CHARLESTON – The state Supreme Court has affirmed a Wood Circuit Court judge’s ruling finding Walmart partly responsible for a woman’s injuries in a $16.9 million jury verdict.
In its opinion, the Justices maintain Wood Circuit Judge J.D. Beane correctly judgment entry making Walmart responsible for 30 percent of Johna Diane Ankrom’s injuries or the award of pre-judgment interest on her medical expenses.
According to the opinion, a shoplifter collided with Ankrom as he tried to elude capture by employeers inside a Walmart in Parkersburg in February 2015. She was injured and filed a lawsuit in May 2015 against the retailer and shoplifter Robert Leist. During a 2019 trial, a Wood County jury awarded her joint and several damages of $16.9 million. The jury placed 30 percent of the blame on Walmart and the rest on Leist.
Walker
Walmart challenged the jury’s findings, arguing Leist was solely responsible for Ankrom’s injuries. It also said evidentiary and instruction errors were made, requiring a new trial. Beane denied Walmart’s motion. Walmart then appealed the matter to the Supreme Court.
Justice Beth Walker authored the 43-page majority opinion. Justice Evan Jenkins and Chief Justice Tim Armstead filed a separate opinion concurring in part and dissenting in part.
The opinion details the incident through testimony and surveillance footage. After Walmart employees detailed Leist and ushered him back into the store, he ran away into the store. He collided with Ankrom’s shopping cart. Her knee gave out, and she fell to the floor as the cart fell on top of her. Her granddaughter, who was in the cart, was thrown to the floor as well, but she was not injured.
Ankrom was taken to Camden Clark Memorial Hospital, where she was treated for severe angina. After experiencing more pain for two weeks, she was life-flighted to the Cleveland Clinic for surgery to treating bruising, necrosis and microperforations in her small intesting. Since the incident, she has had more than 20 hospitalizations, six surgeries and other emergency room visits. At the time of the trial in 2019, doctors were considering an intestinal transplant.
“Walmart incorrectly asserts that the evidence offered at trial indisputably showed that its employees complied with (company) policy (in apprehending Leist),” Walker writes. “We find that a reasonable juror could have concluded that in this case Walmart employees exposed Ms. Ankrom to a foreseeable high risk of harm in the course of apprehending Mr. Leist and, therefore, that Walmart owed a duty to Ms. Ankrom to protect her from his criminal conduct.”
Walker also writes that a juror could have concluded Leist’s flight was foreseeable or should have been to Walmart employees.
“A reasonable juror could have also concluded that Mr. Leist’s decision to flee inside the store did not operate independently of his apprehension b Walmart employees in the store’s vestibule, so that his flight was not the sole proximate cause of Ms. Ankrom’s injury,” she writes.
Walmart also argued it was entitled to a new trial because Beane erred when he refused to instruct the jury on the concept of intervening cause. The Justices disagreed, noting that Walmart’s attorneys told jurors that if they found Leist’s decision to flee was his own, then they should have answered “No” to the verdict form question, “Do you find that Walmart was negligent and such negligence was a proximate cause of the injuries sustained by Diane Ankrom on February 23rd, 2015?”
“The circuit court’s refusal to instruct the jury on intervening cause did not seriously impair Walmart’s ability to effectively present its intervening cause defense,” Walker writes. “So, any error by the circuit court in refusing that instruction is not harmful, reversible error.”
Walmart also contends that because Ankrom received disability benefits from a condition that preceded the incident and didn’t pay for medical expenses incurred, it shouldn’t have to pay the 4 percent pre-judgment interest on the $2.5 million jury award for past medical expenses. Again, the Justices disagreed based on previous rulings.
In his concurring and dissenting opinion, Jenkins writes that he and Armstead agree with the affirmance of the assignment of responsibility for damages. But, they disagree with the idea that no instructional error occurred during Beane’s trial.
“A trial court should instruct the jury on the party’s theory of the case where the facts and the law support the instruction,” Jenkins writes. “The majority appears to suggest that, because Walmart argued its intervening cause theory during the trial of the case and advocated this defense to liability during its closing argument, this factor … is satisfied without an intervening cause instruction.
“I disagree because a party’s closing argument clearly is not the same as, nor is it a suitable substitute for, a trial court’s charge to the jury and the instructions set forth therein.”
Walmart was represented before the Supreme Court by Jeffrey Wakefield, Erica Baumgras and Mitchell Tuggle of Flaherty Sensabaugh Bonasso in Charleston as well as Elbert Lin of Hunton Andrews Kurth in Richmond, Va. Ankrom was represented by James Bordas III, Scott Blass and James Stoneking of Bordas & Bordas in Wheeling as well as Todd Wiseman of Wiseman Law Firm in Vienna.
West Virginia Supreme Court of Appeals case number 19-0666
