Large jury award affirmed in negligence case against Kroger

Where plaintiff fell and broke her hip in a grocery store due to her shopping cart missing a wheel, yet she mostly recovered from the injury, a jury verdict of approximately $90,000 in medical expenses and the maximum allowable amount of $750,000 in noneconomic damages was affirmed.

In Wortham v. Kroger Limited Partnership I, No. W2019-00496-COA-R3-CV (Tenn. Ct. App. July 16, 2020), plaintiff, an 88-year-old woman, went to defendant grocery store with her adult daughter. The daughter retrieved a shopping cart from the vestibule for plaintiff’s use, and plaintiff proceeded to shop for around thirty minutes. Near the end of her shopping trip, plaintiff turned her cart to the right and it tipped over, causing her to fall. After plaintiff fell, it was discovered that the shopping cart was missing one wheel, and despite searching the property, the missing wheel and/or parts that would have held the wheel in place were not found. Plaintiff broke a bone and injured her hip in the fall, and she required surgery. She spent time four days in the hospital and fourteen days in a rehabilitation center, and despite doing well, she testified that the she still had some pain and had lost much of her independence due to the fall.

Plaintiff initially filed a premises liability and ordinary negligence suit against defendant, and defendant answered and alleged comparative fault on the part of plaintiff and a company called Peggs with whom it had contracted for the maintenance of its shopping carts. Plaintiff amended her suit to add Peggs as a party, but she eventually settled with them. Before that settlement, however, Peggs had filed a motion for summary judgment arguing that “it did not owe a duty to [plaintiff], that it did not breach its duty, and that there was no proof of causation,” which the trial court granted. The trial court also partially granted Peggs’ motion for summary judgment as to claims asserted against it by defendant, as there was “insufficient evidence to show that Peggs committed any negligence that resulted in [plaintiff’s] injuries.” In addition, the trial court allowed plaintiff to drop her premises liability claim and proceed under only her ordinary negligence theory.

The case eventually went to a jury trial, where the evidence showed that defendant performed monthly safety inspections which included inspections of shopping carts. Further, baggers and courtesy clerks were responsible for bringing carts in from the parking lot, and they were supposed to check the carts and take any broken ones out of commission. Defendant store’s manager testified that “courtesy clerks are instructed to continuously inspect the carts,” and that any three-wheeled carts are supposed to be removed from circulation. In addition, defendant contracted with Peggs “for the regular inspection of carts on a periodic basis,” and a Peggs employee was in the store less than two weeks prior to the fall for an inspection.

Plaintiff presented proof about her injuries, medical expenses, and her loss of independence. She testified that she can “no longer drive, can no longer stand for long periods of time, can no longer walk without assistance, and can no longer cook meals for her family.” She has been unable to do her own housework since the injury and has been unable to attend many social activities she used to enjoy. Plaintiff also presented testimony from an expert in human factors engineering who testified that plaintiff’s “actions on the day of the accident were consistent with the reasonable and foreseeable shopper.”

Defendant moved for a directed verdict after plaintiff’s proof, which the trial court denied. After deliberation, the jury returned a verdict finding defendant 100% at fault and awarding plaintiff $100,000 in economic damages and $2,600,000 in noneconomic damages. The trial court applied the statutory cap to the noneconomic damages to reduce the award to $750,000. Defendant filed a motion for remittitur and for a new trial. The trial court reduced the economic damages award to $90,114.80, which was the amount of medical bills and house cleaning expenses proven by plaintiff, but it denied the remainder of the motion. This appeal followed, and the trial court’s judgment was affirmed.

