This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Fe' E. Clardy,


PCL Construction Services, Inc.,
a foreign corporation,


Filed March 6, 2001


Hanson, Judge


Hennepin County District Court

File No. PI-98-016935


Harry A. Sieben, Jr., Sieben, Grose, Von Holtum & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402;


Wilbur W. Fluegel, Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN 55415 (for respondent)


Michael D. Hutchens, Katherine A. McBride, John W. Munger, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.


U N P U B L I S H E D   O P I N I O N



Respondent, a masonry laborer, sought damages from appellant general contractor for negligence after she fell through a previously boarded-up hole in the floor of the Science Museum of Minnesota construction site.  The jury found appellant negligent and awarded damages.  Appellant contends that respondent failed to prove that it was negligent or that its negligence caused her to fall.  It also contends it had no duty to warn respondent about an open and obvious danger and that it was entitled to have the jury so instructed.  We affirm.


On April 2, 1998, respondent Fe’ Clardy fell through a hole on the third floor of the Science Museum of Minnesota construction project in St. Paul, Minnesota.  At the time of her fall, Clardy worked as a general laborer for Bill Dentinger, Inc., the masonry subcontractor of PCL Construction Services, Inc., the general contractor.  Clardy’s job required her to clear away the excess mortar and construction debris produced by the block masons who erected the museum’s cinder-block walls. 

On the morning of the accident, Clardy’s assignment was to clean up the third floor, where the masons had just finished erecting a 100-foot wall.  A hole for planned duct work had been cut into the floor at the location where Clardy worked.  A plywood board had been nailed and wired to the floor, covering the hole.  Although PCL’s foreman had, some months earlier, used pink fluorescent spray paint to write a warning on the board, with the word “hole” in large letters, that word was no longer visible.

As she worked, Clardy discovered the plywood board covering the floor-hole and removed the masonry debris that rested on it.  She noticed that the board did not move, and saw that it was nailed to the floor.  She knew the board was likely covering an opening.

After Clardy finished scraping around the board, she left the area momentarily.  When she returned to the work area three to five minutes later, she saw no evidence that anyone had been in the area while she was gone.  She resumed cleaning around the board and, while she was standing on the board, stepped backwards and fell through.  Clardy landed approximately 30 feet below on the sub-basement level. No one witnessed the fall.

Clardy sued PCL and Detinger, alleging that they negligently caused her to fall through the floor-hole.  At trial, Clardy presented two theories of negligence as to PCL:  (1) that PCL negligently failed to warn Clardy of the floor-hole beneath the plywood board and (2) that PCL negligently failed to inspect and maintain a safe working environment.  The jury returned a special verdict, finding PCL 80% negligent and Detinger 20% negligent.  Detinger did not appeal.  PCL moved for judgment notwithstanding the verdict (JNOV) or in the alternative, a new trial.  The district court denied those motions.  This appeal followed. 





PCL first argues that the trial court erred in denying its motion for JNOV or, in the alternative, a new trial.  PCL argues that Clardy failed to prove each of three elements necessary to present a prima facie case of negligence: (1) that one of PCL’s employees caused the board to be in a dangerous condition, (2) that PCL had notice that the board was in a dangerous condition, or (3) that PCL’s negligence caused Clardy’s injuries. 

In reviewing the denial of a motion for JNOV, this court must determine whether the record contains any competent evidence reasonably tending to sustain the verdict.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  The standard of review is de novo.  Id.  We must consider the evidence in the light most favorable to the verdict and affirm unless the evidence is “practically conclusive against the verdict.” Id. (quoting Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984)).  Similarly, we must affirm the denial of a motion for a new trial unless the verdict is “manifestly and palpably contrary to the evidence, viewed in the light most favorable to the verdict.”  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992).


            Creation of the Dangerous Condition


PCL argues that Clardy did not provide evidence that PCL caused the dangerous condition.  Clardy could not specifically identify who had obliterated the painted warning or how the board had deteriorated or been loosened. 

The court was confronted with a similar issue in Clark v. Chicago & N.W. Ry. 226 Minn. 375, 33 N.W.2d 484 (1948).  There, the plaintiff alleged that he tripped over an obstacle that was negligently placed in the path of workers.  The defendant argued that it could not be found negligent because there was no evidence of how long the obstacle had been in the pathway and no evidence that defendant was responsible for placing it there.  The court found that the jury could infer that one of the defendant’s employees placed the obstacle, with the knowledge of the defendant, based on defendant’s control and operation of the work place.  Id. at 387, 33 N.W.2d at 490. 

            Here, PCL likewise had exclusive control over the construction site.  Article 10 of the American Institute of Architects and Associated General Contractors’ contract signed by PCL provided that PCL was responsible for maintaining safety on the construction site:

The contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract * * * The contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to [employees].

In Lemmer v. IDS Properties, Inc., 304 N.W.2d 864, 871 (Minn. 1980), the court held that such a provision obligated the general contractor to ensure that the work site was not altered in such a way as to injure a subcontractor’s employee.  There, a subcontractor employee was asked to move equipment.  After a short absence from the job area, he found that scaffolding had been placed directly in front of his access.  Id. at 867.  When he attempted to move it, it collapsed onto him.  The court allowed recovery on proof that the scaffolding had collapsed, without specific evidence of who had caused the scaffolding to be in a dangerous condition.  Id.

