ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
George T. Patton, Jr. Karl L. Mulvaney
Bryan H. Babb Nana Quay-Smith
Indianapolis, Indiana Candace L. Sage
Indianapolis, Indiana
Eric A. Riegner
Indianapolis, Indiana James H. Young
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
WAL-MART STORES, INC., )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 29S05-0202-CV-131
v. )
) Indiana Court of Appeals
RUTH ANN WRIGHT, ) Cause No. 29A05-0009-CV-403
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-9607-CT-320
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
September 11, 2002
BOEHM, Justice.
Factual and Procedural Background
Ruth Ann Wright sued for injuries she sustained when she slipped on a
puddle of water at the “Outdoor Lawn and Garden Corral” of the Carmel Wal-
Mart. Wright alleged Wal-Mart was negligent in the maintenance, care and
inspection of the premises, and Wal-Mart asserted contributory negligence.
By stipulation of the parties, a number of Wal-Mart’s employee documents
assembled as a “Store Manual” were admitted into evidence at the jury trial
that followed. Several of these detailed procedures for dealing with
spills and other floor hazards.[1] The applicability of the Manual to the
open-air lawn and garden corral was disputed. Both the manager of the
corral at the time of Wright’s fall and a former assistant manager of the
store testified that the Manual applied only inside the store, not in the
corral. Another former assistant manager of the store first testified that
the Manual did not apply to the corral, but then testified that the
sections of the Manual dealing with floor hazards and spills did apply. A
former general manager of the Carmel store testified that the Manual did
not specifically apply to the corral, but “should be used as a guide to
clean up anything that would be considered a hazard.” Finally, Janice
Walker, a former Carmel Wal-Mart employee who was reporting for work when
she witnessed Wright’s fall, testified that she would sweep or “squeegee”
water in the corral on an “as required” basis, usually after a rainfall or
plant watering. Walker also testified that she was a member of the store’s
safety team and that the puddle where Wright fell was of the type Walker
would normally sweep or squeegee.
At the end of the trial, Wright tendered the following instruction:
There was in effect at the time of the Plaintiff’s injury a
store manual and safety handbook prepared by the Defendant, Wal-Mart
Stores, Inc., and issued to Wal-Mart Store, Inc. employees. You may
consider the violation of any rules, policies, practices and
procedures contained in these manuals and safety handbook along with
all of the other evidence and the Court’s instructions in deciding
whether Wal-Mart was negligent.
The violation of its rules, policies, practices and procedures
are a proper item of evidence tending to show the degree of care
recognized by Wal-Mart as ordinary care under the conditions specified
in its rules, policies, practices and procedures.
Wal-Mart objected on the ground that “you can set standards for yourself
that exceed ordinary care and the fact that you’ve done that shouldn’t be
used, as this second paragraph says, as evidence tending to show the degree
that you believe is ordinary. The jury decides what ordinary care is.”
The court overruled the objection and the tendered instruction became Final
Instruction 17. The court also instructed the jury that, inter alia, (1)
the jury was to consider all the instructions as a whole, and should not
“single out any certain sentence or any individual point or instruction and
ignore the other” instructions; (2) Wal-Mart was required to maintain its
property in a reasonably safe condition suitable for use by its customers;
(3) Wal-Mart was negligent if the jury found Wal-Mart had failed to use
reasonable care to make its premises reasonably safe for Wright; (4) Wal-
Mart was not required to guarantee its customers’ safety, but only to
exercise reasonable care to prevent harm; (5) negligence is the failure to
do what a reasonably careful and prudent person would do under the same or
similar circumstances or the doing of something that a reasonably careful
and prudent person would not do under the same or similar circumstances;
(6) negligence is the failure to exercise reasonable or ordinary care; and
(7) reasonable or ordinary care is such care as a reasonably careful and
ordinarily prudent person would exercise under the same or similar
circumstances.
