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Conner v. Menard11/15/2004
Brandy Conner appeals, and Menard, Inc. cross-appeals from the jury verdict awarding Conner $281,000 for injuries sustained while shopping at Menard, Inc.'s Ankeny store. REVERSED AND REMANDED FOR NEW TRIAL.
I. Background Facts and Proceedings
Brandy Conner sued Menard, Inc. to recover personal injury damages she sustained while shopping at Menard's Ankeny store on October 13, 1999. Conner alleged Menard was at fault under alternative theories of specific and general negligence.
The record indicates that Conner and her husband purchased some insulation at Menard and Brandy drove their vehicle to the designated loading area where Menard's employees were waiting to assist them.
At trial, former Menard's employee Steve Stonehocker testified:
A: . . . Me and another gentleman climbed up. Before we climbed up, [the Conners'] vehicle was parked in the aisle right in front of [the stack of insulation]. We asked them to move. They said it would be all right, to just go ahead and get it. We climbed up to get it, and it bounced off, and a piece of it - I think a piece of it hit her when it came down after it hit their topper first.
Q: You saw that? You saw all of that?
A: (The witness nodded his head affirmatively.)
Q: Were you the one that shoved it off?
A: I don't remember which one of us did.
On cross-examination Stonehoker testified:
Q: Okay. Did you say someone asked the folks that were getting insulation to move?
A: Yeah, we both - I think we both did.
Q: And move from there where?
A: From the front of the bay. Just to pull ahead or back up enough so it would have plenty of room for when it came down. They weren't sitting right on top of it. They were back a little bit, but even so, I didn't want it to hit their vehicle.
Q: And then what happened after you asked them to move?
A: We agreed - They said they didn't want to, so we went ahead, because they were customers. Didn't want to make a scene, so we went ahead and got it down, and when it came down, I remember it -I think they had a topper, and I think it bounced off their topper, and a piece of it or so hit her.
Stonehoker's version of events is essentially undisputed. Both Conner and her husband testified they saw two employees climb up a stack of insulation and the next thing they saw was a roll of insulation falling towards them.
At the conclusion of the evidence, the trial court submitted Conner's alternative theories of negligence to the jury. The relevant jury instruction provides, in part:
If you find the plaintiff has proven both requirements of [general negligence], you may conclude the defendant was negligent, but you are not required to do so. If the plaintiff fails to prove either of the basic requirements, the plaintiff cannot recover damages under the general negligence claim.
The jury returned special verdict forms finding both Menard and Conner were at fault. The jury assigned Conner twenty percent of that fault and Menard eighty percent. Conner was awarded $281,000 in total damages, including $14,000 for past medical expenses, $100,000 for past pain and suffering, $17,000 for past lost wages, and $150,000 for loss of future earning capacity. The jury made no awards for past loss of function of body, future loss of function of body, or future pain and suffering.
In combined motions for judgment notwithstanding the verdict, new trial, and remittitur, Menard argued the jury's award of loss of future earning capacity was inconsistent with its failure to aw
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