No. 89-490
IN THE SIJPREME COURT OF THE STATE OF MONTANA
1990
RAMONA LARSON,
Plaintiff and Appellant,
-vs-
K-MART CORPORATON,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward Mcbean, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
Lon J. Dale and Brian J. Smith; Milodragovich, Dale &
Dye, Missoula, Montana
For Respondent:
Molly R. Shepherd; Worden, Thane & Haines, Missoula,
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- Montana
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Submitted on Briefs: Jan. 25, 1990
Decided: February 20, 1990
- Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
Larson appeals the denial of motions for judgment
notwithstanding the verdict and for a new trial entered by the
District Court of the Fourth Judicial District, Missoula County,
Montana. We affirm.
Appellant raises the following issues:
1. Did the ~istrictCourt err in denying plaintiff ' s motion
for new trial pursuant to Rule 59(a), M.R.Civ.P., and § 25-11-
102(1), MCA, based upon the following grounds:
A. The District Court erroneously allowed evidence of the
number of customers who had gone through K-Mart check stands
for the first hour of operation on July 15, 1987.
B. The District Court erred in submitting jury instructions
modified to include the word "accident1'in lieu of "injury."
C. The District Court erred in giving mere accident
instructions where a res ipsa factual circumstance existed.
D. The District Court erred in failing to instruct the jury
pursuant to the applicable rules of law from Pimental v.
Roundup Co. (Wash.App. 1982), 649 P.2d 135.
2. Did the District Court err in denying plaintiff's motion
for judgment notwithstanding the verdict, when, in applying the
court's instruction no. 27, the only viable conclusion is that the
defendant was negligent as a matter of law.
The Missoula K-Mart store opened for business at 9:00 a.m. on
July 15, 1987. Appellant arrived at K-Mart approximately five
2
minutes after it opened. On that day, K-Mart was conducting one
of its biggest half-price sales of the year. Appellant had gone
to K-Mart in response to the outdoor furniture sale advertisement
she had read in the morning paper. After entering K-Mart,
appellant proceeded directly to the outdoor furniture display. At
approximately 9:10 to 9:15 a.m., while walking down an aisle near
the outdoor furniture display, appellant slipped on a small amount
of dark liquid on the floor and fell.
Appellant alleged that K-Mart's negligence resulted in the
dark liquid's presence on the floor when she slipped and fell.
Because appellant's injuries had not stabilized, the parties agreed
to bifurcate the case and submit only the liability question to the
jury, reserving the damage issue.
At trial, much of the testimony related to who was more likely
to have caused the spill, a customer or a K-Mart employee.
Appellant contended that a K-Mart employee caused the spill. K-
Mart contended that a customer caused the spill and that K-Mart
could not have reasonably been expected to be aware of the spill.
As well, K-Mart presented evidence regarding the measures it
employs to prevent accidents such as appellant's. In rebuttal,
appellant presented evidence of instances prior to appellant's
accident where K-Mart employees had not followed the prescribed
policies. The jury returned a verdict in K-Mart's favor.
Appellant alleges four points of error in the District Court's
denial of appellant's motion for a new trial. The decision "to
grant or deny a new trial is within the sound discretion of the
trial court, (citation omitted), and will not be overturned absent
a showing of manifest abuse of discretion (citation omitted) ."
Walter v. Evans Products Co. (1983), 207 Mont. 26, 30-31, 672 P.2d
613, 616. We hold that the District Court did not abuse its
discretion in denying appellant's motion for a new trial.
First, appellant contends that the District Court erred in
allowing respondent to present testimony that 131 customers went
through the check-out stands between 9:00 and 10:00 a.m. on July
15, 1987. K-Mart regularly keeps an hourly breakdown of customers
through the check-out stands for staffing purposes. Appellant
objected to this testimony as prejudicial and misleading because
it included customers in the store after appellant's fall.
However, the record discloses K-Mart did not offer the evidence to
establish that 131 customers were in K-Mart at 9:lO-9:15 a.m.
Also, the record discloses that K-Mart does not retain similar
records for any shorter time periods.
