Wilson v. Wal-Mart Stores, Inc., WAL-MART

• Decision Date: 22 April 1999
• Docket Number: Nos. C027518,C027765,WAL-MART,s. C027518
• Citation: 72 Cal.App.4th 382,85 Cal.Rptr.2d 4
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 3808, 1999 Daily Journal D.A.R. 4838 Robin WILSON, Plaintiff and Respondent, v.STORES, INC., Defendant and Appellant. Robin Wilson, Plaintiff and Appellant, v. Wal-Mart Stores, Inc., Defendant and Respondent.

Page 4

85 Cal.Rptr.2d 4

72 Cal.App.4th 382, 99 Cal. Daily Op. Serv. 3808,

1999 Daily Journal D.A.R. 4838

Robin WILSON, Plaintiff and Respondent, v. WAL-MART STORES, INC., Defendant and Appellant.

Robin Wilson, Plaintiff and Appellant, v. Wal-Mart Stores, Inc., Defendant and Respondent.

Nos. C027518, C027765.

Court of Appeal, Third District, California.

April 22, 1999.

Review Denied Aug. 18, 1999.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing May 20, 1999.

Tanke & Willemsen, Tony J. Tanke, Redwood City, Karen Bautista Hobin, Dennis Shore, Stockton, Machado & Cousins, John J. Machado, Modesto, for Plaintiff and Appellant.

Phillips & Spallas, Robert K. Phillips, San Francisco, Diane J. Mason and Camille Calvert, San Francisco, for Defendant and Appellant.

HULL, J.

Plaintiff Robin Wilson slipped in a puddle of water near the garden department of defendant Wal-Mart Stores, Inc. (Wal-Mart). Wal-Mart appeals from a judgment entered following jury trial in favor of Wilson, contending (1) the jury's award of economic damages is not supported by substantial evidence; and (2) the verdict was the result of jury prejudice inflamed by the misconduct of Wilson's counsel during closing argument.

Wilson also appeals, challenging a postjudgment order denying her request for expert witness fees under Code of Civil Procedure section 998 and prejudgment interest under Civil Code section 3291.

We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

We state the facts in the manner most favorable to the judgment. (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 492, fn. 1, 102 Cal.Rptr. 795, 498 P.2d 1043.) Given the parties' respective contentions on appeal, our recitation of the circumstances of Wilson's injury can be brief.

On July 4, 1992, Wilson slipped in a puddle of water near the garden department of the Stockton Wal-Mart store and wrenched her back. She had been pushing a shopping cart slowly through the department near the doorway between the garden and patio departments,

looking at the merchandise. Seconds before she fell, Wilson noticed that her nephew was standing a puddle of water, and warned him not to slip

A garden department employee, Sandra Boda, testified that, on the day Wilson fell, she herself had "stumbled" in "a small stream of water" leaking from a fountain there; because she did not know how to turn off the fountain, Boda placed plastic cones on the wet floor. When another customer later reported water on the floor, Boda failed to investigate because she thought she "knew" what part of the floor was wet. She did not notify any other Wal-Mart employee about the water. Another garden department employee who worked on the day Wilson fell testified that the spigot by which garden department plants were watered would leak if the hose was not screwed on correctly. However, he had not seen water on the floor that day. The spigot was located immediately adjacent to the spot where Wilson fell.

As a result of her fall, Wilson herniated a disk in her lower back, and underwent surgery to remove the disk material in April 1993. The surgery was not successful, in that the herniated disk material remained in her spine after the operation and continued to irritate a nerve root, causing constant pain.

After the surgery, Wilson sued Wal-Mart for negligence and premises liability. ¹

A surgeon specializing in spinal injuries, Dr. Montesano, testified on Wilson's behalf at trial that she will need a second, "much more complicated" spinal operation, which he estimated will cost about $60,000. An orthopedist retained by Wal-Mart agreed that Wilson may need a second surgery, that she did not "improve particularly" with the first surgery, and that the case was "very complicated."

Dr. Montesano testified that a second surgery would have an 80 percent chance of success, although patients whose surgeries are "successful" often require pain management therapy, or additional surgery. For the 20 percent of patients whose conditions do not improve with surgery, Dr. Montesano estimated the costs of further corrective procedures at between $100,000 and $600,000 "depending on what happen[ed]," and opined that $600,000 is a "reasonable figure" for a patient who has "totally failed." The complications arising from an unsuccessful surgery could range from possible infection, which can require "multiple trips back to the operating room," to paralysis.