Directed Verdict

On appeal, the first issue was whether the trial court erred by denying defendant’s motion for directed verdict.  “[T]o survive a motion for directed verdict, the plaintiff must present some evidence from which a reasonable juror could find all the required elements of the plaintiff’s cause of action.” (internal citation omitted) Here, defendant argued that plaintiff’s claims were really premises liability claims, and that plaintiff failed to show that defendant “had actual or constructive notice of a dangerous condition on its property.” Plaintiff asserted, though, that “as the master of her complaint, [she] chose to proceed solely on a theory of negligent inspection[.]” While the Court of Appeals agreed that plaintiffs are in control of their cases, it noted that such control “does not prevent the court from determining the true nature of the claims alleged,” which should be gleaned from looking to the “gravamen of the complaint.” (internal citations omitted). Based on the facts at play here, the Court of Appeals agreed with defendant that this was most likely a premises liability action, as “an injury caused by a shopping cart on the premises of a grocery store has little distinction from an injury caused by wet floors or malfunctioning doors.” (internal citation omitted). This distinction, however, mattered little in this case, as plaintiff asserted that she had presented sufficient evidence to survive a directed verdict on either an ordinary negligence or a premises liability claim, and the Court of Appeals agreed.

Before looking at the elements of premises liability and negligence, the Court discussed the type of evidence a jury can use, noting that a “jury is permitted to rely on both direct and circumstantial evidence with equal force.” (internal citation omitted). In addition, the jury can “draw inferences form the evidence submitted to support its finding.” (internal citation omitted). While juries were traditionally prohibited from “draw[ing] inferences upon inferences,” the distinction is now more nuanced, as the Tennessee Supreme Court has held that “a fact may be inferred from circumstantial evidence, and from that fact thus inferred, another fact may be inferred without contravening the rule that an inference cannot be based upon an inference.” (internal citation omitted).

With that background, the Court moved to analyzing whether there was proof from which a reasonable juror could have found that plaintiff carried her burden on the elements of premises liability and/or negligence. Regarding duty, the Court noted that it was clearly foreseeable that a three-wheeled cart could injure a shopper, as defendant itself testified that it was policy to remove such carts from circulation. The real questions, then, were whether plaintiff presented proof on breach of the standard of care, causation, and, pursuant to a premises liability theory, actual or constructive notice of the defective shopping cart. Much of the analysis on these elements hinged on plaintiff’s allegation that the cart’s wheel was missing when it was retrieved from the store vestibule. While there was no direct evidence of this fact, the circumstantial evidence that no wheel or casing were ever located allowed the jury to reasonably make this inference, and “the evidence supporting this finding [was] of such a character and so strong that it justifies a conclusion or a finding of fact which becomes a proper basis for another inference.” (internal citation omitted). From the inference that the wheel was missing in the store lobby, the jury could then make inferences that supported the elements of plaintiff’s claims.

On breach of the standard of care, the Court stated that it could not “conclude that no reasonable jury could infer that the missing wheel was the result of [defendant’s] negligence.” The Court cited defendant’s evidence that clerks are supposed to check the carts as they bring them in, and found that “a reasonable jury could ‘surmise’ that [defendant] employees negligently allowed a cart with a missing wheel to remain in circulation.” (internal citation omitted).

On causation, the Court stated that it had “little difficulty finding sufficient evidence to prevent a directed verdict[.]” Because defendant had admitted that a three-wheeled cart should have been taken out of circulation and it was “near-certain” that the cart caused plaintiff’s fall, “it was not unreasonable for the jury to find that [defendant’s] failure to remove a cart that was missing a wheel at the time it was placed in the lobby was a breach of the standard of care that was both the cause in fact and proximate cause of [plaintiff’s] injuries.”

On notice under a premises liability theory, the Court stated that defendant’s “insistence that it has a policy to remove damaged and defective carts despite no written policy being in place actually undercuts its argument that [plaintiff] failed to show constructive notice here.” Because employees were supposed to routinely inspect carts as they returned them to the vestibule, the jury could reasonably infer that defendant “should have been aware of the defective cart at the time that it was taken to be used by [plaintiff].”

Because there was evidence to support each element, the trial court did not err by denying defendant’s motion for a directed verdict.

