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, 

I - Montana 

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Submitted on Briefs: Jan. 25, 1990 

Decided: February 20, 1990 

- Clerk 
Justice 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 in denying plaintiff ' s motion 

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 customers who had gone through K-Mart check stands 

for the first hour of operation on July 15, 1987. 

B. The District Court erred in submitting jury instructions 

modified to include the word "accident1' in lieu of "injury." 

C. The District Court erred in giving mere accident 

instructions where 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's motion 

for judgment notwithstanding the verdict, when, in applying the 

court's instruction no. 27, the only viable conclusion is that the 

defendant was negligent as a matter of law. 

The Missoula K-Mart store opened for business at 9:00 a.m. on 

July 15, 1987. Appellant arrived at K-Mart approximately five 

2 
minutes 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, 

appellant proceeded directly to the outdoor furniture display. At 

approximately 9:10 to 9:15 a.m., while walking down an aisle near 

the outdoor furniture display, 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. 

Because appellant's injuries had not stabilized, the parties agreed 

to bifurcate the case and submit only the liability question to the 

jury, reserving the damage issue. 

At trial, much of the testimony related to who was more 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 four points of error in the District Court's 
denial 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, (citation omitted), and will not be overturned absent 

a showing of manifest abuse of discretion (citation omitted) ." 

Walter v. Evans Products Co. (1983), 207 Mont. 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 keeps an hourly 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 discloses K-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 store was clearly relevant to 

the issue of who likely caused the spill. Appellant's counsel had 

ample opportunity during 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 the word "accidentM in 

lieu of 'tinjury" in five of the instructions. Apparently the 
substitution occurred as a result of the parties' agreement not 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 instructions and 

verdict form corrected any misapprehension. No reversible error 

occurred in substituting the word "accident" for the word 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 Court did give, over defendant's objection, 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's method 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 the proprietor 

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's decision. The three refused 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 to disprove negligence. This substantial departure from 

established premises liability principles requires the defendant 

to prove that the defendant kept the premises reasonably maintained 

under the circumstances. Traditionally, the plaintiff must prove 

that the defendant failed to reasonably maintain the premises. The 

Washington Supreme Court did not find such a departure from 

traditional premises liability principles warranted. 

The third instruction refused by the District Court eliminated 

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 the Washington Supreme Court. 
All three instructions refused by the District Court refer to 

self-service operations. Appellant argues that the District Court 

erred in its opinion denying appellant's new trial motion, 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 in denying her 

motion for judgment NOV. A motion 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 exists which 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, such knowledge is imputed 

to the owner. 

Contrary to appellant's argument that the evidence allows only the 

conclusion that K-Mart's agents were responsible forthe spill, the 

record contains substantial credible evidence upon which the jury 

could have found otherwise. The District Court properly denied 
appellant's motion for judgment NOV. 

Affirmed. 

We concur: