Shoup v. Wal-Mart Stores, Inc.,

• Decision Date: 31 January 2003
• Citation: 335 Or. 164,61 P.3d 928,335 Ore. 164
• Parties: Mable SHOUP, Petitioner on Review, v. WAL-MART STORES, INC., Respondent on Review.
• Court: Oregon Supreme Court

61 P.3d 928

335 Or. 164

335 Ore. 164

Mable SHOUP, Petitioner on Review, v. WAL-MART STORES, INC., Respondent on Review.

97C-14504; CA A106153; SC S48171

Supreme Court of Oregon, En Banc.

Argued and Submitted November 6, 2001.

Decided January 31, 2003.

J. Michael Alexander, of Swanson, Lathen, Alexander & McCann, P.C., Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Charese Rohny, of Vick & Conroyd, LLP, Salem.

Peter R. Chamberlain, of Bodyfelt, Mount, Stroup & Chamberlain, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Jennifer J. Peet, Portland.

Meagan A. Flynn, of Preston, Bunnell & Stone, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Lindsey H. Hughes, of Keating, Jones, Bildstein & Hughes, P.C., Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.

BALMER, J.

Plaintiff brought this negligence action against Wal-Mart, Inc. (defendant), after one of defendant's employees injured plaintiff by bumping into her and knocking her to the floor. The jury considered three specifications of negligence and returned a general verdict in plaintiff's favor. The Court of Appeals reversed and remanded the case for a new trial, holding that one of plaintiff's specifications did not state a claim for negligence under Oregon law and that defendant, therefore, was entitled to a new trial under the "we can't tell" rule that this court announced in Whinston v. Kaiser Foundation Hospital, 309 Or. 350, 788 P.2d 428 (1990). Shoup v. Wal-Mart Stores, Inc., 171 Or.App. 357, 359, 15 P.3d 588 (2000). We allowed plaintiff's petition for review. As explained below, we conclude that allowing defendant a new trial under the "we can't tell" rule is incompatible with ORS 19.415(2), which provides that "[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party." Accordingly, we reverse in part the decision of the Court of Appeals.

I.

The record establishes the following material facts. Plaintiff, who was then 89 years old, entered defendant's store and attempted to walk past defendant's employee, who was standing in the aisle with his back toward plaintiff. The employee, to get out of the way of another shopper, suddenly stepped backward, striking plaintiff in the face with his elbow and knocking her to the floor. Plaintiff was rendered momentarily unconscious, and she suffered extensive bruises and other soft-tissue injuries.

Plaintiff brought an action alleging that defendant was negligent in (1) failing to supervise its employee, (2) instructing its employee to stand in the aisle and thereby create an obstacle to persons entering the store, and (3) failing to train its employee to keep a proper lookout. Plaintiff further alleged that defendant was vicariously liable for the negligence of its employee in (1) failing to use reasonable care, (2) failing to keep a proper lookout, and (3) failing to maintain control over his body. Defendant admitted that its employee was acting within the course and scope of his employment when he injured plaintiff.

The action was tried to a jury. At the close of plaintiff's case, defendant moved for a directed verdict, making particular objections to each of plaintiff's specifications of negligence. The trial court granted defendant's motion in part, but allowed three specifications to go to the jury: whether defendant was negligent in instructing its employee to stand in the aisle; whether defendant's employee was negligent in failing to use reasonable care; and whether defendant's employee was negligent in failing to keep a proper lookout.

At the close of defendant's case, plaintiff proffered a verdict form that asked two separate questions, one regarding defendant's negligence and one regarding the negligence of defendant's employee. Defendant objected to plaintiff's form and proffered a general verdict form that did not distinguish between the negligence of defendant and its employee or between the two specifications of negligence on the part of the employee. In response to defendant's objection, plaintiff withdrew her verdict form, and the trial court used defendant's form. As noted above, the jury returned a general verdict in plaintiff's favor. Defendant neither moved for a new trial nor for a judgment notwithstanding the verdict (JNOV), and the trial court entered judgment for plaintiff.

