Shoup v. Wal-Mart Stores, Inc.

Decision Date13 December 2000
Citation171 Or. App. 357,15 P.3d 588
PartiesMable SHOUP, Respondent, v. WAL-MART STORES, INC., Appellant.
CourtOregon Court of Appeals

Steven M. Lippold, Salem, argued the cause and filed the briefs for appellant.

J. Michael Alexander, Salem, argued the cause for respondent. With him on the brief was Swanson, Lathen, Alexander & McCann, P.C.

Before HASELTON, Presiding Judge, and WOLLHEIM and BREWER, Judges.

HASELTON, P.J.

Defendant Wal-Mart appeals from an adverse judgment in a personal injury action. Defendant contends that: (1) the trial court erroneously submitted a deficient specification of negligence to the jury; and (2) because the jury rendered a general verdict, defendant is entitled to a new trial under the "we can't tell" rule of Whinston v. Kaiser Foundation Hospital, 309 Or. 350, 357, 788 P.2d 428 (1990). Plaintiff responds that the challenged specification, as refined and proved at trial, is sufficient, and that in all events, defendant, in objecting to a special verdict form that plaintiff's counsel proffered to the trial court, abdicated any future invocation of the "we can't tell" rule. We agree with defendant and, consequently, reverse and remand for a new trial.

Viewed most favorably to plaintiff as the prevailing party,1 the record establishes the following material facts: Plaintiff Mable Shoup and her husband were regular customers of the Wal-Mart store in North Salem. On February 15, 1996, plaintiff, who was then 89 years old, entered the store with her husband through the garden entrance.2 The aisle leading into the store from that entrance was six to eight feet wide, with customer and cart traffic going in both directions entering and exiting the store. Shopping carts were stored near the entry, further narrowing the usable aisle way. Pedestrian and cart traffic that day was heavy.

Charles Niver was employed by Wal-Mart as a "greeter." Niver's primary functions were "greeting people, helping people, and security." Niver received periodic performance reviews and, on one occasion, had been informed that he "needed to be more aware of what goes on behind you."

As the Shoups entered the store, they saw Niver standing in the aisle, talking with another customer. Plaintiff attempted to get past Niver by going between him and the row of shopping carts—a space approximately three feet wide. As plaintiff attempted to pass behind him, Niver stepped back suddenly, striking plaintiff in the face with his elbow and knocking her to the ground. Plaintiff was rendered momentarily unconscious by the fall, suffered extensive bruising and soft-tissue injuries, and was taken to the hospital thereafter.

Plaintiff brought this action, alleging two alternative claims for relief. First, she alleged that Wal-Mart was directly liable on a variety of grounds. At the core of this appeal is paragraph 5(b) of the complaint, in which plaintiff alleged that WalMart was negligent in:

"Instructing or requiring persons in the position of greeter to stand and remain in the customer pathway thereby creating an obstacle to customers entering its stores."

Second, plaintiff alleged that Wal-Mart was vicariously liable for the negligence of its employee, Niver:

"6(a) In failing to use reasonable care when proceeding through the store where he knew or should have known customers would be constantly entering the store, and would be present in his pathway
"(b) In failing to keep a proper lookout when moving through aisles where customers were located, and
"(c) In failing to keep reasonable control of his body by turning so abruptly as to constitute a danger to others nearby where he knew or should have known customers were entering the store."

At trial, after both parties had rested, defendant moved "to dismiss or strike" the disputed direct liability specification contained in paragraph 5(b), arguing that "merely by having a greeter or an employee positioned near the entrance of the store cannot, in and of itself, as a matter of law, be negligent." The trial court denied that motion.3

Thereafter, during preclosing argument colloquy on jury instructions, plaintiff offered a special verdict form that sought to distinguish between the direct liability and vicarious liability claims. Defendant, who had submitted a general verdict form, objected to plaintiff's proposed form, and in response—and before the court ruled on defendant's objections or on the general propriety of the proposed form—plaintiff withdrew the proposed special verdict form.4 The jury subsequently returned a verdict for plaintiff, awarding economic damages of $2,099 and noneconomic damages of $25,000.

On appeal, defendant raises two interrelated assignments of error: (1) The trial court erred in denying defendant's motion for a directed verdict against paragraph 5(b) in that there was no evidence to support the allegation that defendant had, in fact, directed Niver to stand and remain in a position creating an obstacle to customers. (2) The court erred in denying defendant's motion to strike or dismiss paragraph 5(b) in that the facts alleged there do not state a claim for negligence under Oregon law. Defendant further contends that, because the jury returned a general verdict, under the "we can't tell rule" the submission of the flawed direct liability specification requires a new trial. See Whinston, 309 Or. at 359, 788 P.2d 428.

Plaintiff counters that defendant, by its objections to the proposed special verdict form, forewent any ability to invoke the "we can't tell" principle on appeal. That is, plaintiff reasons that, but for defendant's objections, the jury would have responded to the special verdict form and "we would be able to tell" the basis of the verdict. Plaintiff further asserts that, in all events, as buttressed by the proof adduced at trial, paragraph 5(b) was legally and factually sufficient.

