Opinion
1 Robert Proctor appeals from the unfavorable result in his negligence suit against Costco Wholesale Corporation. Specifically, Proctor asserts that the trial court improperly granted a partial directed verdict in favor of Costco on two of his allegations of negligence and abused its discretion when it declined to reinstate one of the two allegations after Costco elicited testimony on the issue during the presentation of its defense. Proctor also challenges the trial court's denial of his own motion for directed verdict. Finally, Proctor claims that there was insufficient evidence to support the jury's verdict in favor of Costco. We affirm.
BACKGROUND
12 On May 8, 2008, Proctor arrived to shop at a Costco store in Murray, Utah, approximately fifteen . minutes before it opened for the day. While Proctor was waiting outside the store, Jerry! Holtkamp, a Costco member service supervisor and the store's safety coordinator, came into the parking lot pushing a wheel base, on which twelve orange traffic cones were stacked. Holtkamp chatted with Proctor while she set out three of the cones. As she pushed the wheel base with the remaining cones, it caught on a crack in the sidewalk, spilling the stack of cones to the ground. Holtkamp asked Proctor to move the stack of cones back onto the wheel base because "(hle looked healthy enough, strong enough" to lift them. Holtkamp was unable to lift the stack herself because she had a physician-imposed twenty-pound lifting restriction as a result of an elbow injury as well as a weak arm and shoulder. The cones were base-weighted and weighed twelve to twenty pounds each.
T3 The parties disagree about what happened next. Proctor testified that because he believed the cones to be lightweight plas *567 tic, he bent at the waist, grabbed the cones by sticking two fingers into an opening in the cone at the top of the stack, and tried to yank the stack upright. As he yanked, Proctor felt a tear in his shoulder, causing him to drop the cones. At that point, according to Proctor, Holtkamp issued a warning about how heavy the cones were and urged Proctor to use care. Holtkamp, on the other hand, testified that Proctor "picked up the black bases with his right arm and [used] his left arm ... at the tip" per her direction to "lift the black part up on to the [wheel] base, but be careful because they are heavy." Prior to actually lifting the cones, however, Proctor dropped the cones and said, "Jerryl, I think I hurt my shoulder." The parties agree that Holtkamp then removed a couple of cones from the stack and asked Proctor to lift them again. Proctor refused because. he had injured his shoulder.
4 Proctor then entered Costco where he completed his shopping and reported his inJury to management. After leaving Costco, Proctor immediately saw a doctor, who referred him to physical therapy. When the therapy did not improve his shoulder, Proctor scheduled an appointment with an orthopedic surgeon. Proctor underwent surgery in late June 2008 to repair a severed biceps tendon and a torn labrum.
T5 Proctor sued Costco, alleging a single cause of action for negligence. The case proceeded to trial where the parties stipulated to a jury instruction outlining Proctor's allegations 2 of negligence against Costeo:
(1) Placing its employee, Jerryl Holt{klamp in a position she could not perform on her own;
(2) Spilling the stack of cones over;
(8) Asking a non-employee to help pefiorm a task for Costeo;
(4) Failing to warn Mr. Proctor that the cones were weighted and heavy, until after he lifted them; and
(5) Failing to instruct Mr. Proctor on how to lift the stack of cones.
Following Proctor's case-in-chief, Costco moved for directed verdict on the first three allegations. The court granted Costco's request as to the first two allegations but determined that there was prima facie evidence of the remaining allegations of negligence. Costco then put on its defense, which included calling Holtkamp as a witness. After Holtkamp testified that she was using care in pushing the cones, Proctor moved to "restore [the] deleted allegation ... asserting that Ms. Holtkamp was negligent in spilling the stack of cones" on the basis that Costco "opened the door ... on Ms. Holtkamp's conduct in spilling these cones." The trial court denied that request, explaining, "There's nothing in Ms. Holtkamp's testimony that would modify this Court's ruling." After Costco completed the presentation of its case, Proctor moved for directed verdict in his favor. The trial court denied Proctor's motion, and the jury concluded that Costco had not been negligent with respect to the remaining allegations. Proctor appeals, challenging the grant of partial directed verdict in favor of Costco, the denial of his own motion for directed verdict, and the sufficiency of the evidence to support the Jury's verdict.
ISSUES AND STANDARDS OF REVIEW
Y96 Proctor challenges the trial court's rulings on both parties' motions for directed verdict. Appellate courts review the grant or denial of a motion for directed verdict for correctness. Gilbert Dev. Corp. v. Wardley Corp.,
17 Proctor also contends that there is insufficient evidence to support the jury's verdict in favor of Costeo.
In reviewing a jury verdict, we view the evidence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evidence which sustain its findings and judgment. Accordingly, we will upset a jury verdict only upon a showing that the evidence so clearly preponderates in favor of the appellant that reasonable people would not differ on the outcome of the case.