The number of customers in the store was clearly relevant to
the issue of who likely caused the spill. Appellant's counsel had
ample opportunity during cross-examination and closing argument to
put the 131-customer evidence in context. The District Court did
not err in admitting the evidence.
Second, appellant argues that the District Court erred by
submitting jury instructions that included the word "accidentM in
lieu of 'tinjury" in five of the instructions. Apparently the
substitution occurred as a result of the parties' agreement not to
mention appellant's injuries or damages. Appellant contends that
the substitution of the word "accidentn for "injury1' conveyed to
the jury the connotation of no liability. Even if the word
I'accident1'tainted those instructions, the other instructions and
verdict form corrected any misapprehension. No reversible error
occurred in substituting the word "accident" for the word I1injury.
I
'
Third, appellant asserts that the District Court erred in
giving mere accident instructions where a res ipsa factual
circumstance existed. Appellant did not plead the res ipsa
doctrine and did not offer a res ipsa instruction. We reject this
contention.
Fourth, according to appellant, the District Court erred in
refusing to give three jury instructions that she offered which
were taken from the Washington Appellate Court's decision in
Pimental v. Roundup Co. (Wash.App. 1982), 649 P.2d 135. The
District Court did give, over defendant's objection, an instruction
based on the Washington Supreme Court's decision in Pimental v.
Roundup Co. (Wash. 1983), 666 P.2d 888. The given instruction
provided that a plaintiff need not prove that a proprietor had
either actual or constructive notice of an unsafe condition when
the proprietor's method of operation renders the unsafe condition
reasonably foreseeable. The defense objected to this instruction
as an impermissible extension of Montana's premises liability law
which requires that a plaintiff must establish that the proprietor
had notice (actual or constructive) of the unsafe condition.
However, as respondent prevailed at trial, the viability of this
legal theory in Montana is not an issue before us.
A review of both Pimental decisions reveals that the
Washington Supreme Court's decision modified the Washington
Appellate Court's decision. The three refused instructions embody
the defects the Washington Supreme Court found in the appellate
court's decision. As reflected in two of the proposed
instructions, the appellate court's decision not only eliminated
the notice requirement but shifted the burden of proof to the
defendant to disprove negligence. This substantial departure from
established premises liability principles requires the defendant
to prove that the defendant kept the premises reasonably maintained
under the circumstances. Traditionally, the plaintiff must prove
that the defendant failed to reasonably maintain the premises. The
Washington Supreme Court did not find such a departure from
traditional premises liability principles warranted.
The third instruction refused by the District Court eliminated
as a matter of law the notice requirement for self-service
operations. Again, the Washington Supreme Court specifically
rejected this legal theory and held that "the requirement of
showing notice will be eliminated only if the particular self-
service operation of the defendant is shown to be such that the
existence of unsafe conditions is reasonably foreseeable."
Pimental, 666 P.2d at 893. The District Court did not err in
refusing to give three instructions based on a theory of law
rejected by the Washington Supreme Court.
All three instructions refused by the District Court refer to
self-service operations. Appellant argues that the District Court
erred in its opinion denying appellant's new trial motion, when it
found that the record did not establish that K-Mart was a self-
service store. However, the Washington Supreme Court's Pimental
decision involved a self-service operation and, therefore, the
instruction based on the Pimental decision includes self-service
operations. No reversible error occurred.
Appellant argues that the District Court erred in denying her
motion for judgment NOV. A motion for judgment NOV may be granted
only if it appears that the non-moving party cannot recover upon
any view of the evidence, including legitimate inferences to be
drawn from it. Wilkerson v. School Dist. No. 15, Glacier Cty.
(1985), 216 Mont. 203, 211, 700 P.2d 617, 622.
Appellant bases her motion on Jury Instruction No. 27 which
reads as follows:
When an unsafe condition exists which has been
created by the owner of the property himself
or by an employee of that owner within the
scope of his employment, a shopper need not
prove the owner's notice or knowledge of the
dangerous condition, such knowledge is imputed
to the owner.
Contrary to appellant's argument that the evidence allows only the
conclusion that K-Mart's agents were responsible forthe spill, the
record contains substantial credible evidence upon which the jury
could have found otherwise. The District Court properly denied
appellant's motion for judgment NOV.
Affirmed.
We concur: