Steffensen v. Smith's Management Corp.

• Decision Date: 29 October 1991
• Docket Number: No. 910210-CA,910210-CA
• Citation: 820 P.2d 482
• Parties: Pearl H. STEFFENSEN, Plaintiff and Appellant, v. SMITH'S MANAGEMENT CORPORATION, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 482

820 P.2d 482

Pearl H. STEFFENSEN, Plaintiff and Appellant, v. SMITH'S MANAGEMENT CORPORATION, Defendant and Appellee.

No. 910210-CA.

Court of Appeals of Utah.

Oct. 29, 1991.

Certiorari Granted May 12, 1992.

Richard B. McKeown and Bradley H. Parker, Salt Lake City, for plaintiff and appellant.

Christopher A. Tolboe, Salt Lake City, for defendant and appellee.

Before BILLINGS, GREENWOOD and JACKSON, JJ.

OPINION

BILLINGS, Associate Presiding Judge:

This is an appeal from a jury verdict in a negligence action. Plaintiff Pearl Steffensen was injured in defendant Smith's Management Corporation's ("Smith") grocery store by a shoplifter attempting to flee from the store's management. The jury found Smith was negligent, but the negligence was not the proximate cause of Mrs. Steffensen's injury. On appeal, Mrs. Steffensen asserts the trial court improperly: (1) ruled Smith's failure to train its employees as to the appropriate methods to deal with shoplifters or to deter shoplifting was not, as a matter of law, the proximate cause of Mrs. Steffensen's injury; (2) charged the jury on the law of foreseeability; and (3) excluded certain expert testimony. We affirm.

FACTS

On March 2, 1987, Bradley Burnett entered a Smith's grocery store to shoplift beer and cigarettes. Gary Canham, the store's front-end manager, observed Mr. Burnett take beer and cigarettes from the store's shelves. As Mr. Burnett walked toward the front of the store, Mr. Canham suspected Mr. Burnett might attempt to leave the store without paying for the merchandise. Mr. Canham immediately informed Paul Rompus, Smith's Drug King manager, and together the two watched Mr. Burnett from the office area at the front of the store. As Mr. Burnett walked toward the front of the store, he noticed the two managers and felt they were watching him. Accordingly, Mr. Burnett got in line at a checkout stand. As soon as Mr. Burnett felt he was no longer being watched, he got out of line and walked quickly toward the door with the merchandise.

The two managers then confronted Mr. Burnett and asked him to come with them to their office. As the three walked toward the office, Mr. Rompus called out to another employee at the front of the store, telling her to call the police. As the group reached the office area, Mr. Burnett turned and "broke" toward the exit, dropping the beer and cigarettes as he ran. Mr. Rompus yelled "stop him--see if you can stop him," in an effort to engage the assistance of others. Responding to the call for help, another employee attempted to stop Mr. Burnett by assuming a football blocking stance in the aisle. Mr. Burnett dodged this employee, turning in a different direction, and as he did so, ran directly into another employee. Mr. Burnett "bounced" off this employee directly into the plaintiff, Mrs. Steffensen, who was standing at the customer service counter writing a check. The force of the collision knocked Mrs. Steffensen to the ground, where she struck her head on the tile floor. Mrs. Steffensen was taken to the hospital and has since suffered severe "stroke-like" paralysis to the entire left side of her body.

Subsequently, Mrs. Steffensen commenced this action against Smith, claiming Smith was negligent in dealing with Mr. Burnett and that this negligence caused her injury. At the conclusion of the presentation of evidence, defense counsel moved for a partial directed verdict on the grounds that Smith's failure to deter Mr. Burnett from shoplifting could not, as a matter of law, be a proximate cause of Mrs. Steffensen's injuries. The trial judge granted the motion and incorporated this ruling in his instructions to the jury. At the conclusion of trial, the judge submitted written interrogatories to the jury. After deliberation, the jury found Smith had acted negligently, but Smith's negligence did not proximately cause Mrs. Steffensen's injury.

I. PROXIMATE CAUSE

Mrs. Steffensen's first claim of error is the trial court improperly granted Smith a partial directed verdict on the element of proximate causation. During the trial, Mrs. Steffensen proceeded on two theories of negligence. First, Mrs. Steffensen asserted Smith had been negligent in failing to train its employees to use techniques to "deter" Mr. Burnett from shoplifting and, alternatively, that Smith's employees negligently failed to utilize these techniques in dealing with Mr. Burnett. Second, Mrs. Steffensen claimed Smith was negligent in chasing and attempting to stop Mr. Burnett after he broke away and ran. Mrs. Steffensen argued that both of these acts of negligence endangered the safety of Smith's customers and ultimately caused her injuries.