The jury found Wal-Mart liable and assessed Wright’s total damages at
$600,000, reduced to $420,000 by 30% comparative fault attributed to
Wright. Wal-Mart appealed, contending that the second paragraph of Final
Instruction 17 was an improper statement of law that incorrectly altered
the standard of care from an objective one to a subjective one. The Court
of Appeals affirmed, holding the challenged paragraph of the instruction
was proper because it “did not require the jury to find that ordinary care,
as recognized by Wal-Mart, was the standard to which Wal-Mart should be
held,” and because the trial court had not “instructed the jury that
reasonable or ordinary care was anything other than that of a reasonably,
careful and ordinarily prudent person.” Wal-Mart Stores, Inc. v. Wright,
754 N.E.2d 1013, 1018 (Ind. Ct. App. 2001). This Court granted transfer.
In reviewing a trial court’s decision to give or refuse a tendered
instruction, this Court considers whether the instruction (1) correctly
states the law, (2) is supported by the evidence in the record, and (3) is
covered in substance by other instructions. Whitney v. State, 750 N.E.2d
342, 344 (Ind. 2001). The trial court has discretion in instructing the
jury, and we will reverse on the last two issues only when the instructions
amount to an abuse of discretion. When an instruction is challenged as an
incorrect statement of the law, however, appellate review of the ruling is
de novo. Cf. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Here, Wal-
Mart argues that the second paragraph of Final Instruction 17 incorrectly
stated the law because it invited jurors to apply Wal-Mart’s subjective
view of the standard of care as evidenced by the Manual, rather than an
objective standard of ordinary care. Wright responds that the paragraph
simply allows jurors to consider Wal-Mart’s subjective view of ordinary
care as some evidence of what was in fact ordinary care, and does not
convert the objective standard to a subjective one. The Court of Appeals
agreed with Wright, holding that the paragraph was proper because it “did
not require the jury to find that ordinary care, as recognized by Wal-Mart,
was the standard to which Wal-Mart should be held,” and because the trial
court had not “instructed the jury that reasonable or ordinary care was
anything other than that of a reasonably, careful and ordinarily prudent
person.” 754 N.E.2d at 1018.
I. Work Rules as Standards of Ordinary Care
Initially, we note that implicit in each of these positions, and
explicit in the second paragraph of the instruction, is the assumption that
the Manual in fact “tend[s] to show the degree of care recognized by Wal-
Mart as ordinary care under the conditions specified in [the Manual].” Wal-
Mart also objected to this assumption, contending “you can set standards
for yourself that exceed ordinary care and the fact that you’ve done that
shouldn’t be used, as this second paragraph says, as evidence tending to
show the degree that you believe is ordinary.” We agree. The second
paragraph of the instruction told the jurors that because Wal-Mart has
established certain rules and policies, those rules and policies are
evidence of the degree of care recognized by Wal-Mart as ordinary care.
But Wal-Mart is correct that its rules and policies may exceed its view of
what is required by ordinary care in a given situation. Rules and policies
in the Manual may have been established for any number of reasons having
nothing to do with safety and ordinary care, including a desire to appear
more clean and neat to attract customers, or a concern that spills may
contaminate merchandise.
The law has long recognized that failure to follow a party’s
precautionary steps or procedures is not necessarily failure to exercise
ordinary care. 57A Am. Jur. 2d Negligence § 187 at 239 (1998) (failure to
follow company rule does not constitute negligence per se; jury may
consider rule, but rule does not set standard of conduct establishing what
law requires of a reasonable person under the circumstances); 1 Dan B.
Dobbs, The Law of Torts § 165 (2000) (defendant’s rules or practices are
evidence bearing on the reasonable care issue, but do not ordinarily count
as the standard of care; limiting instruction may be required, advising
jury that rules cannot set a higher duty than is required by law); 1 J.D.
Lee and Barry A. Lindahl, Modern Tort Law § 3.29 (1996) (“Company rules are
generally admissible but not conclusive on the question of the standard of
care.”); Rupert v. Clayton Brokerage Co., 737 P.2d 1106, 1111 (Col. 1987)
(internal rules of brokerage firm relevant to standard of care for breach
of fiduciary duty, but not determinative of the standard of care); Sherman
v. Robinson, 606 N.E.2d 1365, 1369 n.3 (N.Y. 1992) (defendant’s company
manual did not create a separate duty of care; where internal rules require
a standard that transcends reasonable care, breach of rules cannot be
considered evidence of negligence); cf. Boutilier v. Chrysler Ins. Co., No.
8:99-cv-2270-T-26MAP, 2001 U.S. Dist. LEXIS 5526, at *4 (M.D. Fla. Jan. 31,
2001) (in negligence action, mere fact that defendant has internal
corporate policy does not create a legal duty or cause a breach of that
duty). We think this rule is salutary because it encourages following the
best practices without necessarily establishing them as a legal norm.
II. Ordinary Care as an Objective Standard
There is a second problem with the instruction. Even if the Manual
reflected Wal-Mart’s subjective view of ordinary care, the second paragraph
of the instruction incorrectly states the law because it invites jurors to
apply Wal-Mart’s subjective view—as evidenced by the Manual—rather than an
objective standard of ordinary care. It is axiomatic that in a negligence
action “[t]he standard of conduct which the community demands must be an
external and objective one, rather than the individual judgment, good or
bad, of the particular actor.” W. Page Keeton et al., Prosser & Keeton on
the Law of Torts § 32, at 173-74 & n.3 (5th ed. 1984) (citing The Germanic,
196 U.S. 589 (1905)); see also id. § 32, at 174 n.2 (“‘The standard of care
exacted by the law is an external and objective one and the law does not
permit the defendant to make the determination . . . .’”) (quoting Fancher
v. Southwest Mo. Truck Ctr., Inc., 618 S.W.2d 271, 274 (Mo. Ct. App.
1981)); cf. Ware v. State, 441 N.E.2d 20, 21 n.1 (Ind. Ct. App. 1982),
reh’g denied (“An objective standard of conduct is external, formulated
with reference to community values. A subjective standard, by contrast,
refers to the judgment or perceptions of the particular actor.”) (citing W.
