the shelf, although that reasonably could and should have been done; they failed to use a holding brace or bracket, although that reasonably could and should have been done; they failed to post signs warning customers of unsafe conditions; and they were not properly trained or supervised regarding safety matters, including securing items on shelves. As to Hathaway and Scott, the plaintiff alleged that they failed to use reasonable care in following Wal-Mart's safety policies concerning storage of merchandise; they failed to properly supervise other employees in storing merchandise safely and reasonably; they failed to properly inspect the shelving where the tables were stored; and they knew or should have known of numerous other incidents in which Wal-Mart customers were injured by falling merchandise that had been improperly stored, but failed to use reasonable care to prevent merchandise from falling on the plaintiff. In their special defenses, the defendants alleged comparative negligence, claiming that the plaintiff failed to be watchful of his surroundings and to use reasonable care for his safety commensurate with the conditions in the store.

The jury returned a verdict in favor of the plaintiff and against all the defendants and awarded $182,827 total damages.² The jury also found that 50 percent of the negligence causing the injuries was attributable to the plaintiff, and the damages award was reduced correspondingly.³ The court thereafter granted the plaintiff's motions for an additur and to set aside the reduction of the damages award, concluding that there was no evidence submitted at trial to support the jury's finding of contributory negligence. The court denied the defendants' motion to set aside the verdict as to their negligence or for a new trial, rejecting their claims that the evidence was insufficient to establish their negligence, that the court's instructions to the jury were legally incorrect and that the court wrongly excluded certain evidence. This appeal followed. Additional facts will be provided where pertinent.

I

The defendants claim first that there was insufficient evidence to support the jury's finding that they were negligent. Consequently, they argue that the court improperly denied their motion to set aside the verdict or for a new trial. We disagree.

"[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial ... [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Citation omitted; internal quotation marks omitted.) Davis v. Fracasso, 59 Conn. App. 291, 295, 756 A.2d 325 (2000).

"We are disinclined to disturb jury verdicts, and we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses.... The concurrence of the judgments of the [trial] judge and the jury ... is a powerful argument for upholding the verdict.... Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence ... rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict.... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." (Citations omitted; emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).

The defendants argue that the court's refusal to set aside the jury's finding of negligence was improper because there was no evidence showing that the defendants, without any intervening act by a third party, caused the incident that injured the plaintiff. They claim that the evidence established only that they elected to place the tables on a higher shelf, rather than on a lower one or on the ground, to stand them upright rather than flat and to restrain them using the short fence rather than a restraining bar, and that there was no proof that those decisions created a hazardous condition that caused the tables to fall on the plaintiff. Furthermore, because the evidence was uncontroverted that the defendants' typical manner of displaying the tables was leaning slightly backward so that they would not tip forward into the aisle and because no evidence was presented regarding the...