The Clinton Herald, Clinton, Iowa

January 10, 2013

State court denies Wal-Mart appeal

By Scott Levine
Associate Editor

DES MOINES — A state court denied an appeal by a construction company and Wal-Mart involving an incident in Clinton that resulted in more than $300,000 in damages awarded to a man in 2012.

The Iowa Court of Appeals affirmed a ruling by a Clinton County jury that awarded Patrick J. O’Bryan $344,000 for Wal-Mart and Henry Carlson Company’s negligence involving a fall O’Bryan suffered in 2008 at Clinton’s Wal-Mart. The jury found that each party was responsible, putting 35 percent of the blame on O’Bryan and Wal-Mart, and 30 percent on HCC.

According to court documents, O’Bryan stepped into a hole located outside of the vendor receiving door at Wal-Mart on June 20, 2008, while delivering bread for his employer, Sara Lee Bakery. The area was under construction, and HCC was responsible for the construction.

Days later, O’Bryan reported the incident to his supervisor, and eventually filed an incident report with Sara Lee.

O’Bryan was treated for injuries, but without significant improvement, a medical official recommended surgery for the injury suffered at the construction site. More than a year after the surgery, O’Bryan filed a petition alleging Wal-Mart and HCC were negligent in causing the injuries.

On Jan. 30, 2012, the case moved to trial, where jury members heard from 24 witnesses and saw more than 60 exhibits during the six-day trial.

HCC and Wal-Mart presented testimony disputing 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, instead, voted against those claims.

Wal-Mart and HCC filed motions for judgment notwithstanding verdict and motions for a new trial, but the district court denied the motions.

“There was substantial evidence introduced on both sides of each hotly contested issue relating to liability and damages and it is not for the court to substitute its judgment for the jury’s judgment with respect to these fact issues,” the court wrote.

When appealing to the Iowa Court of Appeals, Wal-Mart and HCC believed the court erred in allowing a photograph to be shown and believed its motion for a new trial should be granted. The picture, an image of O’Bryan on a couch with a small American flag pillow, was shown as evidence by the prosecution during the trial. HCC and Wal-Mart objected to the exhibit, based on relevance, foundation and prejudice. The trial court overruled the objection, and admitted the exhibit into evidence.

O’Bryan maintained the photograph was introduced as evidence of his mental suffering following the injury. HCC and Wal-Mart argued the photograph was introduced as evidence of O’Bryan’s financial status to elicit sympathy from the jury.

Also, Wal-Mart and HCC moved for a new trial based on allegations that inconsistency evidence made the jury prejudice.

Both of those claims were denied by the court.

“The jury’s verdict does not appear to be the result of passion or prejudice, is supported by substantial evidence, and administers substantial justice between the parties,” the Court of Appeals wrote.