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English v. Wal-Mart Stores12/19/2000
72 OBJ 420
As Modified: 01/29/2001
Mandate Issued: 01/24/2001
APPEAL FROM THE DISTRICT COURT OF GARVIN COUNTY, OKLAHOMA HONORABLE NOAH EWING, JUDGE REVERSED
Defendant/Appellant Wal-Mart Stores, Inc. (Wal-Mart) appeals from the trial court's decision granting a new trial to Plaintiff/Appellee Barbara English after a jury verdict was entered in favor of Wal-Mart. Because we find that the trial court abused its discretion in granting a new trial, we reverse.
English filed suit against Wal-Mart October 10, 1997. English alleged she was injured when something fell on her head while she shopped at the Pauls Valley Wal-Mart store October 9, 1995. English also filed an application to file her petition out of time. English argued that her counsel's legal assistant entered the Garvin County Courthouse at 4:20 p.m. on October 9, 1997 and discovered that the court clerk's office was already closed. English further alleged that the legal assistant located Judge Candace Blaylock's bailiff who accompanied her to the closed court clerk's office and that they looked in the window and discovered that the court clerk's office clock was fast and that the legal assistant was in fact at the court clerk's office before the 4:30 p.m. official closing time of the Garvin County Court Clerk's office. A court minute filed October 10, 1997 by Judge Blaylock found good cause existed for the filing on October 10, 1997 to relate back to October 9, 1997, so that the petition came within the two year statute of limitations. See 12 O.S.1991 ยง95(3).
On October 29, 1997, Wal-Mart filed its motion to dismiss based on the statute of limitations, also styled as a motion to vacate the order allowing the petition to be filed out of time. English filed her response November 13, 1997. The motion to dismiss was overruled December 5, 1997.
Jury trial was held October 26-27, 1999. At trial, English testified that on October 9, 1995 she went to the Paul's Valley Wal-Mart store during her work lunch break in order to buy dog food. English explained that as she was rummaging through the cans of dog food looking for a particular flavor, something hit her on the head so hard that her knees buckled. English then screamed and a woman, who English believed to be a Wal-Mart employee, came to her aid and helped her lay down. English further explained that as she was lowered to the floor she saw a white box which she believes is the item that struck her. English stated that she then passed out and could not describe the box further. English testified that after she passed out, the next thing she remembers is waking up in the hospital emergency room. English conceded that she had never seen a box at Wal-Mart like the one she believed hit her either before or after her injury .
English further testified that when she woke up at the hospital she had pain in her head and neck, saw flashing bright lights and was nauseous. English was admitted to the hospital and was released two days later. English testified that she was diagnosed with a bulging disc in her neck. The medical records from English's emergency room visit following the alleged injury at Wal-Mart indicate that she had no bruising.
English testified that in 1997 she suffered a whiplash injury in a car accident. English testified that she had ridden horses all of her adult life, including after her alleged injury at Wal-Mart. English introduced photographs of herself riding horses and attending her grandsons' baseball games taken after her alleged injury at Wal-Mart. English explained that she had suffered numerous injuries, including broken ribs and a broken collar bone during her yea
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