ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
George T. Patton, Jr. Karl L. Mulvaney
SUPREME COURT OF INDIANA
Bryan H. Babb Nana Quay-Smith
Indianapolis, Indiana Candace L. Sage
Eric A. Riegner
Indianapolis, Indiana James H. Young
WAL-MART STORES, INC., )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 29S05-0202-CV-131
) Indiana Court of Appeals
RUTH ANN WRIGHT, ) Cause No. 29A05-0009-CV-403
Appellee (Plaintiff Below). )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-9607-CT-320
ON PETITION FOR TRANSFER
September 11, 2002
Factual and Procedural Background
Ruth Ann Wright sued for injuries she sustained when she slipped on a
puddle of water at the Outdoor Lawn and Garden Corral of the Carmel
Wal-Mart. Wright alleged Wal-Mart was negligent in the maintenance, care and inspection
of the premises, and Wal-Mart asserted contributory negligence. By stipulation of the
parties, a number of Wal-Marts employee documents assembled as a Store Manual were
admitted into evidence at the jury trial that followed. Several of these
detailed procedures for dealing with spills and other floor hazards.
See footnote The applicability
of the Manual to the open-air lawn and garden corral was disputed.
Both the manager of the corral at the time of Wrights fall and
a former assistant manager of the store testified that the Manual applied only
inside the store, not in the corral. Another former assistant manager of
the store first testified that the Manual did not apply to the corral,
but then testified that the sections of the Manual dealing with floor hazards
and spills did apply. A former general manager of the Carmel store
testified that the Manual did not specifically apply to the corral, but should
be used as a guide to clean up anything that would be considered
a hazard. Finally, Janice Walker, a former Carmel Wal-Mart employee who was
reporting for work when she witnessed Wrights fall, testified that she would sweep
or squeegee water in the corral on an as required basis, usually after
a rainfall or plant watering. Walker also testified that she was a
member of the stores safety team and that the puddle where Wright fell
was of the type Walker would normally sweep or squeegee.
At the end of the trial, Wright tendered the following instruction:
There was in effect at the time of the Plaintiffs injury a store
manual and safety handbook prepared by the Defendant, Wal-Mart Stores, Inc., and issued
to Wal-Mart Store, Inc. employees. You may consider the violation of any
rules, policies, practices and procedures contained in these manuals and safety handbook along
with all of the other evidence and the Courts instructions in deciding whether
Wal-Mart was negligent.
The violation of its rules, policies, practices and procedures are a proper item
of evidence tending to show the degree of care recognized by Wal-Mart as
ordinary care under the conditions specified in its rules, policies, practices and procedures.
Wal-Mart objected on the ground that you can set standards for yourself that
exceed ordinary care and the fact that youve done that shouldnt be used,
as this second paragraph says, as evidence tending to show the degree that
you believe is ordinary. The jury decides what ordinary care is.
The court overruled the objection and the tendered instruction became Final Instruction 17.
The court also instructed the jury that, inter alia, (1) the jury
was to consider all the instructions as a whole, and should not single
out any certain sentence or any individual point or instruction and ignore the
other instructions; (2) Wal-Mart was required to maintain its property in a reasonably
safe condition suitable for use by its customers; (3) Wal-Mart was negligent if
the jury found Wal-Mart had failed to use reasonable care to make its
premises reasonably safe for Wright; (4) Wal-Mart was not required to guarantee its
customers safety, but only to exercise reasonable care to prevent harm; (5) negligence
is the failure to do what a reasonably careful and prudent person would
do under the same or similar circumstances or the doing of something that
a reasonably careful and prudent person would not do under the same or
similar circumstances; (6) negligence is the failure to exercise reasonable or ordinary care;
and (7) reasonable or ordinary care is such care as a reasonably careful
and ordinarily prudent person would exercise under the same or similar circumstances.
The jury found Wal-Mart liable and assessed Wrights total damages at $600,000, reduced
to $420,000 by 30% comparative fault attributed to Wright. Wal-Mart appealed, contending
that the second paragraph of Final Instruction 17 was an improper statement of
law that incorrectly altered the standard of care from an objective one to
a subjective one. The Court of Appeals affirmed, holding the challenged paragraph
of the instruction was proper because it did not require the jury to
find that ordinary care, as recognized by Wal-Mart, was the standard to which
Wal-Mart should be held, and because the trial court had not instructed the
jury that reasonable or ordinary care was anything other than that of a
reasonably, careful and ordinarily prudent person.
Wal-Mart Stores, Inc. v. Wright, 754
N.E.2d 1013, 1018 (Ind. Ct. App. 2001). This Court granted transfer.
In reviewing a trial courts decision to give or refuse a tendered instruction,
this Court considers whether the instruction (1) correctly states the law, (2) is
supported by the evidence in the record, and (3) is covered in substance
by other instructions. Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001).
