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Patrick J. O'bryan and v. Henry Carlson Company and Wal-Mart Stores

January 9, 2013

PATRICK J. O'BRYAN AND KATHY A. YINGLING, PLAINTIFFS-APPELLEES,
v.
HENRY CARLSON COMPANY AND WAL-MART STORES, INC., DEFENDANTS-APPELLANTS.



Appeal from the Iowa District Court for Clinton County, John D. Telleen, Judge.

The opinion of the court was delivered by: Mullins, J.

Defendants appeal a jury verdict awarding the plaintiff damages for an injury alleged to have occurred near a construction site on Wal-Mart, Inc. property. AFFIRMED ON BOTH APPEALS.

Heard by Doyle, P.J., and Mullins and Bower, JJ.

Henry Carlson Company (HCC) and Wal-Mart, Inc. appeal a jury verdict awarding Patrick J. O'Bryan damages for an injury alleged to have occurred near HCC's construction site on Wal-Mart property. HCC and Wal-Mart contend the district court erred in denying their respective motions for judgment notwithstanding the verdict and motions for a new trial. We affirm.

I. Background Facts & Proceedings

When viewed in a light most favorable to the verdict, the facts are as follows:

On June 20, 2008, O'Bryan stepped into a hole located outside of the vendor receiving door at a Wal-Mart store in Clinton, Iowa. At the time, O'Bryan, standing six-foot three-inches tall and weighing 400 pounds, was delivering bread to Wal-Mart for his employer, Sara Lee Bakery. On his way into the store, O'Bryan passed several covered holes in a construction area near the door. After O'Bryan unloaded the cargo inside the store, he stacked the empty crates onto a dolly. Pulling the dolly with both hands and looking over his left shoulder, O'Bryan navigated his way through the plastic strips hanging inside the doorway and over one or more extension cords. After he exited the store, his left foot fell into an uncovered hole, causing his right ankle to twist and his body weight to pull down on his arms and shoulders as he hung onto the dolly. O'Bryan felt a sharp pain on his right side, but did not think he was seriously injured.

HCC was responsible for the construction area at the Wal-Mart. HCC hired Superior Concrete to drill sixteen holes, each sixteen inches in diameter.

Twelve of the holes were drilled for a cage near the delivery entrance and two holes were drilled on either side of the delivery door. One HCC employee testified the holes were drilled and bollards installed in the holes prior to June 20, 2008. Another employee testified the holes were drilled and covered with plywood prior to June 20, 2008.

On Monday, June 23, 2008, O'Bryan reported the incident to his supervisor. The supervisor sent O'Bryan to Dr. Jundi at the Sterling Rock Falls Clinic. Dr. Jundi recommended O'Bryan rest, ice, compress, and elevate his ankle and remain off work for two days.

On Wednesday, June 26, 2008, O'Bryan filed an incident report with Sara Lee. He complained of pain in his right ankle and in his shoulder. He also described two holes drilled into the concrete. That same day, O'Bryan's supervisor investigated the construction site at Wal-Mart. He noticed two holes in the construction site near the receiving door entrance. The supervisor was unable to recall the exact location of the holes and whether or not they were covered. He spoke with two Wal-Mart employees-the employee stationed at the receiving door and the assistant manager-about his investigation. The assistant manager was already aware of the injury.

Dr. Liakos treated O'Bryan on October 21, 2008. Initial treatments were conservative and included placing the right foot in an immobilizing boot and undergoing physical therapy. After no significant improvement, Dr. Liakos recommended surgical intervention.

In March 2009, Dr. Liakos performed surgery on O'Bryan's right ankle. Dr. Liakos indicated O'Bryan suffered from a longitudal split in his peroneus brevis tendon. To correct the split in his tendon, Dr. Liakos sutured the tendon together and removed some inflammatory tissue. Dr. Liakos then used a bone saw to cut off a portion of O'Bryan's heel. After he removed a portion of the heel, he realigned the bone to decrease stress on the outside part of the ankle and secured the bone using two titanium screws. After surgery, O'Bryan required the use of a wheelchair and scooter until April 24, 2009.

On May 7, 2010, O'Bryan filed a petition alleging Wal-Mart and HCC were negligent in causing his injuries. HCC and Wal-Mart denied the allegations.

On January 30, 2012, the case was tried to a jury. At the close of O'Bryan's case, both HCC and Wal-Mart moved for a directed verdict. The district court denied both motions. Throughout the six-day jury trial involving twenty-four witnesses and over sixty exhibits, HCC and Wal-Mart presented testimony disputing every element of O'Bryan's negligence claim, including the existence and location of the hole in question, the cause of O'Bryan's injury, the amount of damages incurred, and whether O'Bryan failed to mitigate those damages. The jury returned a verdict for O'Bryan. The jury found Wal-Mart 35% at fault, HCC 30% at fault, and O'Bryan 35% at fault. The jury awarded O'Bryan $344,000 in damages in the following amounts:

Past medical expenses: $64,000 Future Medical expenses: $10,000 Loss of Time-Earning Past $20,000 Loss of Future Earning Capacity: ...


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