Doris Thews v. Wal-Mart Stores, Inc. , 560 F. App'x 828 ( 2014 )

Case: 13-11455 Date Filed: 03/19/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________
No. 13-11455
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D.C. Docket No. 8:11-cv-01829-RAL-MAP
DORIS THEWS,
Plaintiff-Appellant,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
_________________
Appeal from the United States District Court
for the Middle District of Florida
_________________
(March 19, 2014)
Before WILSON, Circuit Judge, and MIDDLEBROOKS, ∗ and ALBRITTON, **
District Judges.
∗
Honorable Donald M. Middlebrooks, United States District Judge for the Southern
District of Florida, sitting by designation.
**
Honorable W. Harold Albritton III, United States District Judge for the Middle District
of Alabama, sitting by designation.
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PER CURIAM:
Appellant Doris Thews (“Appellant” or “Ms. Thews”), a regular at her local
Wal-Mart, was retrieving a shopping cart at the store when she fell to the ground of
the shopping cart vestibule. It turns out that a Wal-Mart employee was pushing
several shopping carts into the vestibule when Ms. Thews fell; however, there was
no video evidence of the incident, nor could anyone definitively point to the
moving stack of shopping carts as the cause of the fall. As a result of this incident,
Ms. Thews sustained serious spinal injuries, which required surgery to insert two
titanium rods and eight screws into her spine.
Ms. Thews filed suit against Wal-Mart in the Middle District of Florida.
The Complaint alleges state law negligence claims against Wal-Mart. There is
only one “count” in the Complaint, which is entitled “Claim Against Wal-Mart
Stores, Inc.” The Complaint alleged that Wal-Mart breached its duty to Ms. Thews
by: failing to properly train its employees; improperly designing and maintaining
the shopping cart vestibule area; and failing to warn customers that the shopping
carts might be pushed toward them. The Complaint did not allege vicarious
liability against Wal-Mart for negligence of its employees in mishandling shopping
carts.
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The case proceeded to trial. After both sides rested their cases, Wal-Mart
moved for judgment as a matter of law (“JMOL”) arguing that Appellant failed to
present evidence to support her direct liability claims. The district court agreed,
granted JMOL in favor of Wal-Mart, and dismissed the jury.
In an effort to save Appellant’s case, Appellant’s counsel objected to the
ruling, and sought to amend the Complaint pursuant to Federal Rule of Civil
Procedure 15(b) to conform the pleadings to the evidence presented at trial.
Specifically, Appellant’s counsel sought to raise a general negligence claim and
add the doctrines of res ipsa loquitur and vicarious liability. Appellant’s counsel
also asked for a continuance under Rule 15(b)(1). All of Appellant’s requests were
denied by the district court.
On appeal, Appellant argues that (1) the district court erred as a matter of
law in granting Wal-Mart’s motion for JMOL, and (2) the district court abused its
discretion in denying Appellant’s Rule 15 motions.
I.
We first address whether the district court erred in granting Wal-Mart’s
motion for JMOL. We review a district court’s ruling on a motion for JMOL de
novo, Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1227 (11th Cir. 2007)
(citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 902 (11th Cir. 2004)), and
examine the trial evidence in the light most favorable to the non-moving party.
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Celebrity Cruises, Inc., 394 F.3d at 902. Because jurisdiction is based on diversity
jurisdiction, Florida substantive law is applied.
As an initial matter, we are not persuaded by Appellant’s argument that her
case involved a “general” negligence claim against Wal-Mart on the basis of
vicarious liability. First, as noted by the district court, the Complaint specifically
alleged six distinct ways in which Appellant claimed Wal-Mart breached its duty
of care to her. None of these alleged breaches indicated a “general” negligence
claim, and the only mention of respondeat superior related to the claim that Wal-
Mart failed to properly train its employees. Moreover, any suggestion of vicarious
liability – however slight it may be – was alleged as factual background, not as part
of her cause of action. 1
Second, throughout trial, Appellant stayed course in her theories of direct
negligence in a manner consistent with the Complaint, and presented no evidence
of employee negligence. By way of example, in opening statements, Appellant’s
counsel advised the jury that the case was about safety rules and Wal-Mart’s duty
to maintain a safe store. (Tr., Vol. I, at 13:20 to 14:5) (“The reason that we’re here
today and the crux of this case is all about safety rules. . . . Wal-Mart has an
obligation to make sure that it has safety rules in place so that when people come
1
Although a Joint Pre-Trial Statement filed with the court includes a reference by Appellant to
negligence of Wal-Mart employees, it does not list this and Wal-Mart’s liability for that either as
one of the Uncontested Facts or as one of the numerous Facts Remaining To Be Litigated.