Thus, the appeal turns on two issues. First, should the direct liability specification, paragraph 5(b), have been submitted to the jury? Second, even if not, in these circumstances is defendant entitled to the benefit of the "we can't tell" principle? We address each issue in turn.

When a defendant assigns error to the denial of a motion challenging the sufficiency of the pleadings at the conclusion of trial on the merits, we "consider the whole record, including evidence introduced by the defendant, to determine whether the plaintiff presented a prima facie case." Scholes v. Sipco Services & Marine, Inc., 103 Or.App. 503, 506, 798 P.2d 694 (1990). We view the evidence in the light most favorable to the nonmoving party, extending to that party the benefit of all reasonable inferences that may be drawn from the evidence. Faverty v. McDonald's Restaurants of Oregon, Inc., 133 Or.App. 514, 521, 892 P.2d 703 (1995), rev. dismissed 326 Or. 530, 971 P.2d 407 (1998) (applying that standard to review of denials of motions for directed verdict and to dismiss following trial on the merits). We conclude that, even as amplified by the evidence presented at trial, plaintiff's direct liability claim against Wal-Mart was insufficient as a matter of law.

On appeal, as before the trial court, the parties both characterize plaintiff's direct liability claim, and particularly specification 5(b), as sounding in premises liability.5 Woolston v. Wells, 297 Or. 548, 557-58, 687 P.2d 144 (1984), describes the law of premises liability as it applies to the duty of a storekeeper to their customers:

"In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise [due care] to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm."

See also Andrews v. R.W. Hays Co., 166 Or.App. 494, 502-03, 998 P.2d 774 (2000); Jensen v. Kacy's Markets, Inc., 91 Or.App. 285, 288, 754 P.2d 624 (1988) (both applying standard). A condition presents an unreasonable risk of harm if "it cannot be encountered with reasonable safety, even if the danger is known and appreciated." Jensen, 91 Or.App. at 289, 754 P.2d 624.

Defendant contends that the risk of harm arising from the positioning of a greeter in a busy and congested entry of a retail store is not unreasonable because the greeter can still be approached safely, even when stationed in a congested and busy environment:

"Being a person, the greeter is not an unreasonably dangerous condition found at the store, such as a foreign substance on the floor or a concealed hole. He is not an inanimate object. * * * The plaintiff would know and understand, as any reasonable person would, that a person with the inherent mobility of his legs can stand in one place, step forward, back, to either side, or begin walking from a standstill at any moment. There is therefore a zone around a person which could be occupied or invaded by his or her movements at any moment. It should be expected that a reasonable person would appreciate this zone whenever encountering another person in a store, on a sidewalk, or anywhere for that matter. Therefore, the greeter, a person, can be encountered with reasonable safety where his presence is known and appreciated by a reasonable person in the position of the plaintiff."

Thus, defendant's argument, as we understand it, is that even viewing the evidence most favorably to plaintiff, any harm suffered in this case arose not from Niver's mere presence in the entryway, but from his volitional act of turning and stepping back into plaintiff. That is, plaintiff's injury was caused not by any "human obstruction" in the aisle, but by Niver's independent movement.

We agree that the risk of harm that plaintiff encountered here arose from...

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4 cases
  • Ault v. Del Var Props., LLC
    • United States
    • Oregon Court of Appeals
    • 26 October 2016
    ...for standard of care that an occupier of land owes to business invitees “as to open and obvious dangers”); Shoup v. Wal – Mart Stores, Inc. , 171 Or.App. 357, 362, 15 P.3d 588 (2000), rev'd in part on other grounds , 335 Or. 164, 61 P.3d 928 (2003) (“A condition presents an unreasonable ris......
  • Shoup v. Wal-Mart Stores, Inc.,
    • United States
    • Oregon Supreme Court
    • 31 January 2003
    ...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 tri......
  • Anderson v. Hagedorn
    • United States
    • Oregon Court of Appeals
    • 13 December 2000
  • Shoup v. Wal-Mart Stores, Inc.
    • United States
    • Oregon Supreme Court
    • 26 June 2001
    ...P.3d 1044 332 Or. 305 Shoup v. Wal-Mart Stores, Inc. No. S48171. Supreme Court of Oregon. June 26, 2001. Appeal from No. A106153, 171 Or.App. 357, 15 P.3d 588. Petition for review is ...
1 books & journal articles
  • §10.1 Premises Liability Generally
    • United States
    • Torts (OSBar) Chapter 10 Premises Liability
    • Invalid date
    ...any of the additional characteristics necessary to present this issue to a jury."); Shoup v. Wal-Mart Stores, Inc., 171 Or App 357, 364, 15 P3d 588 (2000), aff'd in part and remanded in part on other grounds, 335 Or 164 (2003) (store employee's presence as customer greeter in store's crowde......

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