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Shoup v. Wal-Mart Stores12/13/2000
all on the retail floor:
"The challenged specification of negligence, which treated the unloading of rugs as a dangerous act in itself, placed before the jury an erroneous theory of the defendant's duty. It is no more reasonable to argue that the defendant had a duty not to unload rugs during business hours where customers were present than it would be to argue that a grocery store has a duty not to restock its shelves during business hours." 253 Or at 103.
The same reasoning applies here. Just as a retailer does not have "a duty not to restock its shelves during business hours," id., Wal-Mart does not have a duty not to position greeters on its retail floor. Although defendant's employees are obligated to perform their function in a nonnegligent manner, the fact that an employee who interacts with the public might act negligently does not give rise to a direct premises liability claim against the store owner. The trial court thus erred in submitting plaintiff's direct liability claim to the jury.
We proceed, then, to whether a remand for a new trial is required under Whinston's "we can't tell" principle. Whinston, 309 Or at 359. Under that rule, when multiple claims or specifications are submitted to the trier of fact and "the court cannot determine whether the verdict was based on an allegation supported by the evidence or on one unsupported by the evidence, the result is a new trial." Id. That principle applies equally to cases when one or more allegations submitted to a jury are determined on appeal to be insufficient as a matter of law. See Waddill v. Anchor Hocking, Inc., 149 Or App 464, 479, 944 P2d 957 (1997), rev'd on other grounds, 330 Or 376, 8 P3d 200 (2000). Given our conclusion that specification 5(b) was erroneously submitted to the jury and the jury's rendition of a general verdict, Whinston would seem to compel a remand for a new trial.
Plaintiff argues, however, that defendant is precluded from invoking Whinston because defendant opposed plaintiff's proposed special verdict form at trial. Plaintiff asserts, particularly, that defendant's response to her special verdict form constituted either invited error or a waiver of the "we can't tell" rule. Before addressing the merits of those arguments, we recount what transpired at trial.
After the trial court denied defendant's motions against plaintiff's direct liability claim, the parties submitted proposed verdict forms. Defendant's form presented the question of defendant's negligence in one generalized question:
"1. Was the Defendant negligent in at least one of the respects claimed by Plaintiff which caused damage to Plaintiff?"
Conversely, plaintiff's proposed form read, in pertinent part:
"1. Was defendant, Wal-Mart Stores, Inc., negligent in one or more of the respects claimed in plaintiff's Complaint which caused damage to the plaintiff?
"Answer: __________________ (Yes or No).
"2. Was defendant's employee, Charles Niver, negligent in one or more of the respects claimed in plaintiff's Complaint which caused damage to the plaintiff?
"Answer: __________________ (Yes or No)."
Defense counsel initially objected to plaintiff's form on the basis that it required the jury to consider the issue of defendant's negligence twice:
" e would object to using the two question , because I think it unfairly highlights or forces the jury to consider negligence twice, which in this case we only have one defendant; it's Wal-mart. Instructions have been given that Mr. Niver is an employee of the company and therefore his acts would be imputed to Wal-Mart, and therefore, all we need is one
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