This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lake Minnetonka Hardware, Inc.,
d/b/a Shorewood True Value Hardware,
Filed June 15, 2004
Hennepin County District Court
File No. PI 02-002210
Robert E. Wilson, Roger D. Poehls, Robert Wilson & Associates, 404 Third Avenue North, Suite 201, Minneapolis, MN 55401 (for respondent)
Mark Scholle, Scholle Law Firm, Ltd., 8742 Leeward Circle, Eden Prairie, MN 55344-4031 (for appellant)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Crippen, Judge.
This appeal occurs in a personal injury suit arising from a fall in a hardware store. Appellant challenges the trial court’s denial of its motion for judgment notwithstanding the verdict (JNOV) that both parties were 50% at fault. Because the jury was permitted to review the evidence as presented and could reasonably infer appellant’s constructive knowledge of a dangerous condition, we affirm the denial of appellant’s motion.
Respondent Terry Paetzel entered appellant’s hardware store, Shorewood True Value Hardware, in March 2001 to purchase a cleaning supply. After being in the store for only three to seven minutes, she tripped over a misplaced, two-foot high, 50-pound bag while walking backwards. She never saw the misplaced bag on the floor. As a result of her fall, she broke her hip.
A store cashier who witnessed the accident testified that the first time she saw respondent and the misplaced bag was only moments before respondent backed up and fell over the bag. The cashier testified that she had no time to shout a warning to respondent. The cashier does not know how the bag came to be misplaced, although photographs in the record indicate the clarity of the cashier’s view of the bag’s location.
The store manager testified that he hired an investigator to take photographs and statements and to recreate the scene of the accident. Although the store cashier provided a statement outlining her version of the accident shortly after it happened, that statement was not provided to respondent despite discovery requests, and the store manager testified that he has not been able to find the cashier’s initial statement in any store files. In addition, the store manager does not recall meeting with the investigator or being asked to save any surveillance videotapes from that day’s events. Any surveillance videotape of the accident was destroyed in the ordinary pattern of reuse after 30 days had passed from the day of taping.
Counsel for respondent stated that the videotape was indirectly requested through discovery and interrogatories by the request for “any photographs, films, videotapes.” The first time the store manager claims he heard about the relevance of any surveillance videotape was during his deposition in December 2002, almost two years after the accident. There is no evidence indicating whether the investigator or any store employee saw the videotape before its destruction. The cashier testified that she was never asked to watch a surveillance tape of the events of that day.
Despite the investigation, no information was uncovered to show that any store employee noticed the misplaced bag or knew how it got where it was, and the store manager never further attempted to determine how the bag came to be misplaced on the floor. But the jury heard evidence about the destroyed videotape and the store cashier’s missing written statement.
The jury determined that the parties were equally negligent. In denying appellant’s motion for JNOV, the trial court concluded, in part, that a jury could reasonably infer constructive knowledge and fault on the part of appellant from the evidence showing the misplaced bag was in plain view of the store cashier’s checkout counter.
Determining whether to grant JNOV is a question of law that this court reviews de novo. Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn. 1990). Where the trial court has denied the motion, this court must affirm the denial “if, in the record, there is any competent evidence reasonably tending to sustain the verdict.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted). “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.” Id.
Appellant argues that JNOV should be granted because there is no evidence that the bag on the floor of the store aisle was placed there for a sufficient length of time for appellant to have had actual or constructive knowledge of its presence and to remove the bag before someone fell over it.
A landowner has a limited duty to use reasonable care for the safety of persons invited upon the landowner’s premises. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). The customer has the burden to prove the store’s negligence by showing either that the store caused the dangerous condition or that the store knew or should have known that the dangerous condition existed. Norman v. Tradehome Shoe Stores, Inc., 270 Minn. 101, 106, 132 N.W.2d 745, 749 (1965). Although these cases may also involve issues as to whether the danger is obvious to the invitee, that topic does not enter into disposition of this case. See Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 744 (Minn. App. 2000) (establishing absence of liability for obvious dangers, if evidence does not show that landowner should anticipate the harm despite this fact), review denied (Minn. Oct. 17, 2000); Restatement (Second) Torts § 343A (1965).
Because there is no evidence to support a conclusion that one of appellant’s employees misplaced the bag, appellant could only be found liable if there is evidence that an employee had constructive notice of the misplaced bag. See McDonough v. Newmans Cloak & Suit Co., 247 Minn. 250, 253, 77 N.W.2d 59, 61-62 (1956) (finding store not liable for negligence where no evidence existed as to who misplaced clothing stand in store aisle).
In denying appellant’s motion, the trial court stated that the jury could reasonably infer from the evidence that the store employees had constructive notice of the misplaced bag and that appellant’s arguments failed to “meet the high standard needed to grant JNOV.” The court found persuasive but not dispositive appellant’s argument that “even if constructive notice can be inferred from the bag’s placement and visibility from the checkout counter, [respondent] has failed to show that this inference preponderates over other inferences.”
Based on our review of the record, the testimony at trial permitted a lawful inference of constructive notice. The evidence included photographs showing the location of the bag within plain view of the store cashier. It is also significant that the jury heard evidence of the store cashier’s lost written statement and the destruction of surveillance videotapes. Although the content of the missing evidence remains unverified, it is within the jury’s purview to make its decision based on reasonable inferences from the evidence. Reasonable minds could find that the preponderant evidence in this case supports the conclusion that appellant had constructive notice.
We note that in the Minnesota cases appellant cites, the reviewing court affirmed the trial court’s grant of JNOV to the defendant store. See McDonough, 247 Minn. at 260, 247 N.W.2d at 64 (affirming JNOV to defendant store where there was no evidence that a store employee created dangerous condition, and parties agreed that constructive notice was not an issue under the facts); Messner v. Red Owl Stores, 238 Minn. 411, 413-14, 57 N.W.2d 659, 661-66 (1953) (affirming JNOV to defendant store where there was no evidence that store even sold bananas in its store where customer tripped on banana peels). These cases do not compel reversal of a contrary trial court judgment, which must be assessed on its own set of facts.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant contends that respondent cannot now challenge the effect of the missing evidence because the trial court denied respondent’s motion in limine for a jury instruction relating to adverse inferences from spoliation of evidence, and respondent failed to preserve the issue for appeal. Still, inferences from this evidence are part of the record relevant to the question of appellant’s duty. Because we affirm on that issue, we need not address the issues raised in respondent’s notice of review.