Colo. SC rules for woman in $10M case against Wal-Mart

Jessica M. Karmasek Nov. 9, 2011, 12:31pm


DENVER (Legal Newsline) - The Colorado Supreme Court on Monday ruled that a commercial truck driver can collect nearly $10 million from Wal-Mart for her injuries following a fall in a Greeley store's receiving area.

The Court, in its 19-page decision, refused to reverse the jury's award and grant the grocery and retail giant a new trial.

Plaintiff Holly Averyt slipped in grease, which accumulated in the store's receiving area, while making a delivery to the Wal-Mart store in December 2007.

As a result of the fall, Averyt ruptured a disc in her spine and injured her shoulder and neck.

Because of her injuries, she can no longer work as a truck driver and is unable to perform many daily activities, including cooking, cleaning, carrying groceries and basic hygiene. She also has difficulty walking and going to the bathroom.

Averyt, in her lawsuit against Wal-Mart, alleges claims of negligence and premises liability.

A jury found in Averyt's favor and awarded her $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.

However, the trial court ultimately reduced the non-economic damages award to the statutory cap of $366,250.

Following the verdict, Wal-Mart moved for a new trial based on surprise, non-disclosure and unfair prejudice.

The trial court granted Wal-Mart's motion, holding that Averyt's attorney should have disclosed a document from the city of Greeley, regarding the grease spill, before using it to question the company's representative on the second day of trial.

The trial court also ruled that the jury award was not supported by the facts because the jury had been unfairly prejudiced by the late disclosure of the city's report.

The state's high court said the trial court abused its discretion in holding that the plaintiff's attorney violated discovery rules when he failed to disclose the Greeley document.

A party need not automatically disclose public documents that are equally available to all parties, Justice Nancy E. Rice wrote for the Court.

"Averyt and Wal-Mart were on equal footing with regard to the ability to obtain the report," Rice wrote.

The Court also determined that the jury's verdict was supported by the evidence and was not the result of unfair prejudice.

"Because we hold that Averyt had no duty to disclose the report, her alleged late disclosure could not have prejudiced the jury. To the contrary, any prejudice that the jury could have harbored was a result of Wal-Mart's strategy of initially refusing to admit the existence of, or provide any evidence of, the grease spill and then eventually admitting to the spill by introducing the report," Rice wrote.

"Therefore, any such error was invited by Wal-Mart's trial strategy and is not a valid justification for altering a jury's decision."

From Legal Newsline: Reach Jessica Karmasek by email at

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