On appeal, defendant argued that the specification of negligence based on defendant's instructions to its employee did not state a claim for negligence under Oregon law and, alternatively, that that specification was unsupported by the evidence. The Court of Appeals agreed that the specification did not state a claim for negligence and held that the trial court had erred in submitting it to the jury. Shoup, 171 Or.App. at 364, 15 P.3d 588. The Court of Appeals then held, citing Whinston, that, because it could not tell on which specification of negligence the jury had based its verdict, defendant was entitled to a new trial. The Court of Appeals explained that, under Whinston:

"[T]he prevailing plaintiff bears the burden of developing a record (most often through a special verdict) sufficient to establish the harmlessness of the error of submitting a defective specification to the jury. That is the plaintiff's obligation; the defendant need not do anything."

Shoup, 171 Or.App. at 373, 15 P.3d 588 (emphasis in original).

On review, plaintiff does not challenge the Court of Appeals' decision that her direct liability specification does not state a claim for negligence. Neither does she disagree that, under the "we can't tell" rule, defendant would be entitled to a new trial because the reviewing court cannot determine whether the jury based its verdict on the defective specification of negligence or on one (or both) of the two valid specifications. Instead, plaintiff argues that this court should abandon the "we can't tell" rule. She contends that, because there were two other, valid specifications of negligence and ample evidence to support them, an appellate court cannot conclude that the trial court's error in submitting the defective specification of negligence to the jury substantially affected defendant's rights. For that reason, plaintiff asserts, to reverse the trial court's judgment and order a new trial would violate ORS 19.415(2), which precludes an appellate court from reversing a judgment "except for error substantially affecting the rights of a party."

Defendant contends that the application of the "we can't tell" rule does not violate ORS 19.415(2) and urges us to adhere to that rule. Defendant asserts that, when the reviewing court cannot tell whether the jury has based its verdict on a defective or on a valid specification, the trial court's error in submitting the defective specification to the jury was an error that, per se, substantially affected the appellant's rights. Such an error, according to defendant, is prejudicial and requires a new trial.

As explained further below, we disagree with defendant that such an error is prejudicial. Accordingly, we conclude that the "we can't tell" rule violates the limitation on appellate courts set out in ORS 19.415(2). Because of that infirmity, we abandon the "we can't tell" rule. We begin our explanation by reviewing this court's decision in Whinston.

II.

Whinston was a medical negligence action that included three specifications of negligence in one claim for relief against a physician. The plaintiff alleged that the defendant physician had been negligent in (1) failing to perform a biopsy, (2) failing to diagnose cirrhosis, and (3) failing to diagnose vitamin A toxicity. The jury returned a general verdict in favor of the plaintiff, and the trial court entered a judgment on that verdict. The defendant then moved for a JNOV or, in the alternative, a new trial. The trial court concluded that there was no evidence that the physician's conduct had fallen below the applicable standard of care and entered a JNOV. The plaintiff appealed.

The Court of Appeals reversed. Whinston v. Kaiser Foundation Hospital, 93 Or.App. 528, 763 P.2d 177 (1988). It concluded that there was sufficient evidence that the physician negligently had failed to diagnose cirrhosis and that, therefore, the trial court had erred in entering a JNOV. Id. at 532, 763 P.2d 177. The Court of Appeals then considered whether judgment should be entered for the plaintiff based on the jury verdict or whether the defendant nevertheless was entitled to a new trial because the court could not tell whether the jury had based its verdict on the specification that properly was submitted to the jury or on one of the specifications that was not. Relying on its interpretation of earlier decisions from this court and on "the constitutional and statutory admonitions that we reverse only when we can determine that error was prejudicial," the Court of Appeals remanded the case to the trial court with instructions to enter judgment on the verdict, holding that "when several issues are submitted to the jury, a general verdict will stand if any one of the issues was properly submitted, even if there might be errors related to others." Id. at 530-31, 763 P.2d 177.

On review, this court agreed with the Court of Appeals' conclusion that one of the plaintiff's specifications of negligence was supported by the evidence. Whinston, 309 Or. at 356,788 P.2d 428. Accordingly, it affirmed the Court of Appeals' decision that the trial court erred in entering the JNOV. However, this court disagreed with the Court of Appeals' decision ordering entry of judgment on the general jury verdict. The court noted that, despite contrary wording in some cases (see309 Or. at 357-59,788 P.2d 428 (discussing cases inconsistent with "we can't tell" rule)), precedent favored remanding for a new trial in...