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Shoup v. Wal-Mart Stores12/13/2000
Argued and submitted September 8, 2000.
Reversed and remanded for a new trial.
Defendant Wal-Mart appeals from an adverse judgment in a personal injury action. Defendant contends that: (1) the trial court erroneously submitted a deficient specification of negligence to the jury; and (2) because the jury rendered a general verdict, defendant is entitled to a new trial under the "we can't tell" rule of Whinston v. Kaiser Foundation Hospital, 309 Or 350, 357, 788 P2d 428 (1990). Plaintiff responds that the challenged specification, as refined and proved at trial, is sufficient, and that in all events, defendant, in objecting to a special verdict form that plaintiff's counsel proffered to the trial court, abdicated any future invocation of the "we can't tell" rule. We agree with defendant and, consequently, reverse and remand for a new trial.
Viewed most favorably to plaintiff as the prevailing party, the record establishes the following material facts: Plaintiff Mable Shoup and her husband were regular customers of the Wal-Mart store in North Salem. On February 15, 1996, plaintiff, who was then 89 years old, entered the store with her husband through the garden entrance. The aisle leading into the store from that entrance was six to eight feet wide, with customer and cart traffic going in both directions entering and exiting the store. Shopping carts were stored near the entry, further narrowing the usable aisle way. Pedestrian and cart traffic that day was heavy.
Charles Niver was employed by Wal-Mart as a "greeter." Niver's primary functions were "greeting people, helping people, and security." Niver received periodic performance reviews and, on one occasion, had been informed that he "needed to be more aware of what goes on behind you."
As the Shoups entered the store, they saw Niver standing in the aisle, talking with another customer. Plaintiff attempted to get past Niver by going between him and the row of shopping carts--a space approximately three feet wide. As plaintiff attempted to pass behind him, Niver stepped back suddenly, striking plaintiff in the face with his elbow and knocking her to the ground. Plaintiff was rendered momentarily unconscious by the fall, suffered extensive bruising and soft-tissue injuries, and was taken to the hospital thereafter.
Plaintiff brought this action, alleging two alternative claims for relief. First, she alleged that Wal-Mart was directly liable on a variety of grounds. At the core of this appeal is paragraph 5(b) of the complaint, in which plaintiff alleged that Wal-Mart was negligent in:
"Instructing or requiring persons in the position of greeter to stand and remain in the customer pathway thereby creating an obstacle to customers entering its stores."
Second, plaintiff alleged that Wal-Mart was vicariously liable for the negligence of its employee, Niver:
"6(a) In failing to use reasonable care when proceeding through the store where he knew or should have known customers would be constantly entering the store, and would be present in his pathway
"(b) In failing to keep a proper lookout when moving through aisles where customers were located, and
"(c) In failing to keep reasonable control of his body by turning so abruptly as to constitute a danger to others nearby where he knew or should have known customers were entering the store."
At trial, after both parties had rested, defendant moved "to dismiss or strike" the disputed direct liability specification contained in paragraph 5(b), arguing that "merely by having a greeter or an employee positioned near the entrance of the store cannot, in and of itse
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