STATE OF MINNESOTA
IN COURT OF APPEALS
Wal-Mart Stores, Inc.,
Filed November 2, 1999
Clay County District Court
File No. C3-95-1595
Kent D. Mattson, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN 56538 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.
Appellant argues the district court abused its discretion when it refused to instruct the jury on superseding cause where an unknown customer pushed items off of shelving units allegedly used and maintained by appellant negligently. Appellant argues that the district court further abused its discretion when it received photographs of the shelving units at the accident scene and shelving units utilized in other area retail stores taken three years after the accident. Appellant also claims the court should not have allowed respondent's experts to testify regarding the photographs. We affirm.
The case was again tried to a jury in September 1998. Following a two day trial, the jury returned a verdict finding Wal-Mart negligent. Wal-Mart moved for judgment notwithstanding the verdict, or for a new trial, arguing the district court erred when it failed to instruct the jury on superseding cause and abused its discretion when it admitted certain photographs, testimony, and expert opinions. On January 7, 1999, the district court denied Wal-Mart's motions without explanation. This appeal follows.
It is within the district court's broad discretion to determine what instructions to give the jury. Janke v. Duluth & N.W. R.R., 489 N.W.2d 545, 547 (Minn. App. 1992), review denied (Minn. Oct. 28, 1992). A new trial is not warranted by the district court's failure to give a requested instruction "if the general charge to the jury fairly and accurately states the applicable law." Id. (citation omitted).
A party is entitled to a jury instruction that sets forth his or her theory of the case if evidence supports it and if it is consistent with the applicable law.
Kirsebom v. Connelly, 486 N.W.2d 172, 174 (Minn. App. 1992) (citation omitted).
The doctrine of superseding cause recognizes that an actor's negligent actions may have put the plaintiff in a position to be injured, but that an intervening event may have caused the actual injury. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992). The following elements must be present for a cause to be superseding:
(1) Its harmful effects must have occurred after the original negligence; (2) it must not have been brought about by the original negligence; (3) it must actively work to bring about a result which would not otherwise have followed from the original negligence; and (4) it must not have been reasonably foreseeable by the original wrongdoer.
Rieger v. Zackoski, 321 N.W.2d 16, 21 (Minn. 1982) (quotation omitted). "Unless all four elements are satisfied, an intervening cause cannot be considered superseding." Wartnick, 490 N.W.2d at 113 (citation omitted). The presence of each element is a prerequisite for a superseding cause instruction to be given to the jury. Rieger, 321 N.W.2d at 20-21.
Here, the alleged superseding cause was the act of the unidentified customer pushing merchandise in the adjacent aisle in such a way that it caused merchandise in the next aisle to fall on Zitzow. The original alleged negligence is Wal-Mart's failure to use the top shelves with center dividers or retaining racks. The central issue is whether the actions of the unidentified customer were foreseeable.
"[A] defendant may not be relieved of liability by an intervening cause which could reasonably be foreseen * * * ." Larson v. Montpetit, 275 Minn. 394, 398 n.4, 147 N.W.2d 580, 583 n.4 (1966) (citations omitted). If the unreasonable risk of harm attributable to the third party's conduct was foreseeable, the cause is not superseding. Rieger, 321 N.W.2d at 21. Whether a superseding cause is foreseeable is initially a determination for the district court. Id. at 23. Only if there might be a reasonable difference of opinion regarding the foreseeability of the intervening act should the issue of superseding cause be submitted to the jury. Maanum v. Aust, 364 N.W.2d 827, 832 (Minn. App. 1985), review denied (Minn. June 14, 1985).
Here, the testimony of Ryan Hoage, Wal-Mart's manager, establishes that Wal-Mart was aware that customers reached for, removed, and handled merchandise on the top shelves. It also established that at the time of the accident, Hoage was aware that a customer in one aisle could push top-shelf merchandise in such a way that it would cause merchandise in the adjacent aisle to fall from the top shelf and that it was possible that an innocent customer or employee could be injured as a result. Yet, despite this awareness, nothing was done about the danger. Hoage's testimony unequivocally establishes that the unidentified customer's negligence and Zitzow's injury were foreseeable.
Because the unidentified customer's negligence and Zitzow's injury were reasonably foreseeable to Wal-Mart, we conclude that Wal-Mart was not entitled to an instruction on superseding cause. The district court did not abuse its discretion in refusing to instruct the jury on superseding cause.
