Head injury from fall erases memory of why fell

The court held that the trial court properly entered a judgment in the defendant's favor following a jury trial in this negligence case. Plaintiff, an employee of a nonparty corporation, was working in its shoe department located in defendant's store when she fell from a ladder while changing the configuration of display shelving. Before falling, plaintiff was in the process of removing a bottom base up and over the top of an 84-inch counter while standing on the ladder. She explained that, to lift the base clear from the counter, "you do have to lift it, you know, quite a ways up over your head to get all of it off." The ladder plaintiff was using was owned by defendant, had wheels, handrails, and six steps, including a platform at the top. When the ladder was stepped on, it would stabilize on its legs. However, three of the legs were missing rubber feet. Due to her head injuries, plaintiff was unable to remember what caused her to fall. One eyewitness testified that she saw movement by the ladder and then plaintiff fall. However, she did not know what caused plaintiff to fall and did not know whether plaintiff was already in the process of losing her balance when she saw the ladder movement. Plaintiff sued defendant alleging that the ladder was in a dangerous condition, defendant knew it, and the ladder should not have been available for her use. Defendant filed a notice of non-party fault, naming plaintiff's employer as a possible contributor to plaintiff's damages for failing to provide her with adequate training and equipment. The trial court denied plaintiff's two motions to strike the notice. A four-day jury trial was conducted and concluded with the jury finding that defendant was not negligent. The first question on a special verdict form asking whether defendant was negligent was answered in the negative. Thus, the other questions whether her employer or plaintiff were negligent were not answered. Plaintiff argued that her motion to strike defendant's notice of non-party fault should have been granted because her employer was not a properly named "non-party." However, as defendant argued, this issue was moot. The fault of non-parties is relevant to the issue of damages. Since the jury decided that defendant was not negligent, "the issues of apportionment of fault and damages were never reached or decided." Plaintiff argued in her response brief that the issue was not moot because the trial was "permeated with Defendant's efforts to identify" her employer "as the real at-fault party" and if defendant had been "precluded from doing so, there is more than a reasonable probability that the jury would have reached a different result with respect to [defendant's] negligence." Plaintiff claimed that, in its opening and closing statements and "through numerous witnesses," defendant argued that it was not negligent and that the fault lay with plaintiff's employer. "First, defense counsel's opening statement and closing argument were not evidence and the jury was properly instructed that counsel's comments were not evidence." Second, plaintiff did not direct the court's attention either to defendant's "numerous witnesses" nor any witness testimony that allegedly identified her employer as the "real at-fault party." Further, even if defendant's notice of non-party fault was stricken, defendant would still be entitled to defend against plaintiff's negligence claim by arguing that her employer was the proximate cause of her damages - a mandatory element of her claim was not established. The court rejected plaintiff's argument and held that the issue whether defendant's notice of non-party fault should have been stricken was rendered moot by the jury's finding that defendant was not negligent. Affirmed.