STATE OF MINNESOTA
IN COURT OF APPEALS
Eunice Taney, et al.,
Independent School District No. 624,
Filed January 13, 2004
Ramsey County District Court
File No. C2-01-186
Scott Ballou, Patrick M. Biren, Brownson & Ballou, P.L.L.P., 225 South Sixth Street, Suite 4800, Minneapolis, MN 55402 (for appellant)
Kermit N. Fruechte, Richard L. Carlson, Hunegs, Stone, LeNeave, Kvas & Thorton, P.A., 1650 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondents)
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.
1. In a negligence action, the substantial remodeling of real property in the direct vicinity of an accident constitutes an improvement to that property and therefore the statute of repose, Minn. Stat. § 541.051, runs from the date of that remodeling rather than the date of original construction of the real property.
2. In a negligence action, so long as the jury instructions are a fair and correct statement of the law, the district court does not err when it refuses to issue an instruction that the jury may not consider violations of the Uniform Building Code in determining negligence.
G. BARRY ANDERSON, Judge
Respondent, Eunice Taney, brought a personal injury action against appellant, Independent School District No. 624 (ISD). After a two-day jury trial, ISD moved for a directed verdict on the issue of negligence. The district court denied the motion. The jury returned a special verdict finding both parties causally negligent; the jury apportioned fault for the accident at 32% for Taney and 68% for ISD.
After the district court ordered judgment, ISD brought post-trial motions seeking judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. ISD also asserted that Taney was barred from using a negligence theory because the statute of limitations pertaining to improvements to real property, Minn. Stat. § 541.051 subd. 1 (2002), had expired.
The district court denied ISD’s motions and this appeal follows.
On December 15, 1998, Taney and her daughter-in-law attended Taney’s granddaughter’s choir program at Sunrise Park Middle School (Sunrise). ISD owns and operates Sunrise. Sunrise was built in 1958. In 1992, in order to comply with the building code so that ISD could use Sunrise as a middle school, ISD remodeled the building. On November 5, 1993, the city of White Bear Lake’s Department of Building Inspection issued a certificate of occupancy that stated, “[A]t the time of issuance [Sunrise] was in compliance with the various ordinances of the city regulating building construction or use.”
The evening of December 15, 1998, was Taney’s first visit to Sunrise. On that night, ISD blocked off two of Sunrise’s three hallways; the third hallway led directly to the gymnasium where the concert was held. But there were neither signs nor guides directing visitors to the choir program. Taney and her daughter-in-law searched Sunrise for several minutes without finding the concert.
Taney and her daughter-in-law then came to a set of glass double-doors that led into an interior courtyard. Through the glass doors, Taney could see lights and people in the hallway on the other side of the courtyard, so Taney assumed that the concert was on the other side of the courtyard.
Taney pushed open one of the doors to the courtyard and stepped outside. Taney testified that when she opened the door and stepped outside the lights and the people in the hallway across the courtyard distracted her. At the threshold of the door was a nine-inch drop-off; Taney stepped through the door, fell as a result of the drop-off, and broke her hip when she landed on the ground. Taney’s hip injury required surgery.
The weather on the night of Taney’s fall was temperate; there was no snow on the ground. The courtyard is two hundred feet long and eighty feet wide; it does not have a sidewalk or artificial lighting, but on the night of the accident, some light from inside the building illuminated the yard.
At trial, Taney’s expert witness, an architect, testified that (1) the nine-inch drop-off outside the doors violated the Uniform Building Code; (2) the sudden drop-off was a safety hazard because people do not expect such a steep drop-off outside doorways; (3) the sudden drop-off should have provided warning of the hazard to ISD, therefore, ISD should have had warning signs at the doors; (4) the door Taney opened was equipped with a “panic bar,” which is hardware that is required on all exit doors of Sunrise; (5) the doors cannot be locked; and, (6) the “panic bar” doors to the courtyard were installed in a remodeling project in 1992.
ISD admits that during the 1992 remodeling project, it replaced the old interior doors at Sunrise with the “panic bar” door that Taney opened. But ISD contends that remodeling projects at the school have never changed the elevation of the step where Taney fell. Further, ISD argues that between the remodeling project in 1992, and Taney’s accident in 1998, no one had been injured while stepping into the courtyard, and ISD had not received any complaints about the drop-off into the courtyard.
