Baker v. Shavers, Inc. , 117 Idaho 696 ( 1990 )

JOHNSON, Justice.

This is a personal injury case. Robert and Doris Baker have appealed the jury’s determination that Doris and Shavers, Inc. were equally negligent in causing Doris’ injuries when she fell in the department store operated by Shavers. The Bakers also have appealed the trial court’s denial of their motion for judgment n.o.v. or for a new trial. We reverse the judgment and remand the case for a new trial on the basis of our decision in Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989).

I.

HARRISON v. TAYLOR APPLIES RETROACTIVELY.

The jury was instructed that Shavers had no duty to keep their premises safe from dangerous conditions that were known to Doris or that by the exercise of reasonable care should have been observed by her. The Bakers assert that this was error. We agree.

In Harrison v. Taylor we abolished the open and obvious danger doctrine. Although the Court’s opinion in Harrison did not address the question of its application to other cases, in a decision a few months later we applied Harrison retroactively. Arrington v. Arrington Bros. Constr., 116 Idaho 887, 891-92, 781 P.2d 224, 228-29 (1989). Therefore, we are bound to apply it retroactively in this case also. We point out that since Harrison was decided after the final judgment was entered in this case, the trial court was acting in good faith in relying on prior decisions of this Court upholding the open and obvious danger doctrine.

In Arrington we did not state our rationale for applying Harrison retroactively. However, the rationale is implicit in our decision. In determining whether a decision changing a rule of law previously established should be applied retroactively or prospectively, we have held that we should evaluate “1) the purpose of the decision, 2) reliance on the prior rule of law, and 3) the effect upon administration of justice.” Jones v. Watson, 98 Idaho 606, 609, 570 P.2d 284, 287 (1977).

The purpose of the decision in Harrison was to give injured invitees the benefit of the comparative negligence statute that was enacted by the legislature in 1971. I.C. § 6-801 (1979). By applying Harrison retroactively in Arrington, we have carried out the intention of the legislature by extending the comparative negligence rule to those invitees who have been injured since the comparative negligence statute went into effect. We note in passing that the applicability of comparative negligence was not raised as an issue in Bates v. Eastern Idaho Regional Medical Center, 114 Idaho 252, 755 P.2d 1290 (1988). Bates was the most recent decision of this Court applying the open and obvious danger doctrine prior to Harrison.

As to reliance on the open and obvious danger doctrine, we can imagine it is possible that some landowners may have allowed dangerous conditions to remain on their property because they believed they had protection under our prior decisions. However, until Harrison this Court had not had the opportunity to address the implication of the comparative negligence statute for the viability of the open and obvious danger doctrine. Therefore, there could have been no reliance on the doctrine in the face of a challenge under I.C. § 6-801.

We acknowledge that the effect of the retroactive application of Harrison in Arrington may be to require the retrial of some cases that have not reached final judgment. However, we are confident that our efficient and hardworking trial judges will be able to accommodate the relatively few cases that must be retried because of the change in the law of liability to an invitee.

II.

QUESTIONS OF LAW NECESSARY TO THE FINAL DETERMINATION OF THE CASE.

Since the result of our decision as to the applicability of Harrison is a reversal of the judgment and a remand for a new trial, it is appropriate for us to “pass upon and determine all the questions of law presented upon appeal the resolution of which are necessary to the final determination of the case.” I.C. § 1-205 (1979); Robertson v. Richards, 115 Idaho 628, 657, 769 P.2d 505, 534 (1987) (on rehearing 1989).

We conclude that all the issues raised about the trial court’s instructions to the jury are resolved by our primary holding as to the applicability of Harrison. We are confident that the trial court will be able to formulate correct instructions to the jury based on the law of comparative negligence.

This leaves three issues that were raised on appeal that may reoccur in a new trial: (1) the exclusion of the testimony of Bakers’ expert concerning the reason for the absence of prior accidents at the location where Doris was injured and concerning the duty of the Shavers to keep the premises safe during the remodeling of their store, (2) the admission in evidence of the shoes Doris was wearing at the time she was injured and (3) the exclusion of a demonstration of Doris walking in the shoes.

We give our trial courts broad discretion in the admission of evidence at trial and will reverse their decisions on these evidentiary questions only when there has been a clear abuse of discretion. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). We conclude that the trial court did not abuse its discretion in making any of the rulings to which the Bakers address their appeal.

We consider first the exclusion of expert testimony offered by the Bakers to explain why there had not been prior accidents at the location where Doris was injured. The Bakers presented the testimony of the manager of the store that there had been no complaints about the ramp that allegedly caused Doris to fall. The manager testified that previously there had been a wall in the vicinity of the ramp that prevented access to the side of the ramp. The testimony of the expert offered by the Bakers would have attempted to explain why there had not been prior complaints. In light of the explanation that had already been given by the manager, we believe the trial court was within its discretion not to allow the expert’s testimony on this issue. We note also that the trial court did allow the Bakers to present evidence of two other accidents that had occurred on the ramp prior to Doris’ fall.

As to the exclusion of expert testimony of the duty of the Shavers to keep the premises safe during the remodeling of the store, the trial court pointed out in its ruling that there were no workmen working in the store, nor was there any construction going on at the time of the accident. Therefore, the necessary premise for the expert's testimony was not present.

Next, we consider the admission of the shoes that Doris was wearing when she was injured. In our view the shoes were clearly relevant to the question of Doris’ negligence. That does not mean that we believe she was negligent in wearing the shoes, but their characteristics were certainly germane to the jury’s consideration of the cause of her fall.

As to the exclusion of a demonstration of Doris walking in the shoes, while we cannot see what harm there would have been to allowing her to do so, the trial court had in mind the fact that Doris had been coming to court in similar high heeled shoes during the trial. Also, testimony was allowed as to Doris’ ability to walk in high heeled shoes and the fact that she had won a dance contest wearing them. In light of these circumstances, we do not believe the trial court abused its discretion in excluding the demonstration.

III.

CONCLUSION.

We reverse the judgment and remand for a new trial.

We award costs to the Bakers.

BOYLE and McDEVITT, J., concur. BISTLINE, J., concurs in result.