This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Kristen Nagel, et al.,






a Minnesota general partnership,



Filed June 20, 2000


Harten, Judge


Hennepin County District Court

File No. PI9819846


William D. Harper, Paul D. Peterson, William D. Harper, Chrtd., Suite 370, 6043 Hudson Road, Woodbury, MN 55125 (for respondents)


Burke J. Ellingson, Brendel & Zinn, Ltd., 46 East Fourth Street, Suite 804, St. Paul, MN 55101 (for appellant)


            Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            In this personal injury action, appellant challenges the denial of its alternative motions for judgment notwithstanding the verdict (JNOV) or a new trial, and the award of prejudgment interest and costs.  We affirm. 


Respondent Kristin Nagel took her three children to the Camp Snoopy amusement park in the Mall of America.  Appellant Minntertainment is the operator of Camp Snoopy.  While Nagel’s two older children were on the “Truckin” ride, Nagel waited with her youngest child on the ride’s exit walkway.  A woman with a stroller attempted to walk past Nagel on the crowded walkway.  The woman said, “Excuse me,” and Nagel stepped backwards a couple of inches.  Nagel testified as to what happened next:

[T]he next thing I know, I was lying on my back with my arm behind me. 


* * * *


When I landed there, then I started to look around, and, of course, immediately trying to think what happened.  And that is when I noticed the bricks, and the railing, and all I could think is I must have taken a step back, my foot must have been caught in the motion, and then the railing must have must have just hit my knee and flung me backwards. 


Nagel had fractured her right arm, which required the insertion of metal rods. 

Nagel sued Minntertainment for her personal injury.  A jury found Minntertainment 100% at fault and awarded Nagel $114,570 in damages.  The district court awarded Nagel $4,070 in pre-verdict interest and $7,900 in costs and disbursements.  The court denied Minntertainment’s motion for judgment notwithstanding the verdict (JNOV) or a new trial.  This appeal followed. 



1.         Alternative Motion for JNOV or New Trial


Where JNOV has been denied by the trial court, on appellate review the trial court must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.  Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside.  The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.


Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (citations and quotations omitted).  As an alternative to JNOV, a party may obtain a new trial where the verdict is not justified by the evidence.  Minn. R. Civ. P. 59.01(g).  The decision to grant a new trial lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

            Minntertainment challenges the district court’s denial of its motion for JNOV or a new trial, arguing that the jury’s finding of negligence is unsupported by the evidence.  We disagree.  The record includes: (1) expert testimony from an industrial engineer that the potential for injury was foreseeable, and should have been anticipated, and that a hazardous condition existed on the walkway, (2) testimony from Nagel that the bricks and decorative fence caused her fall, (3) photographs showing higher safety fencing in the other areas surrounding the ride, and (4) testimony from an orthopedic surgeon that Nagel’s injury was the result of her fall. 

            Minntertainment argues that it did not have a duty to remedy the hazard because it was “open and obvious” and that Nagel’s injury was caused by her own inattention.  Possessors of land are not liable for harm caused by an obvious danger “unless the landowner should anticipate the harm despite its obvious nature.”  Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn. 1997).  Here, Nagel’s industrial engineer, Richard Gauger, provided expert testimony that Minntertainment should have anticipated the harm because, in his professional opinion, the walkway was unsafe.

            Minntertainment contends that Bisher v. Homart Dev. Co., 328 N.W.2d 731 (Minn. 1983), mandates JNOV.  But Bisher is factually distinguishable; Bisher was walking down an open mall corridor when he tripped over a brick planter.  Id. at 732. Here, Nagel was standing in a crowded walkway, moved “inches” backward to make way for another woman with a stroller, and tripped over the bricks and a decorative fence.

Minntertainment argues that Gauger lacked the requisite qualifications to render an expert opinion.  Gauger testified that (1) he had a 5-year degree in industrial engineering from the University of Minnesota including a course in “safety engineering,” (2) he was certified by the National Counsel of Examiners for engineering, (3) he was a licensed industrial engineer in Minnesota, and (4) he had been the resident engineer for the construction of the Maplewood Mall and the Burnsville Center.  We agree with the district court that Gauger was qualified to testify as an expert.    

