Averty v. Wal-Mart Stores, Inc.

265 P.3d 456 (2011)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P slipped in grease while making a delivery to D. The grease had accumulated in the grocery receiving area. P ruptured a disc in her spine and injured her shoulder and neck. These injuries ended her career as a truck driver and have left her unable to perform many daily functions. P sued for negligence and premises liability. P's attorney unsuccessfully sought to obtain records from D documenting the grease spill. D denied the existence of the grease spill, noting in its opening statement that there had been no grease spill and, if there had been, D would have records documenting it. P eventually contacted Weld County to determine if it had records documenting the grease spill. Weld County told P to contact the City of Greeley. A colleague then contacted the City of Greeley while P's attorney returned to the trial. D made its opening statement at trial and denied the grease spill. P got the information regarding the spill from the county. P eventually called as a witness Jonnie Shommer, who was D's corporate representative designated under C.R.C.P. 30(b)(6). After Shommer testified that there had been no grease spill, P impeached her testimony with factual questions based on the Greeley report. P did not specifically refer to the report, nor did he introduce the report into evidence. When P concluded the direct examination of Shommer, D requested and was granted, a recess. D's attorney asked P whether he had been reading from a document when he questioned Shommer. P then gave D a copy of the Greeley report. D objected to the use of the report. The court overruled D's objection. D admitted the Greeley report into evidence. D then informed the court and P that it had located an assistant manager who remembered the grease spill and numerous documents corroborating the existence of the spill, including documents from three companies who were involved in cleaning up the spill. From that point forward, D ceased to deny the existence of the grease spill and instead asserted that it exercised reasonable care to clean up the spill. The jury awarded P $15 million in damages, including: $4.5 million in economic damages; $5.5 million in non-economic damages; and $5 million for her physical impairment. The trial court ultimately reduced the non-economic damages award to the statutory cap of $366,250 set forth in section 13-21-102.5(3), C.R.S. (2011). D moved for a new trial based on surprise, non-disclosure, and unfair prejudice. The trial court granted D's motion, holding that P should have disclosed the Greeley report. The trial court also found that the jury's damages award was excessive, not supported by the evidence, and 'could only be the result of prejudice and bias and the jury's desire to punish Wal-Mart.' This appeal resulted.