At the close of evidence, Smith asked the trial judge for a partial directed verdict, ruling that as a matter of law, even if its employees had been inadequately trained about the need for deterrence and failed to utilize deterrence, such failure was not the proximate cause of Mrs. Steffensen's injury. The trial court granted Smith's request and instructed the jury that all Smith's conduct prior to the stop and detention of Mr. Burnett should not be considered by the jury: ¹

You have heard testimony regarding events that occurred prior to the time of the stop of the shoplifter, Mr. Burnett.

You are instructed that none of the actions of the Smith's employees prior to the stop and detention proximately caused plaintiff's injuries.

Therefore, you must not take this testimony into consideration when deliberating and making your decision.

A directed verdict is only appropriate when the court is able to conclude that reasonable minds would not differ on the facts to be determined from the evidence presented. Management Comm. v. Graystone Pines, Inc., 652 P.2d 896, 897-98 (Utah 1982). A directed verdict cannot stand when, reviewing the evidence in a light most favorable to the losing party, "there is a reasonable basis in the evidence and in the inferences to be drawn therefrom that would support a judgment in [the losing party's] favor." Id. at 898; see Penrod v. Carter, 737 P.2d 199, 200 (Utah 1987).

Mrs. Steffensen claims the trial judge's jury instruction concerning pre-apprehension evidence was improper because reasonable minds could differ as to whether a failure to "deter" Mr. Burnett from shoplifting was the proximate cause of her injuries.

In Utah, a negligence claim requires the plaintiff to establish four elements: that the defendant owed the plaintiff a duty; that defendant breached the duty (negligence); that the breach of the duty was the proximate cause of plaintiff's injury; and that there was in fact injury. Reeves v. Gentile, 813 P.2d 111, 116 (Utah 1991). Proximate cause is "that cause which, in natural and continuous sequence, (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause--the one that necessarily sets in operation the factors that accomplish the injury." State v. Lawson, 688 P.2d 479, 482 & n. 2 (Utah 1984). Further, there can be more than one proximate cause of an injury so long as each is a concurrent contributing factor in causing the injury. See Anderson v. Parson Red-E-Mix Paving Co., 24 Utah 2d 128, 467 P.2d 45, 46 (1970); Jacques v. Farrimond, 14 Utah 2d 166, 380 P.2d 133, 134 (1963).

It is well established that the question of proximate cause is generally reserved for the jury. Godesky v. Provo City Corp., 690 P.2d 541, 544 (Utah 1984); Ostler v. Albina Transfer Co., Inc., 781 P.2d 445, 451 (Utah App.1989), cert. denied, 795 P.2d 1138 (Utah 1990). Only in rare cases may a trial judge rule as a matter of law on the issue of proximate causation.

This principle is illustrated by several Utah Supreme Court decisions. In Harris v. Utah Transit Authority, 671 P.2d 217 (Utah 1983), the passenger of a jeep brought an action against a bus company and the jeep driver for injuries sustained in a traffic accident. The trial court granted the bus company a directed verdict, instructing the jury that if they found the jeep driver should have observed the bus prior to the accident, they must find, as a matter of law, that the jeep driver was the sole proximate cause of the accident. On appeal, the plaintiff claimed that a jury could infer that the bus negligently contributed to the accident and pointed to allegations that the bus stopped too rapidly, failed to drive out of the lane of traffic, and had faulty brake lights. Id. at 220. The Utah Supreme Court agreed with the plaintiff and reversed the directed verdict. The Harris court held it improper for the trial judge to have taken the issue of proximate cause from the jury. The court explained: "Where the evidence is in dispute including the inferences from the evidence, the issue should be submitted to the jury." Id.

Likewise, in Jensen v. Mountain States Telephone & Telegraph Co., 611 P.2d 363 (Utah 1980), the trial judge granted defendant summary judgment on the issue of proximate cause in an action where the plaintiff had been injured in an automobile accident. The plaintiff claimed he was unable to see approaching traffic in executing a left-hand turn because a van owned by the defendant utility company negligently blocked his view by remaining in the intersection, and this was an intervening proximate cause of the accident. On appeal, the Utah Supreme Court reversed the summary judgment on the issue of proximate cause. The court held that the issue of proximate cause may only be taken from the jury where reasonable minds could not differ as to what "was or was not the proximate cause of the injury." Id. at 365 n. 4. The court concluded that "in a situation involving independent intervening cause, the primary issue is one of the foreseeability of the subsequent negligent conduct of a third person, and in this case, [the issue of proximate cause] must be resolved by the finder of fact." Id. at 365 (emphasis added).

In Mitchell v. Pearson...