AVERTY V. WAL-MART STORES, INC.
265 P.3d 456 (2011)
NATURE OF THE CASE: The court granted Wal-Mart (D) a new trial after Averty (P) got a
jury award for $15 million in damages from a slip and fall and P appealed.
FACTS: P slipped in grease while making a delivery to D. The grease had accumulated in
the grocery receiving area. P ruptured a disc in her spine and injured her shoulder and
neck. These injuries ended her career as a truck driver and have left her unable to perform
many daily functions. P sued for negligence and premises liability. P's attorney
unsuccessfully sought to obtain records from D documenting the grease spill. D denied the
existence of the grease spill, noting in its opening statement that there had been no grease
spill and, if there had been, D would have records documenting it. P eventually contacted
Weld County to determine if it had records documenting the grease spill. Weld County told P
to contact the City of Greeley. A colleague then contacted the City of Greeley while P's
attorney returned to the trial. D made its opening statement at trial and denied the grease
spill. P got the information regarding the spill from the county. P eventually called as a
witness Jonnie Shommer, who was D's corporate representative designated under C.R.C.P.
30(b)(6). After Shommer testified that there had been no grease spill, P impeached her
testimony with factual questions based on the Greeley report. P did not specifically refer
to the report, nor did he introduce the report into evidence. When P concluded the direct
examination of Shommer, D requested, and was granted, a recess. D's attorney asked P whether
he had been reading from a document when he questioned Shommer. P then gave D a copy of the
Greeley report. D objected to the use of the report. The court overruled D's objection. D
admitted the Greeley report into evidence. D then informed the court and P that it had
located an assistant manager who remembered the grease spill and numerous documents
corroborating the existence of the spill, including documents from three companies who were
involved in cleaning up the spill. From that point forward, D ceased to deny the existence
of the grease spill and instead asserted that it exercised reasonable care to clean up the
spill. The jury awarded P $15 million in damages, including: $4.5 million in economic
damages; $5.5 million in non-economic damages; and $5 million for her physical impairment.
The trial court ultimately reduced the non-economic damages award to the statutory cap of
$366,250 set forth in section 13-21-102.5(3), C.R.S. (2011). D moved for a new trial based
on surprise, non-disclosure, and unfair prejudice. The trial court granted D's motion,
holding that P should have disclosed the Greeley report. The trial court also found that the
jury's damages award was excessive, not supported by the evidence, and 'could only be the
result of prejudice and bias and the jury's desire to punish Wal-Mart.' This appeal resulted.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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