Wal-Mart Stores E., L.P. v. Ankrom

• Citation: 854 S.E.2d 257
• Decision Date: 18 November 2020
• Docket Number: No. 19-0666,19-0666
• Parties: WAL-MART STORES EAST, L.P., Petitioner v. Johna Diane ANKROM, Respondent
• Court: Supreme Court of West Virginia

854 S.E.2d 257

WAL-MART STORES EAST, L.P., Petitioner

v.Johna Diane ANKROM, Respondent

No. 19-0666

Supreme Court of Appeals of West Virginia.

Submitted: October 13, 2020

Filed: November 18, 2020

Concurring and Dissenting Opinion of Justice Jenkins November 23, 2020

Jeffrey M. Wakefield, Esq., Erica M. Baumgras, Esq., Mitchell B. Tuggle, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Elbert Lin, Esq., Hunton Andrews Kurth LLP, Richmond, Virginia, Counsel for the Petitioner.

James G. Bordas, III, Esq., Scott S. Blass, Esq., James B. Stoneking, Esq., BORDAS & BORDAS, PLLC, Wheeling, West Virginia, Todd S. Wiseman, Esq., Wiseman Law Firm, PLLC, Vienna, West Virginia, Counsel for the Respondent.

Ancil G. Ramey, Esq., Steptoe & Johnson, PLLC, Huntington, West Virginia, Counsel for Amicus West Virginia Retailers Association.

WALKER, Justice:

A shoplifter collided with Johna Diane Ankrom in the "action alley" of a Wal-Mart in Parkersburg, West Virginia, in February 2015. Ms. Ankrom was severely injured, sued Wal-Mart Stores East, L.P. (Wal-Mart), and, after a jury trial, was awarded approximately $16.9 million in damages. The jury apportioned thirty percent of the fault for Ms. Ankrom's injuries to Wal-Mart and the remainder to Robert Leist, the shoplifter and third-party defendant. Post-trial, Wal-Mart challenged the jury's findings that it had breached a duty owed to Ms. Ankrom and that Mr. Leist's actions were not the sole proximate cause of her injuries. Wal-Mart also claimed that evidentiary and instructional errors necessitated a new trial. The circuit court denied Wal-Mart's motions. Over Ms. Ankrom's objection, the court entered judgment against each defendant according to its apportioned fault. And, over Wal-Mart's objection, the court granted Ms. Ankrom prejudgment interest on medical expenses.

On appeal, Wal-Mart reprises its arguments in support of its motion for judgment as a matter of law and motion for a new trial. Those arguments are no more persuasive on appeal than they were below. As for the judgment order, we see no error in either the circuit court's entry of judgment against Wal-Mart for only thirty percent of the jury verdict or award of prejudgment interest on medical expenses to Ms. Ankrom. So, we affirm the circuit court's order denying Wal-Mart's posttrial motions and the judgment order.¹

I. FACTUAL AND PROCEDURAL HISTORY

Ms. Ankrom sued Wal-Mart in May 2015 after she sustained serious injuries in a collision with a fleeing shoplifter, Mr. Leist, in the Parkersburg Wal-Mart. She alleged, generally, the pursuit of Mr. Leist and attempt to apprehend him by Wal-Mart employees directly and proximately caused her serious injuries.² Wal-Mart pleaded, among other defenses, that Ms. Ankrom's injuries were "the result of independent and/or superseding causes over which [it had] no control or in any way participated." And, in November 2015, Wal-Mart filed a third-party complaint against Mr. Leist for contribution.

The parties tried Ms. Ankrom's claim against Wal-Mart in February and March 2019, approximately three years after she filed her complaint. Wal-Mart surveillance cameras captured the majority of events preceding Ms. Ankrom's injury, so the actual occurrence and sequence of those events was not contested. Instead, the dispute at trial concerned whether Wal-Mart employees’ stop of Mr. Leist had complied with Wal-Mart's internal policy on apprehending shoplifters, "Investigation and Detention of Shoplifters Policy (AP-09)," (AP-09 Policy), and whether Mr. Leist's flight inside the store was foreseeable to those same employees.³

Relative to those disputes, the jury heard testimony from four Wal-Mart employees: Nate Newbanks, asset protection associate; Joe Daniel, asset protection manager;⁴ Amy Edgar, customer service manager and eyewitness; and Kevin Ohse, store manager. Ms. Ankrom;⁵ her daughter, Sierra Thomas; and her son, George Ankrom, also testified.⁶ The jury also heard portions of deposition testimony from Wal-Mart's corporate representative, Melissa Wacha, regarding Wal-Mart's shoplifting policies. And, the parties offered "dueling" experts, James Murphy for Ms. Ankrom, and William Birks for Wal-Mart. Two exhibits were entered into evidence: a DVD containing Wal-Mart surveillance video of the events of February 23, 2015, and the AP-09 Policy.

