No. 89-490 IN THE SIJPREME COURT OF THE STATE OF MONTANA 1990

RAMONA LARSON, Plaintiff and Appellant,-vsK-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



### - ClerkJustice 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 ~istrict Court err indenyingplaintiff

### 'smotion 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 customerswho had gone through K-Mart check stands for the first hour of operation on July 15, 1987. B. The DistrictCourt erred in submitting jury instructions modified to include the word "accident1' in lieu of "injury." C. The District Court erred in giving mere accident instructionswhere 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'smotion for judgment notwithstanding the verdict, when, in applying the court's instructionno. 27,the onlyviable conclusion is that the defendant was negligent as a matter of law. TheMissoula K-Mart store opened for business at 9:00 a.m. on July 15, 1987. Appellant arrived at K-Mart approximately five 2minutes 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, appellantproceeded directly to the outdoor furniture display. At approximately 9:10 to 9:15 a.m., while walking down an aisle near the outdoor furnituredisplay, 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. Becauseappellant's injurieshadnot stabilized,thepartiesagreed tobifurcate the caseand submitonly the liabilityquestion tothe jury, reserving the damage issue. At trial,much of thetestimony related towho wasmore likely to have caused the spill, a customer or a K-Mart employee. Appellant contended that a K-Mart employee caused the spill. KMart 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 fourpoints of error in theDistrictCourt'sdenial 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, (citationomitted), andwill not be overturned absent a showing of manifest abuse of discretion (citation omitted)

# ." Walter v. Evans Products Co. (1983), 207Mont. 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 keepsanhourly 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 disclosesK-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 storewas clearly relevant to the issue of who likely caused the spill. Appellant's counselhad ample opportunityduring 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 theword "accidentM in lieu of 'tinjury"in five of the instructions. Apparently thesubstitutionoccurred as a result of theparties' agreementnot 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 instructionsand verdict form corrected any misapprehension. No reversible error occurred in substitutingtheword "accident" for theword 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 Courtdid give, overdefendant'sobjection,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'smethod 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 theproprietor 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'sdecision. Thethreerefused 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 todisprovenegligence. This substantialdeparture from established premises liability principles requires the defendant toprove that thedefendantkeptthepremises reasonablymaintained under the circumstances. Traditionally, the plaintiff must prove thatthedefendant failedtoreasonablymaintain thepremises. The Washington Supreme Court did not find such a departure from traditionalpremises liability principles warranted. Thethird instruction refusedby theDistrict Courteliminated

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 selfservice 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 theWashington Supreme Court.All three instructions refused by the District Court refer to self-serviceoperations. Appellant argues that the District Court erred in its opinion denying appellant's new trialmotion,when it found that the record did not establish that K-Mart was a selfservice 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 indenying her motion for judgment NOV. Amotion 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 existswhich 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,suchknowledge is imputed to the owner. Contrary to appellant'sargument that the evidence allows only the conclusionthatK-Mart's agents were responsibleforthespill,the record contains substantial credible evidence upon which the jury could have found otherwise. The District Court properly deniedappellant's motion for judgment NOV. Affirmed.

We concur: