Wal-Mart Stores, Inc. v. Blaylock

• Decision Date: 18 May 1992
• Docket Number: No. 82A04-9102-CV-38,WAL-MART,82A04-9102-CV-38
• Citation: 591 N.E.2d 624
• Parties: STORES, INC., Appellant-Defendant Below, v. Delmar E. BLAYLOCK, Appellee-Plaintiff Below. 1
• Court: Indiana Appellate Court

Page 624

591 N.E.2d 624

WAL-MART STORES, INC., Appellant-Defendant Below, v. Delmar E. BLAYLOCK, Appellee-Plaintiff Below.

No. 82A04-9102-CV-38. ¹

Court of Appeals of Indiana,

Third District.

May 18, 1992.

Transfer Denied Aug. 25, 1992.

Melissa S. Mattingly, Fine & Hatfield, Evansville, for appellant-defendant.

Robert L. Simpkins, Robert L. Simpkins & Associates, Evansville, for appellee-plaintiff.

STATON, Judge.

Wal-Mart Stores, Inc. appeals a judgment in favor of Delmar E. Blaylock, raising three issues for our review:

I. Whether the trial court properly granted a judgment on the evidence at the close of the defendant's case as to the comparative negligence of Blaylock.

II. Whether the trial court erred in refusing a number of the defendant's instructions on comparative fault and in giving a number of the plaintiff and the court's instructions over Blaylock's objection.

III. Whether the jury's verdict was excessive.

We affirm.

On August 30, 1988, Delmar Blaylock, a seventy-five year old retired gentleman, was walking down an aisle in the Boonville Wal-Mart store when he heard a noise. He turned to find that a stack of decorative trunks arranged on an "end cap" at the end of an aisle was falling toward him. He spun and warded the boxes away from him, but in stepping back, hit his foot against a display on the opposite side of the aisle and sustained injuries.

Blaylock brought suit against Wal-Mart, and trial was had before a jury. At the close of Wal-Mart's case, the trial court granted Blaylock's motion for judgment on the evidence as to his comparative negligence, finding that there was no evidence that Blaylock was at fault in the incident. Accordingly, the trial court did not instruct the jury that it could consider the comparative fault of Blaylock in reaching its verdict. The jury returned a verdict for $50,000 and judgment was entered on the verdict. Wal-Mart appeals.

I. Judgment on the Evidence

On appeal, we use the same standard of review as the trial court in determining the propriety of a judgment on the evidence. Dahlin v. Amoco Oil Corp. (1991), Ind.App., 567 N.E.2d 806, 810, transfer denied. When the trial court considers a motion for judgment on the evidence, it must view the evidence in a light most favorable to the non-moving party. Judgment may be entered only if there is no substantial evidence or reasonable inference to be drawn therefrom to support an essential element of the claim. Id.; Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223, 1224.

Wal-Mart argues that the trial court erroneously granted judgment on the evidence on the issue of Blaylock's comparative fault, arguing that based upon the evidence in the case, the jury could draw an inference that Blaylock was contributorily negligent. Specifically, it points to testimony: that Blaylock saw no one other than himself in the area at the time of the accident; that there was no evidence that the trunks were in disarray at the time of the accident; that the trunks were in a high-traffic area and had been there for some time but had not yet fallen; and that only the trunks in the row closest to Blaylock fell. Wal-Mart also questions Blaylock's description of the incident, and alludes to the fact that Blaylock went and picked up some motor oil before reporting the accident.

We cannot say that this evidence raises an inference that Blaylock was contributorily negligent. Wal-Mart concedes that the uncontradicted evidence revealed that Blaylock was walking in the center of the four foot wide aisle when the accident happened, about two feet away from the display. There was no evidence whatsoever that Blaylock bumped or even touched the display. Wal-Mart supports its argument by citing the lack of evidence of a number of explanatory factors, which it contends permits an inference that Blaylock's negligence caused the incident. In Lewis by Lewis v. Bonahoom (1991), Ind.App., 583 N.E.2d 175, we rejected the contention that a lack of evidence on a proposition allows the trier of fact to draw an inference that its converse occurred. A jury can infer negligence from the facts proved, but cannot infer the existence of facts which would constitute negligence. Northern Indiana Public Service Co. v. Stokes (1986), Ind.App., 493 N.E.2d 175, 180. Thus, the evidence recited by Wal-Mart does not support an inference that Blaylock knocked over the trunks and caused his own injury.

Wal-Mart also notes that "fault" is statutorily defined to include "unreasonable failure ... to mitigate damages." IND.CODE 34-4-33-2(a). Blaylock's doctor prescribed Motrin to help alleviate the pain in his foot from the accident. Wal-Mart argues that the evidence that Blaylock ceased taking the Motrin for a time constituted unreasonable failure to mitigate damages, and therefore justified submitting Blaylock's contributory fault to the jury. A review of the record, however, reveals that Blaylock had ceased taking the Motrin for a period of time while he had the flu because he felt it might have been causing or aggravating his headaches and nausea, and resumed taking it after he recovered. We fail to see how this evidence, viewed in any light, could constitute an unreasonable failure to mitigate the damages.

We conclude that the trial court did not err in granting Blaylock's motion for judgment on the evidence on the issue of Blaylock's contributory fault.

II. Instructions

In considering whether any error results from the giving or refusal of instructions, we consider 1) whether the tendered instruction correctly states the law, 2) whether there is evidence in the record to support giving the instruction, and 3) whether the substance of the instruction is covered by other instructions which are given. Picadilly, Inc. v. Colvin (1988), Ind., 519 N.E.2d 1217, 1219; State v. Edgman (1983), Ind.App., 447 N.E.2d 1091, 1108, transfer denied.

Wal-Mart makes two arguments regarding instructions. The first focuses on the fact that the trial court did not instruct the jury on Blaylock's comparative fault because it ruled in favor of Blaylock on the motion for judgment on the evidence on that issue. The trial judge also refused a number of Wal-Mart's comparative fault instructions, and Wal-Mart withdrew some instructions based upon the trial court's ruling on the motion for judgment on the evidence. We held above that the trial court did not err in granting Blaylock's judgment on the evidence with regard to contributory fault, as there was no evidence which would support a finding of fault on the part of Blaylock. Thus, Wal-Mart's argument does not pass the second prong of the above test--there is no evidence in the record to support giving Wal-Mart's instructions.

Wal-Mart's second argument relates to its duty of care. The trial court gave a modified version of plaintiff's instruction number 7:

The Court instructs the jury that the Defendant, Wal-Mart, had and has an active and continuous duty and obligation to inspect their premises from time to time in a reaonable [sic] effort to discover and remedy defects that make said premises unsafe for use by customers such as the Plaintiff, Delmar Blaylock. The Defendant, Wal-Mart, cannot ignore a dangerous condition and escape...