Trial testimony and surveillance footage established the following: On February 23, 2015, Mr. Newbanks observed Mr. Leist pocket a pair of auto mechanic gloves.⁷ Mr. Leist walked to the front of the store, and Mr. Newbanks followed. As captured by Wal-Mart surveillance cameras, Mr. Newbanks stopped Mr. Leist in the vestibule that separated the interior of the store from the parking lot. Mr. Newbanks positioned himself in front of Mr. Leist, between him and the door leading from the vestibule to the parking lot. Mr. Daniel, along with at least two other Wal-Mart employees, surrounded Mr. Leist. As shown by the surveillance cameras and confirmed by witness testimony, Mr. Daniel grabbed Mr. Leist's arm. At some point, Mr. Leist returned the gloves to Mr. Newbanks. Again, as shown by the surveillance cameras and confirmed by witness testimony, Mr. Leist then tried to get around Mr. Newbanks and Mr. Daniel, leading to a physical altercation, struggle, or scuffle—as characterized by various witnesses—in which the two men grabbed Mr. Leist's jacket, restrained him, and then spun him around to face the store's interior. According to Ms. Edgar, it appeared as if Mr. Newbanks and Mr. Daniel were wrestling Mr. Leist back toward the store's entry.⁸

After Mr. Leist "finally ... calmed down," the two men released their hold on him. He then complied with the request of Mr. Newbanks and Mr. Daniel to go back inside the store. As the three men reentered the store's interior through the vestibule doors, surveillance footage shows that Mr. Newbanks walked behind Mr. Leist and Mr. Daniel walked to his left. Seconds after reentering the store, Mr. Leist ran from Mr. Newbanks and Mr. Daniel. Ms. Ankrom's expert, Mr. Murphy, opined that Mr. Leist's flight was the "culmination of everything else that took place beforehand. The way it was stopped, the number of people, the struggle, and then they take a very relaxed atmosphere with it. That's why he was able to run." On the other hand, Wal-Mart's expert, Mr. Birks, opined that when a shoplifter like Mr. Leist decides to bolt and run, it is the shoplifter's own decision. He further testified that it was Mr. Leist's own "decision to bolt into the store. It wasn't a loss prevention management's efforts [sic.]. It was his and his alone effort to bolt back into the store."

Surveillance videos show that after Mr. Leist fled from Mr. Newbanks and Mr. Daniel, he turned into "action alley," a lane that runs perpendicular to the front of the store, delineated at the back by a wall of merchandise and to the front by the checkout lanes that funnel shoppers towards the vestibule. Store surveillance cameras captured that immediately upon turning into action alley, Mr. Leist collided with Ms. Ankrom's shopping cart. Ms. Ankrom tried to control the cart, but her knee gave out. She fell to the floor, and the cart came down on top of her. Ms. Ankrom's young granddaughter—who had been riding in the shopping cart—was also thrown to the floor, although she was not injured.

Immediately after the collision, Ms. Ankrom was transported to Camden Clark Memorial Hospital in Parkersburg and treated there for a severe attack of angina. After experiencing increasing pain over the next two weeks, she was life-flighted to the Cleveland Clinic for surgery to treat bruising, necrosis, and microperforations in her small intestine. Since 2015, Ms. Ankrom has experienced over twenty inpatient hospitalizations, six surgeries, and other emergency room visits. As of the date of trial, her physicians were considering her for an intestinal transplant.

At the conclusion of evidence, the circuit court held a final instruction conference on March 1, 2019.⁹ While Wal-Mart and Ms. Ankrom agreed on the majority of instructions to be delivered, they disagreed on the inclusion of an intervening/superseding cause instruction in the charge. The circuit court denied Wal-Mart's request to give the instruction. On March 4, 2019, the jury returned a verdict finding that Wal-Mart's negligence was a proximate cause of the injuries Ms. Ankrom sustained on February 23, 2015. The jury also found that Mr. Leist had been negligent, and that his negligence also proximately caused Ms. Ankrom's injuries. The jury found that Wal-Mart was thirty percent at fault for Ms. Ankrom's injuries and that Mr. Leist bore the remaining seventy percent of fault. The jury awarded damages to Ms. Ankrom totaling $16,922,000.

On March 28, 2019, Ms. Ankrom filed a motion for entry of judgment order seeking judgment against Wal-Mart for the entire damages award, but with a right of contribution against Mr. Leist in the amount of seventy percent of the jury verdict, $11,845,400. Wal-Mart responded that under West Virginia Code § 55-7-24 (2005), it was responsible only for that portion of the verdict that corresponded to its comparative fault as determined by the jury. The circuit court agreed with Wal-Mart, reasoning that by enacting § 55-7-24 in 2005, the Legislature created a hybrid system of liability that mandated (1) that Mr. Leist, although a third-party defendant, count as a defendant for purposes of the statute; and (2) entry of judgment severally against Wal-Mart and Mr. Leist. On April 12, 2019, the circuit court entered a lengthy order memorializing that reasoning. That same day, the court entered judgment against Mr. Leist and Wal-Mart severally, in the amounts of $5,076,600 against Wal-Mart and $11,845,400 against Mr. Leist. The court also awarded Ms. Ankrom four percent, simple interest on her past medical expenses ($2,500,000) apportioned between Wal-Mart and Mr. Leist.

On April 26,...