The trial court has discretion in instructing the jury, and we will
reverse on the last two issues only when the instructions amount to an
abuse of discretion. When an instruction is challenged as an incorrect statement
of the law, however, appellate review of the ruling is de novo.
Cf. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Here, Wal-Mart
argues that the second paragraph of Final Instruction 17 incorrectly stated the law
because it invited jurors to apply Wal-Marts subjective view of the standard of
care as evidenced by the Manual, rather than an objective standard of ordinary
care. Wright responds that the paragraph simply allows jurors to consider Wal-Marts
subjective view of ordinary care as some evidence of what was in fact
ordinary care, and does not convert the objective standard to a subjective one.
The Court of Appeals agreed with Wright, holding that the paragraph was
proper because it did not require the jury to find that ordinary care,
as recognized by Wal-Mart, was the standard to which Wal-Mart should be held,
and because the trial court had not instructed the jury that reasonable or
ordinary care was anything other than that of a reasonably, careful and ordinarily
prudent person. 754 N.E.2d at 1018.
I. Work Rules as Standards of Ordinary Care
Initially, we note that implicit in each of these positions, and explicit in
the second paragraph of the instruction, is the assumption that the Manual in
fact tend[s] to show the degree of care recognized by Wal-Mart as ordinary
care under the conditions specified in [the Manual]. Wal-Mart also objected to
this assumption, contending you can set standards for yourself that exceed ordinary care
and the fact that youve done that shouldnt be used, as this second
paragraph says, as evidence tending to show the degree that you believe is
ordinary. We agree. The second paragraph of the instruction told the
jurors that because Wal-Mart has established certain rules and policies, those rules and
policies are evidence of the degree of care recognized by Wal-Mart as ordinary
care. But Wal-Mart is correct that its rules and policies may exceed
its view of what is required by ordinary care in a given situation.
Rules and policies in the Manual may have been established for any
number of reasons having nothing to do with safety and ordinary care, including
a desire to appear more clean and neat to attract customers, or a
concern that spills may contaminate merchandise.
The law has long recognized that failure to follow a partys precautionary steps
or procedures is not necessarily failure to exercise ordinary care. 57A Am.
Jur. 2d Negligence § 187 at 239 (1998) (failure to follow company rule
does not constitute negligence per se; jury may consider rule, but rule does
not set standard of conduct establishing what law requires of a reasonable person
under the circumstances); 1 Dan B. Dobbs, The Law of Torts § 165
(2000) (defendants rules or practices are evidence bearing on the reasonable care issue,
but do not ordinarily count as the standard of care; limiting instruction may
be required, advising jury that rules cannot set a higher duty than is
required by law); 1 J.D. Lee and Barry A. Lindahl, Modern Tort Law
§ 3.29 (1996) (Company rules are generally admissible but not conclusive on the
question of the standard of care.); Rupert v. Clayton Brokerage Co., 737 P.2d
1106, 1111 (Col. 1987) (internal rules of brokerage firm relevant to standard of
care for breach of fiduciary duty, but not determinative of the standard of
care); Sherman v. Robinson, 606 N.E.2d 1365, 1369 n.3 (N.Y. 1992) (defendants company
manual did not create a separate duty of care; where internal rules require
a standard that transcends reasonable care, breach of rules cannot be considered evidence
of negligence); cf. Boutilier v. Chrysler Ins. Co., No. 8:99-cv-2270-T-26MAP, 2001 U.S. Dist.
LEXIS 5526, at *4 (M.D. Fla. Jan. 31, 2001) (in negligence action, mere
fact that defendant has internal corporate policy does not create a legal duty
or cause a breach of that duty). We think this rule is
salutary because it encourages following the best practices without necessarily establishing them as
a legal norm.
II. Ordinary Care as an Objective Standard
There is a second problem with the instruction. Even if the Manual
reflected Wal-Marts subjective view of ordinary care, the second paragraph of the instruction
incorrectly states the law because it invites jurors to apply Wal-Marts subjective viewas
evidenced by the Manualrather than an objective standard of ordinary care. It
is axiomatic that in a negligence action [t]he standard of conduct which the
community demands must be an external and objective one, rather than the individual
judgment, good or bad, of the particular actor. W. Page Keeton et
al., Prosser & Keeton on the Law of Torts § 32, at 173-74
& n.3 (5th ed. 1984) (citing The Germanic, 196 U.S. 589 (1905)); see
also id. § 32, at 174 n.2 (The standard of care exacted by
the law is an external and objective one and the law does not
permit the defendant to make the determination . . . .) (quoting Fancher
v. Southwest Mo. Truck Ctr., Inc., 618 S.W.2d 271, 274 (Mo. Ct. App.
1981)); cf. Ware v. State, 441 N.E.2d 20, 21 n.1 (Ind. Ct. App.
