Juries May Consider Plaintiff’s Conduct Even When Contributory Negligence Not Pleaded – Dupont v. Fred’s Stores of Tennessee

By September 7, 2011 July 10th, 2019 Premises Liability

Here in Missouri, we follow a legal doctrine called pure comparative negligence that can have important consequences for people with serious personal injuries. In my work as a St. Louis personal injury attorney, I am frequently asked whether it matters that the injury was partly the fault of the injured person, and of course this is a defense to an injury lawsuit. Fortunately, our state allows financial recovery even when you are partly at fault; your financial damages will simply be reduced according to the amount of fault you bear. In Arkansas, this is only true if the injured person is 49 percent or less at fault; a greater proportion of fault means the victim cannot recover at all. That led to protracted litigation in Dupont et al. v. Fred’s Stores of Tennessee, a decision by the Eighth U.S. Circuit Court of Appeals in a case involving a woman’s injury from falling bins at a retail store.
Paula Dupont asked an employee at Fred’s Stores in Holiday Island, Ark., to get some plastic bins off the top shelf so she could look at them. She decided not to buy them and moved into other parts of the store, but returned later. That’s when she says the plastic bins fell from the top shelf onto her head, causing a concussion and strain to her neck. She did not describe the incident in detail, but store employees felt it was necessary to have a friend pick her up from the store. The Duponts allege the concussion caused personality changes, depression and continuing problems with memory, concentration and focus. They sued Fred’s Stores for premises liability and failure to adequately train its employees. Before trial, the Duponts unsuccessfully moved to exclude all evidence of Paula Dupont’s possible contributory negligence, arguing that Fred’s Stores was not pleading contributory negligence and there was no evidence that she had been negligent. The district judge allowed the store to cross-examine Paula Dupont on the issue. He also allowed jury instructions that included the possibility of contributory negligence, over their objections. The jury found for Fred’s Stores and the Duponts appealed the contributory negligence issues.
On appeal, the Duponts argued that Fred’s Stores forfeited a contributory negligence defense by failing to plead it before the deadline to amend had passed. The Eighth Circuit agreed to a point. But it said failing to raise a contributory negligence defense does not bar a defendant from introducing any evidence related to the plaintiff’s behavior. Thus, denying their pretrial motion was not an abuse of discretion. It next turned to the jury instructions issues. The Duponts had proposed to instruct the jury on a theory of res ipsa loquitur (“the thing speaks for itself”), which was rejected, and objected fruitlessly to jury instructions 16, which was inconsistent with res ipsa loquitur, and 14, which implicated contributory negligence. The Eighth said the district court was correct to reject the res ipsa loquitur instruction, because it was not clear that Fred’s Stores had exclusive control over the plastic bins; any customer could have disturbed them. For the same reason, it rejected arguments about instruction 16. Finally, the appeals court said instruction 14 may or may not have been erroneous, but it was ultimately harmless. After all, the instruction did not prevent the jury from finding that Fred’s Stores was ultimately completely responsible. Thus, it affirmed all of the district court’s rulings. Judge Melloy dissented, arguing that instruction 14 was in clear error under Arkansas caselaw, and that the store could have foreseen that another customer might disturb the plastic bins in an unsafe way.
As a Missouri premises liability lawyer, I agree with this dissent. The legal doctrine of premises liability — which gives businesses a responsibility to ensure their premises open to the public are safe — requires employers to take action on reasonably foreseeable risks. This means things like clearing ice off a front walkway, but no obligation to guess that something unusual and unsafe might happen. I agree with the judge that it is reasonable to guess that customers might disturb items on any shelf, even a top shelf, and that heavy items stored on high shelves might end up disturbed in an unsafe way. Thus, the underlying safety issue was still in the control of the store. As a southern Illinois slip and fall attorney, I represent clients from many backgrounds who were injured on someone else’s property, and control over the underlying safety hazard is always, always an issue.


If you or someone you love was seriously hurt on someone else’s property, you should talk to Carey, Danis & Lowe about legal action. For a free, confidential case evaluation, send us a message online or call us toll-free at 1-877-678-3400.
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