Furthermore, the Joint Pre-Trial Statement was not adopted by the court into a Pre-Trial Order,
so the Complaint is controlling.
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into the store and take a cart they are not hurt. This case is about how Wal-Mart
violated that safety rule.”). Appellant’s counsel then discussed the involvement of
Wal-Mart’s employees, Mr. Wesley Patterson and Mr. Eames Josephat, but
counsel made no mention or insinuation that either of these individuals acted
negligently, or that Wal-Mart is vicariously liable for its employees’ negligent acts.
(Tr., Vol. I, at 16-18).
Appellant, represented by experienced counsel, pleaded direct negligence
against Wal-Mart and continued on that theory of liability through trial. Given
such, coupled with the fact that there was no evidence at trial of employee
negligence, the district court did not err in holding Appellant to her chosen and
argued theory of direct negligence.2
We now turn to whether JMOL was appropriate. When deciding a Rule 50
motion, the district court must decide whether there has been “a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). A
defendant is entitled to JMOL when no reasonable jury could have reached a
verdict for the plaintiff on a particular claim. Collado v. United Parcel Serv., Co.,
419 F.3d 1143, 1149 (11th Cir. 2005) (citations omitted). We review all the record
evidence and draw all reasonable inferences in the light most favorable to
Appellant, the non-moving party in this case. Cleveland v. Home Shopping
2
This reasoning applies equally – if not more so – to Appellant’s argument that the district court
should have allowed and considered the doctrine of res ipsa loquitur.
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Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir. 2004) (citing Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 148-151, 120 S. Ct. 2097 (2000)).
After carefully reviewing the record, and having the benefit of oral
argument, we agree with the district court that there was insufficient evidence
presented to send this case to the jury. In accordance with Cooper Hotel Services,
Inc. v. MacFarland, 662 So. 2d 710 (Fla. 2d DCA 1995), and Insurance Company
of the West v. Island Dream Homes, Inc., 679 F.3d 1295 (11th Cir. 2012), cases
cited by the district court, Appellant was required to submit some evidence of the
industry standard of care regarding the design and maintenance of shopping cart
vestibules. This could have been done by introducing expert testimony or
testimony of retail industry custom relating to shopping cart vestibules. See Island
Dream Homes, 679 F.3d at 1298. At trial, Appellant presented no evidence
whatsoever of any industry custom or standard of care. Accordingly, the district
court properly granted JMOL.
II.
Appellant also argues that the district court abused its discretion by denying
her Rule 15(b) motions to amend the complaint. The decision whether to allow a
party to amend the complaint at the close of trial to conform to the evidence
presented is within the discretion of the trial court. Borden, Inc. v. Fla. E. Coast
Ry. Co., 772 F.2d 750, 758 (11th Cir. 1985). However, when issues not within the
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pleadings are tried by the express or implied consent of the parties, amendment
must be allowed. Id.
After the close of evidence and after the district court granted JMOL in favor
of Wal-Mart, Appellant sought to amend the Complaint to include a claim for
vicarious liability for the purported negligent conduct of Wal-Mart’s employees.
Specifically, Appellant asked the court to let the case go to the jury on the issue of
whether Mr. Patterson was negligent. Appellant also asserted that Wal-Mart
consented to a direct negligence trial by listing Mr. Patterson and Mr. Josephat as
witnesses. Wal-Mart countered by arguing that an amendment would be
prejudicial to Wal-Mart because Wal-Mart focused its entire case – beginning in
discovery and continuing through opening statements at trial – on the training of
Wal-Mart’s employees and the design and maintenance of the store’s shopping cart
vestibule.
We find that the district court did not abuse its discretion in denying
Appellant an opportunity to amend her complaint to conform to the evidence at
trial. Additionally, the record does not establish that Wal-Mart consented to try the
issue of employee negligence.
AFFIRMED.
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