Next, Wal-Mart argues the district court abused its discretion when it admitted photographs taken by Zitzow's investigator, Henry Kucera, three years after the accident. The district court received photographs of the shelving units in the automotive department (exhibits 1-10) and of shelving units used in other area retail stores (exhibits 11-21). Wal-Mart agreed to the admission of exhibits 1 through 10 for illustrative purposes, and they were received for that purpose. Exhibits 11 through 21 were received over Wal-Mart's objection.
It is within the district court's discretion to admit or exclude evidence, and its decision will not be reversed on appeal "unless it was an abuse of discretion or based on an erroneous view of the law." Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998) (citation omitted). A party is entitled to a new trial based on an erroneous evidentiary ruling only if the party can demonstrate prejudicial error. K.L. v. Riverside Med. Ctr., 524 N.W.2d 300, 303 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995). "An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial." Cloverdale Foods, 580 N.W.2d at 51 (citations omitted).
A photograph of the locus in quo need not reflect in detail the conditions existing at the time of the accident and may be admitted for a limited purpose if it is a helpful and accurate illustration and the district court, in its discretion, concludes the admission will not be misleading or prejudicial. Hardy v. Anderson, 241 Minn. 478, 482, 63 N.W.2d 814, 817-18 (1954). It is within the district court's discretion to admit a photograph of the locus in quo for illustrative purposes and to allow an expert to testify based on the photograph where the jury is advised that the photographs were admitted for the purposes of illustration and demonstration only and the expert used the photographs for such purposes. See Bimberg v. Northern Pac. Ry., 217 Minn. 187, 196-97, 14 N.W.2d 410, 415 (1944) (holding district court did not abuse its discretion in admitting photographs of locus in quo for illustrative purposes and allowing expert to use photographs for such purposes). Here, Hoage testified based on the photographs and at no time indicated that the shelving units in the photographs did not accurately depict the general configuration of the shelving units in the automotive department as they existed in 1993. The jury was also informed that the photographs did not depict the accident scene in 1993 and were taken three years after the accident. There is no indication that the photographs are "misleading or prejudicial as to those conditions which [they do] not portray accurately." Hardy, 241 Minn. at 482, 63 N.W.2d at 817-18.
Even if the photographs and testimony were erroneously admitted, the error is harmless. If the jury's verdict is supported by competent evidence absent the erroneously admitted evidence, there is no prejudice. See ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (holding no prejudice where court erroneously admitted certain evidence because jury's verdict supported by other competent evidence), review denied (Minn. Apr. 29, 1992). Here, Hoage testified that he was aware that a customer in one aisle could push merchandise in such a way that it could fall and possibly injure an individual in the adjacent aisle. He stated he was aware that customers would regularly handle items on the top shelves even though they were not supposed to do so and that center dividers or retaining racks could have prevented the accident. Given this testimony, it is unlikely that the admission of the photographs and the testimony of Kucera changed the outcome of the trial. If present, we conclude that any error in admitting exhibits 1-10 and in allowing Kucera to testify based on these exhibits is harmless.
We also reject Wal-Mart's assertion that the district court improperly allowed evidence regarding improper stocking procedures on behalf of Wal-Mart. Exhibit 8 was a photograph showing merchandise protruding over the edge of a shelf in the automotive department. Zitzow's retail safety expert, William Jacobs, was asked if the photograph was representative of the stocking practices he had observed in other Wal-Mart stores in 1993. He indicated that it was. He stated that such stocking practices made it more likely that merchandise would fall from a shelf and injure someone.
During cross-examination, Jacobs admitted that the photograph was taken three years after the accident and that he had no personal knowledge that items were hanging off the edge of the shelves at the time of the accident. Jacobs's testimony simply reflects common sense and experience. That is, if a shelf is overstocked with overhanging items, it is possible for the items to fall from the shelf and possibly injure someone. More importantly, Jacobs did not testify that overhanging merchandise contributed to Zitzow's injury or that merchandise was hanging over the edge of the shelves at the time of the accident. Given the general nature of Jacobs's testimony, we conclude that Wal-Mart did not suffer any undue prejudice by the admission of exhibit 8 and Jacobs's testimony based on exhibit 8.
Finally, Wal-Mart argues the district court abused its discretion when it received photographs of shelving units found in other area retail stores (exhibits 11-21) and allowed Kucera and Jacobs to testify regarding the photographs. The photographs were admitted to show the different types of shelving used in the retail industry and to counter Wal-Mart's claim that its shelving conformed to industry standards. By asserting the "industry standards" defense, Wal-Mart opened the door to the photographs and testimony of Kucera and Jacobs.
Given the wide discretion afforded district courts in evidentiary matters, we conclude that the district court did not abuse its discretion in admitting the photographs for illustrative purposes or in allowing Kucera or Jacobs to testify based on the photographs.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.