Prosser, Handbook of the Law of Torts 150 (4th ed. 1971)). An individual
“actor’s belief that he is using reasonable care is immaterial.” Keeton,
supra, § 32, at 174 n.3. This door swings both ways. A defendant’s belief
that it is acting reasonably is no defense if its conduct falls below
reasonable care. Similarly, a defendant’s belief that it should perform at
a higher standard than objective reasonable care is equally irrelevant. As
one court succinctly put it, “a party’s own rules of conduct are relevant
and can be received into evidence with an express caution that they are
merely evidentiary and not to serve as a legal standard.” Mayo v. Publix
Super Mkts, Inc., 686 So.2d 801, 802 (Fla. Dist. Ct. App. 1997).
Wright cites four cases in support of the instruction: Smith v.
Cleveland C.C. & St.L. Ry. Co., 67 Ind. App. 397, 117 N.E. 534 (1917); N.Y.
Cent. Ry. Co. v. Wyatt, 135 Ind. App. 205, 184 N.E.2d 657 (1962); Cent.
Ind. Ry. Co. v. Anderson Banking Co., 143 Ind. App. 396, 240 N.E.2d 840
(1968); and Frankfort v. Owens, 171 Ind. App. 566, 358 N.E.2d 184 (1976).
These authorities support the admissibility of the Manual, which Wal-Mart
does not contest. They do not support an instruction to consider any
“violation” of the Manual as “evidence tending to show the degree of care
recognized by Wal-Mart as ordinary care under the conditions.” We conclude
that the second paragraph of Final Instruction 17 was an improper
invitation to deviate from the accepted objective standard of ordinary care
and therefore incorrectly stated the law.
III. Harmless Error
When a jury instruction incorrectly states the law, we assume that
the erroneous instruction influenced the verdict and will reverse unless
the verdict would have been the same under a proper instruction. Vergara
by Vergara v. Doan, 593 N.E.2d 185, 187 (Ind. 1992); Canfield v. Sandock,
563 N.E.2d 1279, 1282 (Ind. 1990). This instruction suffered from two
flaws. It equated Wal-Mart’s procedures with reasonable care and it
asserted that Wal-Mart’s subjective view of reasonable care was relevant.
No other instruction corrected these problems. Accordingly, read together
these instructions introduced the concept of reasonable or ordinary care,
directed the jurors to consider the Manual as evidence tending to show what
Wal-Mart “recognized” that ordinary care to be, and thereby implied that a
violation of the Manual was a violation of ordinary care.
Had the Manual played a smaller role in the trial, perhaps this error
could be deemed harmless. However, the applicability of the Manual to the
lawn and garden corral and the effect of a violation of the Manual were
hotly contested and formed a substantial part of Wright’s case. During
voir dire Wright foreshadowed the introduction of the Manual in the
following exchange with a potential juror about her own work rules:
Q. What if you didn’t, how would you feel about it if you didn’t
follow those procedures that are in your handbooks and in your
manuals?
A. How would I feel?
Q. As far as whether you did what was reasonable?
A. If I didn’t follow what I was supposed to follow, then how
would I feel about it?
Q. Would you feel like you hadn’t done what you were supposed to
do?
A. Of course. Of course, yes.
Q. And kind of fell below a standard of what the company felt was
reasonable under the circumstances.
A. Right.
In her opening statement, Wright again relied on the Manual:
And that’s what I’m talking about here, it’s not absolutely guaranteed
safe. We don’t hold them to that standard. We know there’s no
guarantees in life. But the evidence is that they failed to use
reasonable care. Evidence of what is reasonable care in their own
safety manual which you’ll see throughout this trial . . . .
In closing argument Wright contended that Wal-Mart “[d]idn’t follow its own
rules by squeegeeing and brooming, didn’t follow its own rules by using
safety cones or cordoning off the area, did not follow it’s own procedures
by leaving the hazard unattended,” and again read the relevant portions of
the Manual to the jury. Wright also stated that “[t]he Judge is going to
instruct you about these manuals and rules and safety rules and how they
can be of guidance to you. I think they’re guidance because they show what
is reasonable under the circumstances.” Final Instruction 17 was then read
to the jury verbatim. On these facts the Manual took on heightened
evidentiary significance, and the potential impact of the flawed paragraph
is apparent.
Conclusion
The judgment of the trial court is reversed. This action is remanded
for a new trial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Stipulated Exhibit 10, entitled “Stocking General Lesson,” instructed
employees to “[r]eact quickly to any spills that are on the floor,” and to
“[n]ever leave a spill unattended.” Stipulated Exhibit 11, entitled “Store
Housekeeping – Floor Care,” counseled that “[w]hen a liquid or granular
substance is spilled, the area must be cordoned off until the floor is
clear and safe for Customer traffic. The spill must be cleaned
immediately.” Stipulated Exhibit 12, entitled “Customer Safety Lesson,”
instructed employees to “[c]orrect hazards immediately,” and to use safety
cones “to warn Customers and Associates of slippery floors.” Stipulated
Exhibit 13, entitled “Safety Handbook,” reiterated the advice of the
previous documents and instructed employees to “[g]uard spills until they
are dry.”
Wal-Mart Stores, Inc. v. Wright
Combined Opinion