Billings v. Union Bankers Ins. Co.,
ANALYSIS
I. Grant of Partial Directed Verdict to Costco
T8 Proctor contends that the trial court improperly granted Costeo's motion for partial directed verdict on the first two allegations. In particular, Proctor claims that directing the verdict was error because prior to trial, Costco had agreed to allow him to offer additional evidence on these allegations during Costco's defense and because Costeo had withdrawn its motion with respect to the first allegation prior to the court's ruling. Proctor points to the following representations during argument on Costco's partial directed verdict motion as evidence that the trial court's ruling was error:
[Proctor's Attorney]: [Wle're going to prove a lot of the negligence in this case through the testimony of Costeo's employee[s] which [Costco's attorney] and I discussed and she said she was bringing them to trial. I didn't need to call them in my case in chief, that I would be able to examine them when she called them....
... And [negligence is] going to be well developed as I examine those witnesses who will be called this afternoon.
[[Image here]]
[Costeo's Attorney]: Now, on the one with Ms. Holtkamp, placing her in a position [she could not perform (allegation one) ], I could understand where he may want to talk with the supervisors, that's fine....
Proctor contends that rather than granting Costeo's request for partial directed verdict, the court should instead have reserved a ruling on the motion until after he had eross-examined Costeo's witnesses. See Utah R. Civ. P. 50(a) (explaining that directed verdiet is appropriate only after the close of the non-moving party's evidence).
19 Proctor is correct that, in light of the parties' stipulation and Costeo's withdrawal of its motion regarding allegation one, the trial court should have waited to rule on Costeo's motion for partial directed verdict until after Proctor finished presenting his case, including anticipated cross-examination of certain of Costco's own witnesses.
3
Proctor has not demonstrated, however, that this error prejudiced him, and a harmless error does not require reversalA
4
See Covey v. Covey,
[11,121 $10 Proximate ecause is "[al cause that directly produces an event and without which the event would not have occurred." Black's Law Dictionary 250 (Oth ed.2009). To prove proximate cause, however, it is not enough to show that a negligent act brought about the injury; rather, a plaintiff must demonstrate that the act was the "efficient, producing cause" of the injury, CSX Transp., Inc. v. McBride, - U.S. --,
111 As a natural corollary, an "actor's negligent conduct is not a [proximate cause] in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent." Holmstrom,
12 These principles were applied in Deg, a case where due to driver negligence, the defendant's vehicle slid off the road into a median on a snowy section of an interstate highway, setting into motion a sequence of events that resulted in the plaintiff's injury. Id. T2. After the defendant landed in the median, he contacted the Utah Highway Patrol, which sent a tow truck. Id. The tow truck pulled the defendant's car out of the median and back onto the highway, partially blocking the left lane. Id. The plaintiff, traveling along the same highway, lost control of his vehicle and slid into the parked tow truck, resulting in the plaintiff's injury. Id. We affirmed the trial court's summary judgment determination that the defendant's negligence was not a proximate cause of the plaintiff's injuries. Id. 16. The defendant's negligent act-"driving his vehicle in a way that caused it to slide into the median"-did not itself cause the plaintiff any injury. Id. Nor was the vehicle, once it was in the median, any threat to the plaintiff; "indeed, had [the defendant]'s car remained in the median, presumably the collision would never have occurred." Id. And the " 'specific mechanism of the harm'" that happened to the plaintiff-"the risk of injury to another driver from a negligent tow truck driver" if the defendant's negligent driving resulted in his needing to be towed -was not foreseeable at the time that the defendant acted negligently. Id. ¶¶ 5, 7 (quoting Normandeaqu,
113 As in Dee, Costeo's assignment of the task of setting out the cones to Holt-kamp and Holtkamp's conduct in performing that task produced a sequence of events that led to Holtkamp requesting assistance from Proctor and ultimately to Proctor's injury. However, regardless of how the stack of cones came to be on the ground-through either the negligence of Holtkamp or Costco or otherwise-the spilling of the cones was only a type of "causation in fact," which is not the equivalent of "legal causation." The type of injury to be expected from any such negligence on Holtkamp's or Costeo's part would be from the stack of cones hitting Proctor as they fell over or perhaps from Proctor instinctively rushing over to steady the cones as they began to fall. But the falling cones did not injure Proctor nor did he try to steady them, and once the cones were on the ground, they posed no threat of injury to Proctor until Holtkamp asked him to help her by lifting them back onto the wheel base. "[IIndeed, had [the cones] remained [on the pavement], presumably the [injury] would never have occurred." See Dee,
T 14 Thus, no matter how the cones ended up on the ground, the act of their falling and the cireumstances leading up to their falling, did not legally cause Proctor's shoulder injury. Rather, the potential proximate causes of Proctor's injury occurred only after the cones were on the ground and involved Proctor's allegations that Holtkamp requested that he help her by picking up the cones and then failed to provide any warning about their weight or any instruction on proper lifting technique. See Holmstrom,
