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Shoup v. Wal-Mart Stores12/13/2000
lf, as a matter of law, be negligent." The trial court denied that motion.
Thereafter, during preclosing argument colloquy on jury instructions, plaintiff offered a special verdict form that sought to distinguish between the direct liability and vicarious liability claims. Defendant, who had submitted a general verdict form, objected to plaintiff's proposed form, and in response--and before the court ruled on defendant's objections or on the general propriety of the proposed form--plaintiff withdrew the proposed special verdict form. The jury subsequently returned a verdict for plaintiff, awarding economic damages of $2,099 and non-economic damages of $25,000.
On appeal, defendant raises two interrelated assignments of error: (1) The trial court erred in denying defendant's motion for a directed verdict against paragraph 5(b) in that there was no evidence to support the allegation that defendant had, in fact, directed Niver to stand and remain in a position creating an obstacle to customers. (2) The court erred in denying defendant's motion to strike or dismiss paragraph 5(b) in that the facts alleged there do not state a claim for negligence under Oregon law. Defendant further contends that, because the jury returned a general verdict, under the "we can't tell rule" the submission of the flawed direct liability specification requires a new trial. See Whinston, 309 Or at 359.
Plaintiff counters that defendant, by its objections to the proposed special verdict form, forewent any ability to invoke the "we can't tell" principle on appeal. That is, plaintiff reasons that, but for defendant's objections, the jury would have responded to the special verdict form and "we would be able to tell" the basis of the verdict. Plaintiff further asserts that, in all events, as buttressed by the proof adduced at trial, paragraph 5(b) was legally and factually sufficient.
Thus, the appeal turns on two issues. First, should the direct liability specification, paragraph 5(b), have been submitted to the jury? Second, even if not, in these circumstances is defendant entitled to the benefit of the "we can't tell" principle? We address each issue in turn.
When a defendant assigns error to the denial of a motion challenging the sufficiency of the pleadings at the conclusion of trial on the merits, we "consider the whole record, including evidence introduced by the defendant, to determine whether the plaintiff presented a prima facie case." Scholes v. Sipco Services & Marine, Inc., 103 Or App 503, 506, 798 P2d 694 (1990). We view the evidence in the light most favorable to the nonmoving party, extending to that party the benefit of all reasonable inferences that may be drawn from the evidence. Faverty v. McDonald's Restaurants of Oregon, Inc., 133 Or App 514, 521, 892 P2d 703 (1995), rev dismissed 326 Or 530 (1998) (applying that standard to review of denials of motions for directed verdict and to dismiss following trial on the merits). We conclude that, even as amplified by the evidence presented at trial, plaintiff's direct liability claim against Wal-Mart was insufficient as a matter of law.
On appeal, as before the trial court, the parties both characterize plaintiff's direct liability claim, and particularly specification 5(b), as sounding in premises liability. Wollston v. Wells, 297 Or 548, 557-58, 687 P2d 144 (1984), describes the law of premises liability as it applies to the duty of a storekeeper to their customers:
"In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise [due care] to discover conditions of the premises that create an unreasonable risk o
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