Wilson also introduced evidence of her loss of income after the fall. Before the injury, Wilson operated a licensed daycare center, "Robin's Nest," in her home. She received the daycare center license in 1990 or 1991 and closed the business in March 1993 just before her back surgery. Her tax returns for that period show net annual taxable income of $3,000, but because her home-based business allowed a number of deductions, her gross income from Robin's Nest was close to $6,000 in 1991, and $9,000 in 1992. At the time of trial, Wilson had not reopened the daycare center, and did not work outside the home. Her lifetime work history included working as a receptionist for $7,000 per year, and performing setup and janitorial work for a school at $8,000 per year.

By special verdict, the jury found Wal-Mart to have been negligent and awarded Wilson $230,000 in economic damages and $120,000 in noneconomic damages, for a total of $350,000. Because the jury also found that Wilson's own negligence contributed 50 percent to her injuries, judgment was entered in Wilson's favor in the amount of $175,000.

Wal-Mart moved for a new trial, on the grounds the jury's verdict was excessive and unsupported by substantial evidence. The trial court denied the motion, ruling that "... the verdict of the jury is within the parameters of the evidence."

Additional facts appear as necessary in the discussion.

DISCUSSION

Wal-Mart's Appeal ^**

Wilson's Appeal

On February 3, 1995, in accordance with Code of Civil Procedure section 998 (further

section references are to the Code of Civil Procedure unless otherwise designated), Wilson served on Wal-Mart an offer to compromise for $150,000, each side to bear its own costs and attorney fees. Wal-Mart made no response to the offer within the 30-day period provided by that statute; accordingly, the offer was deemed rejected. (§ 998, subd. (b).) ⁵

On May 20, 1996, Wilson served a second section 998 offer on Wal-Mart; this time, the settlement price was $249,000, with each side to bear its own costs and fees. That offer also was rejected by Wal-Mart's failure to accept it within the statutory period.

Following the jury verdict of $175,000 in her favor, Wilson filed a memorandum of costs in the amount of $102,512.38, the largest components of which were (1) a claim for prejudgment interest in the amount of $40,514.25, calculated from "2/3/95 to 5/29/97," i.e., from the date of her first statutory offer to the date of the judgment to which Wilson claimed she was entitled by operation of section 998 and Civil Code section 3291; ⁶ and (2) a claim for $30,411.18 for "Models, blowups, and photocopies of exhibits."

Wal-Mart moved to tax costs, objecting that Wilson may not recover prejudgment interest or expert fees because she "failed to obtain a judgment more favorable than the effective CCP § 998 offer." Wal-Mart argued that Wilson's second statutory settlement offer of $249,000 effectively "extinguished" her first offer and, because the $175,000 judgment does not exceed her $249,000 offer, Wilson is entitled to recover neither expert fees nor prejudgment interest computed from the date of the first section 998 offer. ⁷

In support of her cost bill, Wilson responded that her "first CCP § 998 offer is controlling for all purposes," on the ground that contract law principles to the contrary do not apply to section 988 offers where, as here, those principles are inconsistent with the statutory purpose of encouraging settlement. ⁸

After hearing, the trial court granted Wal-Mart's motion to tax the "expert witness fees pursuant to CCP § 998 and pre-judgment interest pursuant to Civil Code § 3291 based on the finding that Plaintiff's second CCP § 998 offer in the amount of $249,000 superseded and extinguished Plaintiff's first CCP § 998 offer in the amount of $150,000 for the purposes of both CCP § 998 and Civil Code § 3291."

Wilson appeals from that order.

She first asserts that, under the cost-shifting provisions of section 998, the consequences of Wal-Mart's having rejected her first statutory offer are not "nullified" by the second section 998 offer.

This assertion presents an issue of statutory interpretation which we review de novo. (Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1997) 60 Cal.App.4th 13, 17, 70 Cal.Rptr.2d 41 [interpreting section 998 and Civil Code section 3291].) In construing section 998, we follow the fundamental rule of statutory construction " 'that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]' [Citations.] In determining such intent, the court must first look to the words of the statute." (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277, 204 Cal.Rptr. 143, 682 P.2d 338.)

As relevant here, former section 998, subdivision (d), provided: "If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the plaintiff, in addition to plaintiff's costs." The plain language of section 998 is thus silent as to the effect of a subsequent statutory offer on a prior statutory offer. (See T.M. Cobb Co. v. Superior Court, supra, 36 Cal.3d at p. 279, 204 Cal.Rptr. 143, 682 P.2d 338.)

In T.M. Cobb Co., the...