Defendant Peggs

Next, defendant argued that the Court made two mistakes regarding defendant Peggs, the entity with whom defendant contracted for cart inspection and maintenance. First, defendant argued that the trial court erred by excluding the actual contract between defendant and Peggs. The Court noted, though, that the trial court allowed testimony about the agreement, but simply refused to admit the actual contract into evidence. The Court found that defendant failed to “indicate why the jury’s verdict would be undermined when the jury heard evidence of [defendant’s] contractual relationship with Peggs and Peggs’ duty to inspect and maintain the shopping carts, but was not presented with the written contract formalizing that duty.” The Court accordingly ruled that no relief was appropriate on this basis.

Defendant also argued that the trial court erred in granting Peggs’ motion for summary judgment. First, defendant argued that the motion was moot by the time it was heard because plaintiff and Peggs had settled, but the Court disagreed. The Court noted that the whole point of defendant’s argument was that Peggs should have remained as a party to whom defendant could shift blame, and thus “[w]hether Peggs committed negligence that resulted in [plaintiff’s] injuries therefore appears to have remained in controversy at the time that the trial court granted summary judgment.” The Court held that “Peggs had an interest in defending against [defendant’s] efforts to assign it fault, notwithstanding the fact that Peggs settled with [plaintiff] under completely undisclosed terms.”

Next, defendant argued that summary judgment for Peggs was inappropriate because there were genuine issues of material fact regarding Peggs’ liability in this case. Peggs satisfied its burden under the summary judgment standard by showing that defendant had no evidence to establish its claim, and the Court ruled that defendant did not put up evidence to defeat the motion. The Court noted that defendant “admit that there [was] no evidence as to the condition of the shopping cart when Peggs first inspected it,” and that defendant could not “even establish that the subject shopping cart was present for Peggs to inspect” at the visit two weeks before the incident. The Court found that “for the jury to conclude that Peggs was both presented with the shopping cart and that it was defective twelve to thirteen days prior to [plaintiff’s] injuries would, respectfully, result from nothing more than speculation.” The Court held that the “large gap in time” and lack of evidence did not support an inference of liability against Peggs, and summary judgment was thus affirmed.

Plaintiff’s Expert

Defendant next objected to the admissibility of plaintiff’s expert testimony. Plaintiff presented the testimony of Dr. Lila Laux as an expert in human factors engineering, and Dr. Laux testified that plaintiff’s actions on the day in question were those of a reasonable and foreseeable shopper. Defendant argued that Dr. Laux’s testimony “did not substantially assist the trier of fact in evaluating the evidence or determining the disputed issues” and that it should therefore not have been admitted, and defendant asserted that the expert’s “opinions were unscientific and non-technical personal opinions because [she] measured nothing, conducted no tests of any kind, inspected nothing, and based her opinions on her experience as a member of the shopping public.”

The Court found, though, that Dr. Laux’s testimony “indicate[d] that her opinions were based on her technical and educational experience” The Court noted that other states have allowed testimony from human factors experts, and that Dr. Laux specifically noted that she reviewed records, watched video, spoke to witnesses, and reviewed safety standards for this case. Even though she sometimes spoke “in terms of her own consumer expectations, her testimony made clear that she was speaking in terms of general consumer expectations, rather than simply her own experiences…” The Court found that Dr. Laux’s testimony that plaintiff behaved reasonably was very relevant here, especially since defendant had alleged comparative fault against plaintiff. The trial court’s decision to admit Dr. Laux’s testimony was accordingly affirmed.

Motion for New Trial

Defendant argued that its motion for a new trial should have been granted on several bases. First, the Court quickly rejected defendant’s assertion that the jury’s verdict was against the weight of the evidence. Citing its analysis on the directed verdict argument, the Court found that it was not unreasonable for the jury to find that defendant was liable for plaintiff’s injuries.