115 Furthermore, we are not persuaded by Proctor's argument that exclusion of evidence relating to the first two allegations was prejudicial because had the jury heard all of the evidence related to his negligence claim, it would have "see[n] the full picture of negligence[ ] and likely would have [come to] a different verdict." A.plaintiff is not entitled to present evidence that does not pertain to an issue before the jury. Cf. Hahnel v. Duchesne Land, LC,
116 But even if the circumstances leading up to Holtkamp's spilling of the cones were relevant as background in order to paint a full picture of how the events unfolded, Proctor was able to present the jury with much of the pertinent evidence despite the partial directed verdict. For example, Proctor inquired, without objection, about the nature of Holtkamp's elbow injury and about her ability to perform the task of putting out the traffic cones given her doctor's orders restricting her lifting to twenty pounds. He also questioned Holtkamp at length about Costeo's knowledge of and attempts to accommodate her doctor-imposed lifting restriction, including moving her to the member service supervisor position that she held at the time of Proctor's injury. This questioning included a concession from Holtkamp that the job description of the member service supervisor position stated that the supervisor would occasionally have to lift up to fifty pounds, a weight beyond her lifting restrictions. Proctor also asked Holtkamp, again without objection from Costco, about her conduct while pushing the wheel base from which the cones spilled. Proctor had earlier testified that Holtkamp had been "having a conversation" with him, "being friendly" and "possibly" flirting, while pushing the cones on the wheel base. In an attempt to portray Holtkamp as distracted while pushing the cones and not being careful, as she had earlier claimed to have been, Proctor's counsel asked Holtkamp whether she was "talking to [him] the entire time that [she was] wheeling the cones." Holtkamp responded that she "was talking to him as he approached and then just that part where we were trying to tip [the cones] back up" onto the wheel base. Although this answer could suggest that there was some separation between Holtkamp and Proctor's initial conversation and the spilling of the cones, both Proctor and Holtkamp had testified that the cones spilled shortly after Holtkamp pushed the wheel base over toward Proctor and that *572 the conversation and the spilling were contemporaneous. Indeed, Holtkamp had earlier said, >
That morning I took the cones out, I pushed them through the [door] vestibule and I had them out on to the sidewalk.... I got out there and he started-Mr. Proctor walked-was coming in from the parking lot and he was like how are you? And I was like oh, and then I put out a few [cones] and I was just talking with him. He was very friendly.
[[Image here]]
I'm pushing them.... And as I'm just pushing, and I am talking, ... the wheel on the base stuck into the crack in the sidewalk and ... it pushed the cones over.
(Emphasis added.) This testimony supports an inference that Holtkamp's response meant that she was talking with Proctor while she was pushing the wheel base carrying the cones. Thus, despite the grant of partial directed verdict, Proctor was able to present the jury with a reasonably full picture of the cireumstances that resulted in his injury.
17 In summary, the trial court's grant of partial directed verdict in Costeo's favor on the first two allegations was error due to the parties' agreement about the presentation of evidence and Costco's partial withdrawal of its motion. That error, however, was harmless because neither allegation, even if proven, could constitute a legal cause of Proctor's injury. Additionally, no other harm resulted from the grant of partial directed verdict because Proctor was still able to put on evidence that provided the jury with a relatively complete picture of the events that led up to his injury to the extent that the totality of the circumstances was pertinent to his surviving claims. We therefore decline to reverse the grant of directed verdict to Costco on allegations one and two.
IIL Denial of Proctor's Motion for Directed Verdict
{18 Proctor next contends that the trial court ought to have granted his own motion for directed verdict. We uphold the trial court's decision because when viewing the evidence in favor of Costco, as we must, we conclude that "reasonable minds could disagree with the ground [Proctor] asserted for directing a verdict." See Florez v. Schindler Elevator Corp.,
A. Holtkamp's Request that Proctor Assist Her in Picking Up the Cones
119 Proctor argues that Costco admitted at trial that Holtkamp was negligent in asking Proctor to help her pick up the cones and that this admission required that the trial court direct a verdict against Costco on liability. The testimony which Proctor contends amounts to an admission of negligence, however, establishes only that Costco believed that asking a non-employee to assist an employee in carrying out her duties was contrary to its tenets of good customer service. For example, the store manager testified that "Holtkamp should not have asked a non-employee to lift the cones" because "Tilt's just not giving good member service" to "ask members for help" and because "the customers can be injured." Proctor also elicited the following response from the assistant store manager about Holt-kamp's knowledge of this policy:
Q: Didn't you, in fact, tell [Holtkamp] that she should not have asked a non-employee to lift something for her?