            Minntertainment argues that Gauger’s opinions lacked foundation.  We disagree.  The district court is given wide latitude in determining whether there is sufficient foundation on which an expert may state an opinion and that determination will not be reversed absent an abuse of discretion.  Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990).  Gauger testified that he had reviewed the blueprints of Camp Snoopy and that the exit walkway was unsafe because safety fencing should have extended all along the walkway.  Moreover, Gauger testified that the hazard was prominent and that some type of construction should have allowed a safe exit from the ride.

            Finally, Minntertainment argues that Nagel failed to offer competent evidence of causation.  But Nagel testified that her foot must have caught the brick and that the railing then hit her knee and caused her to fall backwards.  Moreover, given where Nagel was standing, how far she moved, the manner of her fall, the location of the curb and fences and where she landed, a jury could reasonably infer causation.  See Lindgren v. Voge, 260 Minn. 262, 269, 109 N.W.2d 754, 760 (1966) (causation is a fact issue to be determined by the jury, which is free to make reasonable inferences).

In sum, appellant has not shown that the evidence as a whole is “practically conclusive” against the verdict or that the district court has abused its discretion.

2.         Prejudgment Interest

            Minntertainment argues that the district court erred in calculating prejudgment interest.  Minn. Stat. § 549.09, subd. 1 (1998), provides:

The prevailing party shall receive interest on any judgment or award from the time of commencement of the action * * * until the time of verdict, * * * only if the amount of its offer is closer to the judgment or award than the amount of the opposing party’s offer. 


            Here, the parties stipulated that on August 31, 1999, Nagel offered to settle the case for $39,000 or, alternatively, to participate in binding arbitration with a minimum of $10,000 and a maximum of $100,000.  Minntertainment rejected both offers and submitted an offer of judgment of $30,000.  Nagel’s $39,000 settlement offer was closer to the $114,570 judgment than was Minntertainment’s $30,000 settlement offer.  We conclude that there was no error in the prejudgment interest award.  

3.         Costs and Disbursements

            We review a district court’s award of costs and disbursements under an abuse of discretion standard.  See Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991).  Minntertainment raises four challenges to the award of costs and disbursements.

First, Minntertainment contends that a $200 reimbursement for statutory costs and filing fees was duplicative.   This assertion, however, is not supported by authority and is therefore waived.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on mere assertion not supported by authority is waived).  Moreover, statutory costs and filing fees are not synonymous, as Minntertainment implies.  See, e.g., Tchida v. Police Officers’ Fed’n, 375 N.W.2d 856, 860 (Minn. App. 1985) (listing statutory costs and filing fees as two distinct items), review denied (Minn. Dec. 30, 1985).

            Second, Minntertainment argues that Nagel could have saved $80 by serving by mail instead of personally serving the summons, complaint, and a response to one of Minntertainment’s motions for summary judgment.  Again, this assertion is unsupported by authority and therefore is waived.  See Schoepke, 290 Minn. at 519-20, 187 N.W.2d at 135.  Moreover, Minn. Stat. § 549.04 (1998) provides that fees for service of process are recoverable; it does not require service by mail. 

            Third, Minntertainment contends that Minn. Stat. § 357.32 (1998) precludes Nagel from recovering the costs of obtaining depositions not used at trial.  Apparently Minntertainment misreads the statute, which simply provides that fees paid for certified copies of depositions shall be allowed in the taxation of costs.  And the decision to allow the costs of depositions as disbursements is within the district court’s discretion.  Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984).  

            Finally, Minntertainment argues that Minn. R. Gen. Pract. 127 limits Nagel’s expert witness fees for Gauger and respondents’ medical expert.  Nevertheless,

[r]ule 127 is a limitation on the amount which the court administrator may tax, and the rule expressly provides that the limitation is “subject to increase or decrease by a judge.”  Moreover, Minn. Stat. § 357.25 (1992) permits a judge to allow expert fees “as may be just and reasonable.”  


Quade & Sons Refrigeration, Inc. v. Minnesota Mining & Mfg. Co., 510 N.W.2d 256, 260 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).  The district court did not abuse its discretion in determining witness fees.