            Following the rule recognized in Clark and Lemmer, Clardy did not have to prove who obliterated the warning sign or how the board had deteriorated or been loosened.  Rather, she met her burden by establishing that PCL retained control over the construction site and that the board was in a dangerous condition.  The jury could infer that someone under PCL’s control created or failed to rectify that dangerous condition.

            Moreover, the jury could conclude from plaintiff’s evidence that the board had not been properly secured by PCL and did not bear an appropriate warning.  One of Clardy’s expert witnesses, the former director of Minnesota’s Occupational Safety and Health Administration (OSHA), testified that the word “hole” spray painted on the board was not an adequate marking and that PCL should have anticipated that it would be obliterated or washed off.  This marking was in violation of OSHA’s regulations, which require metal or plastic signs that are secured in place and remain visible at all times that work is performed.  Guard rails are another approved alternative.  A second expert for Clardy testified that the board was subject to rain, cement and other debris and, when viewed shortly after the accident, had deteriorated.  The jury could determine from this evidence that PCL had failed to provide or maintain a proper warning on the board and had failed to detect its deteriorated condition. 

Knowledge of the defective condition

            PCL argues that Clardy did not prove that PCL knew that the warning had become obliterated or that the board had deteriorated.  In this regard, PCL urges this court to apply the same duty of care as a possessor of land.  Yet in Lemmer, the court rejected the notion that general contractors are only held to the same duty as possessors of land.  The court said:

Although a mere possessor of land would not have a duty to anticipate the danger in this case,  * * *  where the general construction manager is the possessor of the property and has voluntarily, contractually undertaken the duty of taking precautions for the safe construction of the building, a greater degree of care is required.


Id. at 868 (citations omitted). 

In a similar vein, in Baber v. Dill, 531 N.W.2d 493, 495-6 (Minn. 1995), the court noted specifically that under Restatement (Second) of Torts § 343A, there is an exception to the general duties of a possessor of land for a possessor of a construction site to provide a warning, even where a hazard is open and obvious, when the possessor “should anticipate the harm despite such knowledge or obviousness.”  Likewise, in Gaston v. Fazendin Constr., Inc., 262 N.W.2d 434, 435 (Minn. 1978), the supreme court applied that exception, holding that the danger of falling through a hole at a construction site was the type of danger that the possessor should anticipate. 

We conclude that the jury could infer that PCL was on notice of the dangerous condition without specific evidence of its state of knowledge.



Finally, PCL challenges the jury’s finding that PCL’s negligence was the cause of Clardy’s injury.  For a party’s negligence to be the proximate cause of an injury “the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, * * * though [the party] could not have anticipated the particular injury which did happen.”  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (quotation omitted) (quoting Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992).  Causation is usually a question of fact for the jury to decide unless reasonable minds can only come to one conclusion.  Id. at 402.

Here, there was no direct evidence on exactly how Clardy’s fall occurred.  PCL argued to the jury that Clardy caused the accident herself, presenting evidence from the accident scene that could lead to the conclusion that it was Clardy who had pried the board up.  On the other hand, Clardy testified that she did not pry up the board and had no reason to do so.  The trial court properly noted that the jury implicitly rejected any argument that Clardy pried up the board:

There was absolutely no reason for [Clardy] to pry up the board covering the opening through which she fell, and no evidence that she did pry it up  * * *  This Court agrees with the jury’s implicit finding that  * * *  Clardy was a credible witness.


* * * *


The jury’s verdict is consistent with a reasonable rejection of defense theories that either [Clardy] intentionally pried up the board and intentionally threw herself down the hole for some unknown reason, or that she intentionally pried up the board, forgot she had done so, and negligently fell down the hole.


It is well settled that judging credibility of witnesses and the weight given to their testimony rests within the province of the finder of fact.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).   We conclude that the jury could properly find that PCL’s negligence was the cause of Clardy’s injury.



            The second issue is whether the trial court erred in instructing the jury.  PCL requested four specific instructions that the district court refused to give: (1) the duty to warn is negated if the danger was obvious, (2) there is no duty to warn if the danger is obvious and is known, (3) one is allowed a reasonable time to discover and correct a dangerous condition and (4) one is not responsible for the unforeseeable acts of an unknown individual.  The trial court did allow PCL to argue each of these points to the jury.  

The trial court has broad discretion in determining jury instructions, and will not be reversed absent an abuse of discretion.  Alhom v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  We must determine whether the jury instructions, taken as a whole, are an accurate statement of the law.  Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).  If this court finds that the jury instructions accurately state the law, we must uphold the denial of a motion for a new trial.  Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). 

The district court provided the jury with the basic negligence and contributory negligence instructions.  See 4 Minnesota Practice, CIVJIG 25.10, 15.20 (1999).  PCL did not contend that these instructions were inaccurate or erroneous statements of the law, but sought more detailed instructions to support its theory of the case.  Given that the jury instructions did not misstate the law and were broadly worded to allow each party to fully argue its respective theories of the case, the trial court acted within its discretion to refuse to provide PCL’s requested instructions.