Next, defendant argued that a new trial was warranted because the “jury’s verdict was excessive and based on passion and prejudice.” To support this argument, defendant first pointed to a question the jury sent the trial judge during deliberations which asked whether the jury could award punitive damages and whether a special verdict form was necessary to do so. After a discussion with both attorneys, the trial court instructed the jury that punitive damages were not at issue here, and the jury then deliberated and returned a verdict in compliance with its instructions. Defendant argued on appeal, though, that even though the jury’s verdict “was consistent with the trial court’s instructions…the mere asking of the question was sufficient to warrant a new trial.” The Court pointed out, however, that defendant failed to object to the trial court’s remedy for the situation at the time and apparently “may have withheld an objection as an ‘ace in the hole’ to undermine any future jury verdict,” which is not allowed. Because defendant did not object and the jury followed the instructions given, the Court ruled that defendant had not “shown that the trial court abused its discretion in denying the motion for new trial on this basis.”

Defendant also argued that a new trial was warranted based on comments made by plaintiff’s counsel during closing arguments. The record showed, however, that defendant did not object to these comments at the time and raised no objection until its motion for new trial. The Court thus held that defendant had waived these arguments and had “failed to demonstrate the high burden of plain error.”

Excessive Verdict

Defendant’s final argument in this case was that the jury’s verdict was so excessive that a remittitur or new trial was required. While the trial court remitted the original verdict from $100,000 to just over $90,000 to comport with plaintiff’s evidence about medical and housekeeping expenses, defendant sought a further remittitur, for which the burden at the Court of Appeals level is “extraordinarily high.” (internal citation omitted).

Defendant first argued that the trial court used an incorrect standard in denying its request for a remittitur of the noneconomic damages in this case. The jury originally awarded $2.6 million, but that amount was reduced to $750,000 due to the statutory cap on noneconomic damages. While denying a remittitur, the trial court “noted its role as thirteenth juror, along with the fact that the noneconomic damages had been reduced by law by 71.2% and ruled that $90,118.40 in economic damages and $750,000 in noneconomic damages was appropriate after ‘carefully considering the proof.’” While the Court of Appeals agreed with defendant that “the application of the statutory damages cap is not a substitute for the judge’s role as thirteenth juror,” it did not find that the trial court erred here. The Court stated that the trial court did not err by taking the statutory reduction into consideration. While this issue had not been addressed before in Tennessee and had rarely come up in other jurisdictions, the Court explained that “to consider the jury award without considering the reduction created by the cap would be to adjudicate theoretical rights,” and that there was thus no “error in the trial court’s refusal to ignore the reality of the award in adjudicating [defendant’s] motion for remittitur.”

Defendant next argued that the fact that the original amount of the noneconomic damages award was so far over the cap showed that the jury award was excessive, and that the “application of the cap does not ‘cure’ the excessive verdict.” Defendant pointed to the law that “remittiturs cannot stand when they totally destroy the jury’s verdict” as support for its position. (internal citation omitted).  The Court pointed out, though, that remittiturs and the statutory cap are not the same, and that under defendant’s logic, “any verdict for noneconomic damages would be deemed excessive when it exceeded the statutory cap and would be subject to further remittitur even though the damages were reduced by operation of the statute and are otherwise supported by the evidence presented.” The Court ruled that it “decline[d] to apply the cap in a manner that necessitates further reduction of injury awards simply because the cap was applied.”

Finally, defendant argued that the award was excessive because “medical evidence showed that [plaintiff] did not have lingering pain following her surgery or difficulty recovering.” The Court cited evidence that even though plaintiff’s pain might completely go away at some point, at trial she testified that she still had pain. Further, “noneconomic damages do not compensate for pain alone.” Plaintiff presented evidence about the extensive treatment that was required, as well as the effects on her life afterward. Plaintiff suffered a great loss of independence and was unable to do many things that she could do before the injury. Juries “have wide latitude in assessing non-economic damages,” and here defendant failed to show that there was no material evidence to support the admittedly high verdict.

The ruling of the trial court and the verdict for plaintiff was thus affirmed in whole.

NOTE: This opinion was published two and a half months after oral arguments in this case.


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