Shoup v. Wal-Mart Stores

En Banc Argued and submitted November 6, 2001. Plaintiff brought this negligence action against Wal-Mart, Inc. (defendant), after one of defendant's employees injured plaintiff by bumping into her and knocking her to the floor. The jury considered three specifications of negligence and returned a general verdict in plaintiff's favor. The Court of Appeals reversed and remanded the case for a new trial, holding that one of plaintiff's specifications did not state a claim for negligence under Oregon law and that defendant, therefore, was entitled to a new trial under the ""we can't tell"" rule that this court announced in Whinston v. Kaiser Foundation Hospital, 309 Or 350, 788 P2d 428 (1990). Shoup v. Wal-Mart Stores, Inc., 171 Or App 357, 359, 15 P3d 588 (2000). We allowed plaintiff's petition for review. As explained below, we conclude that allowing defendant a new trial under the ""we can't tell"" rule is incompatible with ORS 19.415(2), which provides that ""[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party."" Accordingly, we reverse in part the decision of the Court of Appeals.