1982), rehg denied (An objective standard of conduct is external, formulated with reference
to community values. A subjective standard, by contrast, refers to the judgment
or perceptions of the particular actor.) (citing W. Prosser, Handbook of the Law
of Torts 150 (4th ed. 1971)). An individual actors belief that he
is using reasonable care is immaterial. Keeton, supra, § 32, at 174
n.3. This door swings both ways. A defendants belief that it
is acting reasonably is no defense if its conduct falls below reasonable care.
Similarly, a defendants belief that it should perform at a higher standard
than objective reasonable care is equally irrelevant. As one court succinctly put
it, a partys own rules of conduct are relevant and can be received
into evidence with an express caution that they are merely evidentiary and not
to serve as a legal standard. Mayo v. Publix Super Mkts, Inc.,
686 So.2d 801, 802 (Fla. Dist. Ct. App. 1997).
Wright cites four cases in support of the instruction: Smith v. Cleveland C.C.
& St.L. Ry. Co., 67 Ind. App. 397, 117 N.E. 534 (1917); N.Y.
Cent. Ry. Co. v. Wyatt, 135 Ind. App. 205, 184 N.E.2d 657 (1962);
Cent. Ind. Ry. Co. v. Anderson Banking Co., 143 Ind. App. 396, 240
N.E.2d 840 (1968); and Frankfort v. Owens, 171 Ind. App. 566, 358 N.E.2d
184 (1976). These authorities support the admissibility of the Manual, which Wal-Mart
does not contest. They do not support an instruction to consider any
violation of the Manual as evidence tending to show the degree of care
recognized by Wal-Mart as ordinary care under the conditions. We conclude that
the second paragraph of Final Instruction 17 was an improper invitation to deviate
from the accepted objective standard of ordinary care and therefore incorrectly stated the
III. Harmless Error
When a jury instruction incorrectly states the law, we assume that the erroneous
instruction influenced the verdict and will reverse unless the verdict would have been
the same under a proper instruction. Vergara by Vergara v. Doan, 593
N.E.2d 185, 187 (Ind. 1992); Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind.
1990). This instruction suffered from two flaws. It equated Wal-Marts procedures
with reasonable care and it asserted that Wal-Marts subjective view of reasonable care
was relevant. No other instruction corrected these problems. Accordingly, read together
these instructions introduced the concept of reasonable or ordinary care, directed the jurors
to consider the Manual as evidence tending to show what Wal-Mart recognized that
ordinary care to be, and thereby implied that a violation of the Manual
was a violation of ordinary care.
Had the Manual played a smaller role in the trial, perhaps this error
could be deemed harmless. However, the applicability of the Manual to the
lawn and garden corral and the effect of a violation of the Manual
were hotly contested and formed a substantial part of Wrights case. During
voir dire Wright foreshadowed the introduction of the Manual in the following exchange
with a potential juror about her own work rules:
Q. What if you didnt, how would you feel about it if you didnt
follow those procedures that are in your handbooks and in your manuals?
A. How would I feel?
Q. As far as whether you did what was reasonable?
A. If I didnt follow what I was supposed to follow, then how would
I feel about it?
Q. Would you feel like you hadnt done what you were supposed to do?
A. Of course. Of course, yes.
Q. And kind of fell below a standard of what the company felt was
reasonable under the circumstances.
In her opening statement, Wright again relied on the Manual:
And thats what Im talking about here, its not absolutely guaranteed safe.
We dont hold them to that standard. We know theres no guarantees
in life. But the evidence is that they failed to use reasonable
care. Evidence of what is reasonable care in their own safety manual
which youll see throughout this trial . . . .
In closing argument Wright contended that Wal-Mart [d]idnt follow its own rules by
squeegeeing and brooming, didnt follow its own rules by using safety cones or
cordoning off the area, did not follow its own procedures by leaving the
hazard unattended, and again read the relevant portions of the Manual to the
jury. Wright also stated that [t]he Judge is going to instruct you
about these manuals and rules and safety rules and how they can be
of guidance to you. I think theyre guidance because they show what
is reasonable under the circumstances. Final Instruction 17 was then read to
the jury verbatim. On these facts the Manual took on heightened evidentiary
significance, and the potential impact of the flawed paragraph is apparent.
The judgment of the trial court is reversed. This action is remanded
for a new trial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Stipulated Exhibit 10, entitled Stocking General Lesson, instructed employees to [r]eact quickly
to any spills that are on the floor, and to [n]ever leave a
spill unattended. Stipulated Exhibit 11, entitled Store Housekeeping Floor Care, counseled
that [w]hen a liquid or granular substance is spilled, the area must be
cordoned off until the floor is clear and safe for Customer traffic.
The spill must be cleaned immediately. Stipulated Exhibit 12, entitled Customer Safety
Lesson, instructed employees to [c]orrect hazards immediately, and to use safety cones to
warn Customers and Associates of slippery floors. Stipulated Exhibit 13, entitled Safety
Handbook, reiterated the advice of the previous documents and instructed employees to [g]uard
spills until they are dry.