The Oregon Supreme Court ruled that Ruth McCollum may not receive a new trial, because the trial court accidentally missed a strict time deadline. The lawsuit involved a slip and fall at the Sandy Boulevard KMart store in Portland, Oregon. Ruth fell because of a slippery foreign substance on the floor. The jury ruled against her, but Ms. McCollum's lawyer asked for a new trial based on the fact that the jury never got to see an internal KMart report about another accident in about the same location.
A key fact in any slip and fall case is whether the store should have known that the floor was dangerous. If there were evidence of a prior fall in the same location, that evidence could have swayed the jury in favor of Ms. McCollum. However, Ms. McCollum never had the chance to present the prior incident report to the jury. The trial judge agreed that mistakes were made, and Ms. McCollum should have the chance to retry her case.
The rule controlling a motion for a new trial is ORCP 64. It requires that the trial judge "determine" the motion within 55 days. If the judge does not "hear and determine" the motion by day 55, then the law considers the motion denied. After all, we all need to get on with our lives.
On Day 54, a court clerk officially entered into the record the Judge Baldwin's letter enclosing the "Order Allowing New Trial." However, the clerk did not enter the actual order, just the letter. The clerk recognized the issue, and entered the actual order on Day 59.
The Oregon Supreme Court said, "Sorry." Even though the judge had "determined" that Ms. McCollum should have a new trial before 55 days, "determined" does not have the dictionary meaning in this situation. Instead, the court said, "determines" means an "effective order," and an "effective order" is "effective" when it is entered in the record. The court found that the order was entered in the record on day 59, so Ms. McCollum did not get her chance for a new trial, and KMart succeeded in keeping evidence away from the jury.
Lessons from the above:
1. Get the stores to disgorge their accident reports early in the case.
2. Push the trial judge and clerk to meet the 55-day deadline.
The lawyers for Ms. McCullom worked extremely hard for her for many years. This result must be terribly disappointing for Ruth McCullom and her attorneys.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
