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Winfrey v. Downtown Delicatessen12/16/1998
9412-08239
Appeal from Circuit Court, Multnomah County. Marc Abrams, Judge pro tempore.
Argued and submitted March 18, 1998.
Judgment affirmed; supplemental judgment denying plaintiff's motion for costs, attorney fees, and sanctions vacated.
LINDER, J. This is a personal injury action in which plaintiff sought damages for injuries she sustained from a blow to her jaw. While in a delicatessen, plaintiff and another customer became involved in an altercation. Defendant Ted Papas, an employee and co-owner of the delicatessen, intervened and, in responding to the altercation, struck plaintiff in the jaw. Plaintiff sued Papas for negligence and Downtown Delicatessen, Inc. (Delicatessen) for vicarious liability and negligent retention. As to all three claims, plaintiff sought identical damages for alleged medical and dental expenses, emotional distress, and lost earning capacity. Before trial, the trial court granted partial summary judgment for Delicatessen on the negligent retention claim. The claims against Papas for negligence and against Delicatessen for vicarious liability were tried to a jury. The jury found for plaintiff on both claims, awarding her $56,700 in damages. Plaintiff appeals, assigning error to the trial court's grant of partial summary judgment and to the trial court's denial of plaintiff's post-trial motion for costs and fees as monetary sanctions for alleged discovery violations. We affirm the entry of partial summons judgment and vacate the supplemental judgment denying costs, attorney fees, and sanctions. As to plaintiff's first assignment of error--whether the trial court erred in granting partial summary judgment--defendants argue as a threshold matter that we should not reach the issue because it is moot. They contend that plaintiff received full compensation when she accepted payment of the judgment and, therefore, we would be resolving merely an abstract question without practical effect. Defendants also characterize the problem as one of waiver, based on plaintiff's acceptance of the benefits of the judgment. Plaintiff, in response, argues that she has additional damages that were not placed before the jury on her negligence and vicarious liability claims. She urges that this appeal can improve her position because there is a potential, upon trial of the negligent retention claim, for her to obtain further compensation for damages arising from her injuries.
Because a ruling for plaintiff on her challenge to the grant of summary judgment on the negligent retention claim could result in a remand for trial on that claim, this is not a situation where we are called on to decide a purely abstract question of law, without any potential to afford practical relief. Thus, the problem is not one of mootness. See generally State ex rel Mult. Co. ESD v. Dooley, 295 Or 138, 664 P2d 417 (1983). Nor is the problem accurately described as a waiver of plaintiff's right to appeal by "acceptance of the benefits of the judgment." See Graf v. Don Rasmussen Co., 39 Or App 311, 314, 592 P2d 250, rev den 286 Or 521 (1979). A Conclusion that the negligent retention claim should have been submitted to the jury would not require reversal or retrial on plaintiff's other theories of liability. Thus, plaintiff need not risk what she has already won to challenge the summary judgment on her negligent retention claim. See id.
Although we disagree with defendants' characterization of the problem, we do agree with defendants that plaintiff may not now proceed on her third theory of liability and attempt to improve her evidence on her damages. The real issue is whether, even assuming that the trial court erred in granting partial summary judgment, t
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