A: I'm sure I did.
Q: Okay. And Ms. Holtkamp acknowledged to you, did she not, that she was not supposed to ask customers for help?
A: Yes.
120 Costco's acknowledgment that Holtkamp acted contrary to Costeo's member service rules, however, does not necessarily establish a breach of duty, a necessary element of a successful negligence claim. See generally Webb v. University of Utah,
B. Holtkamp's Failure To Warn or To Instruct
T21 Nor has Proctor convinced us that he was entitled to a directed verdict of negligence on his allegations that Holtkamp failed to warn him of the weight of the cones or to instruct him on how to lift the cones. In a footnote to his brief, Proctor asserts that Hale v. Beckstead,
T22 More significantly, even assuming for purposes of appeal that Proctor has demonstrated a duty on Costeo's part to warn and to instruct due to its superior knowledge, there are conflicting facts as to whether Holtkamp actually issued a warning about the weight of the cones and instructed Proctor on how to properly lift them prior to his attempt to pick up the cones. Proctor testified that, believing the cones to be lightweight, he yanked up on them, causing a tear in his shoulder, and that it was his abrupt acknowledgment of the injury that triggered Holtkamp to tell him that the cones were heavier than they appeared. According to Holtkamp, however, she not only warned Proctor prior to his lifting the cones to be careful because they were heavy but also instructed him on how to lift the cones. This issue was thus properly submitted to the jury. See Mahmood v. Ross,
123 Because there were issues of fact for the jury as to whether Costco breached its duty to "exercise due care and prudence for the safety" of customers, see Dwiggins,
III. Sufficiency of the Evidence
T 24 Finally, Proctor contends that the evidence was insufficient to support the jury's verdiet that Costco was not negligent. "In reviewing a jury verdict, we view the evi
*574
dence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evidence which sustain its findings and judgment." Billings v. Union Bankers Ins. Co.,
125 In an attempt to carry his burden, Proctor asserts that Costco admitted that Holtkamp was aware that it was not good customer service for Holtkamp to ask a non-employee to assist her in picking up the cones and that Costco had superior knowledge about the weight of the cones and the proper technique for lifting them. This argument essentially repeats Proctor's argument for why directed verdict in his favor was appropriate. However, as we have discussed, supro 120, this evidence does not necessarily establish a breach of the duty Costco owed Proctor to "exercise due care and prudence for the safety of business invitees," see Dwiggins v. Morgan Jewelers,
126 It is the role of the jury to resolve conflicting factual testimony, and in reviewing the jury's verdict, we must assume that the jury believed Holtkamp. See Nizdorf v. Hicken,
CONCLUSION
{27 We affirm. Although the trial court erroneously directed a verdict in favor of Costco on the first two allegations of negligence, that error was harmless. The court properly denied directed verdict to Proctor on the remaining allegations of negligence because reasonable minds could disagree about the result. Finally, there was sufficient evidence to support the jury verdict.
Notes
. The parties treat Proctor's allegations of negligence as distinct factual components of a single claim of negligence. We will also use the term "allegations" for convenience and consistency without attributing any legal significance to the term.
. Costco does not deny that it stipulated before trial that Proctor could put on a portion of his case-in-chief through cross-examination of certain Costco witnesses during the presentation of Costco's defense case. And Costco has provided no satisfactory explanation for why it apparently violated that agreement by moving for partial directed verdict based on the insufficiency of the evidence after Proctor had put on only his own witnesses. That we ultimately rule against Proctor for other reasons should not be taken as an endorsement of Costco's conduct.
. Proctor also claims that the court erred when it later declined "to restore th{e] deleted allegation ... asserting that Ms. Holtkamp was negligent in spilling the stack of cones over." For the same reasons that we hold that the error in granting the partial directed verdict was harmless, any error in the court's refusal to reinstate the allegation was harmless.
. The parties did not address proximate cause in their briefing, but the issue was discussed at oral argument. Appellate courts have the authority to affirm the district court on any basis apparent on the record. See Bailey v. Bayles,
Although proximate cause is generally a matter for the jury, it becomes a question of a law when ''the facts are undisputed and but one reasonable conclusion can be drawn therefrom." Dee v. Johnson,