At the close of evidence, ISD moved for a directed verdict on the issue of negligence based on a violation of the Uniform Building Code; the district court denied the motion. Thereafter, ISD requested a jury instruction that the jury could not consider evidence of a building code violation as evidence of negligence; the district court denied this request. The district court did, however, instruct Taney’s counsel that, during closing arguments, he could not argue that a violation of the Uniform Building Code was evidence of negligence. The district court did allow Taney’s counsel to argue that Taney’s expert witness based his determination that ISD was negligent on his training and forty years of experience.
I. Was the evidence sufficient to support the jury’s finding of negligence?
II. Were Taney’s claims against ISD barred by Minn. Stat. § 541.051 subd. 1, the statute of repose pertaining to improvements to real property?
III. Did the district court abuse its discretion when it refused to issue an instruction that the jury could not consider violations of the Uniform Building Code in determining whether ISD was negligent?
District courts are allowed considerable latitude in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). This court will not reverse a district court’s decision unless the instructions constituted an abuse of discretion. See id. (concluding that appellant failed to demonstrate that the district court’s instructions were an abuse of discretion). In fact, where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). Further, even if this court finds error in the district court’s instructions, we will not reverse unless the error is prejudicial. Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 885 (Minn. 1986).
Here, rather than affirmatively challenging an erroneous instruction, ISD challenges the district court’s refusal to give an instruction that ISD requested. ISD contends that Bills v. Willow I Apartments entitled ISD to an instruction that the jury could not consider testimonial evidence that ISD violated the Uniform Building Code as evidence of ISD’s negligence. See 547 N.W.2d 693 (Minn. 1996). But ISD’s reliance on Bills is misplaced; Bills does not address the issue of jury instructions. Instead, Bills discusses a landlord’s alleged violations of the Uniform Building Code and whether such violations were evidence of negligence per se. Id. at 694. Bills concludes that a plaintiff may not establish a defendant’s negligence per se if the plaintiff fails to offer evidence that (1) defendant has notice of the building code violation; (2) defendant has failed to take reasonable steps to remedy that violation of the building code; (3) the legislature designed that building code to prevent the type of injury the plaintiff suffered; and, (4) the violation in question is the proximate cause of the accident. Id. at 695.
Here, the district court did not abuse its discretion by refusing to instruct the jury that ISD’s violation of the Uniform Building Code did not constitute negligence. Because the district court’s instructions fairly and correctly stated the duties of landowners to entrants and the law of negligence in Minnesota, we affirm the district court’s decision, and deny ISD’s request for a new trial. See Alevizos, 452 N.W.2d at 501.
Because the record supports the jury’s finding of negligence, we affirm the district court’s denial of ISD’s motion for JNOV. Further, because we hold that the substantial remodeling here is an improvement to real property, we affirm the district court’s determination that Minn. Stat. § 541.051 subd. 1, the statute of repose governing Taney’s action for personal injury, had not expired at the time of her fall. Finally, because the district court’s instructions fairly and correctly stated the law, we deny ISD’s motion for a new trial.
 Although the parties’ briefs refer to the issue of the ‘statute of limitations,’ in this case, the potential limitation on the action is more properly referred to as a ‘statute of repose.’ A statute of limitation is distinguishable from a statute of repose because
[w]hile statutes of limitation are sometimes called “statutes of repose,” the former bars right of action unless it is filed within a specified period of time after [the] injury occurs, while “statute of repose” terminates any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury.
Black’s Law Dictionary 927 (6th ed. 1990); see also Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn. 1988) (distinguishing statutes of limitation from statutes of repose).
 Appellant argues that the Minnesota Supreme Court set forth the test for an “obvious” condition in Munoz v. Applebaum’s Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972). In Munoz, appellant slipped in a pool of water in respondent’s store and was injured. Id.at 921. The pool of water was 20 feet square and a quarter of an inch deep. Id. at 921-22. Further, all the witnesses, except appellant, conceded that the pool was in plain view. Id. The Minnesota Supreme Court held, in light of these facts, that “the test is not whether the injured party actually saw the danger, but whether it was in fact visible.” Id. at 922. Munoz is easily distinguishable from the present case because (1) the dangerous condition that Taney encountered was far less obvious than the dangerous condition in Munoz; and (2) Munoz lacked the element of the “distracting circumstance” found in this case.
 At oral argument before this court, respondent’s attorney argued that, under Minnesota law, the district court should have permitted him to argue to the jury that evidence of a building code violation could be considered in the negligence analysis. But because respondent did not file a notice of review on the issue, we decline to reach the merits of that argument here. See Minn. R. Civ. App. R. 106 (stating respondent may obtain review of district court ruling by filing notice of review); Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793 (Minn. 1986) (affirming this court’s refusal to address issue raised by respondent where respondent failed to file a notice of review).