This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Darnell J. Hildebrand,





Trent S. Brod,




Filed December 14, 2004


Toussaint, Chief Judge


Anoka County District Court

File No. C2-02-8590


Robert N. Edwards, 2150 Third Avenue, Suite 300, Anoka, MN 55303 (for appellant)


John Patrick Brendel, Brendel and Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN 55042  (for respondent)


            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Appellant-tenant challenges rulings by the trial court in this action for personal injuries she suffered when she tripped and fell on a stairway where there was no handrail. Because the trial court properly denied her motions for partial summary judgment on her claim of negligence per se and for a new trial based on the court’s exclusion of expert testimony; admitted respondent-landlord’s testimony regarding communications between the parties; and refused to give a negligence per se instruction, we affirm.



Respondent-landlord Trent Brod decided to add a basement bedroom to his duplex and removed the stairwell handrail to the basement in preparation for painting the wall.  He then leased the duplex to appellant Darnell Hildebrand and her husband and gave the Hildebrands possession of the duplex.  When the Hildebrands moved in, the stairwell handrail to the basement was not in place.  A few weeks later, appellant tripped and fell down the stairs when her sock caught on a protruding nail in the aluminum stair nosing. 

Respondent testified that he began reinstalling the handrail in the presence of the Hildebrands and Mr. Hildebrand (1) asked that he not reinstall it so they could more easily move boxes into the unit; (2) stated that he had a drill to accomplish the task; and (3) took possession of the handrail.  When respondent later visited the duplex to fix a blown circuit, he noticed the railing was not up and asked if they wanted him to reinstall it.  He stated that they declined his offer because they were still moving in.  

Mr. Hildebrand denies making any agreement to reinstall the handrail himself.  Instead he testified it was their understanding that respondent would return to the unit to paint the wall and then reinstall the handrail.  Mr. Hildebrand recalled that respondent came to repair the circuit, but claimed that occurred after his wife’s fall.  Mr. Hildebrand also testified that on several occasions he had renailed some of the aluminum stair nosing because the family’s socks had caught on them.  

In this action, appellant seeks medical costs and lost wages against respondent.  After depositions of the parties were taken, appellant moved for partial summary judgment on the claim of negligence per se.  The court denied the motion.

Appellant moved in limine to exclude, among other things, all testimony relating to (1) her husband having any responsibility for reattaching the handrail; (2) her or her husband having any responsibility regarding the nails securing the stair nosing; (3) respondent not being the responsible party; and (4) any negligence by her or her husband in the inspection of the premises.  Respondent moved to exclude appellant’s expert testimony.  The trial court denied appellant’s motion in limine and granted respondent’s motion to exclude the expert testimony.

The jury returned a special verdict finding respondent 20% negligent, but not the direct cause of the fall, and the Hildebrands each 40% negligent and the direct cause of the fall.  The trial court adopted the jury’s findings, concluded that appellant’s negligence exceeded that of respondent’s, and dismissed the action.  Appellant moved for a new trial, which the court denied, and then filed this appeal. 






Denial of Motion for Partial Summary Judgment and Motion in Limine

            Appellant sought partial summary judgment “finding that [Respondent] was negligent, as a matter of law, in the maintenance of the subject premises” under Minn. Stat. § 504B.161 (2002).  She argued that the landlord failed to maintain the premises in compliance with the building code requiring handrails in stairwells.  The district court denied the motion.  Appellant argues on appeal that the denial of partial summary judgment was error and she was entitled to judgment as a matter of law on the issue of negligence per se under the statute. 

On an appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the district courts erred in their application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A motion for summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03; Asmus v. Ourada, 410 N.W.2d 432, 434 (Minn. App. 1987).

Application of the Law

Appellant’s partial summary judgment motion sought a legal determination that section 504B.161 imposed a nondelegable duty, the breach of which was actionable.  See Minn. Stat. § 504B.161, subd. 1.  This narrow issue has been the subject of a number of published and unpublished cases, none of which support appellant’s position.  See Meyer v. Parkin, 350 N.W.2d 435, 438 (Minn. App. 1984) (rejecting claim that statute gives rise to cause of action for injury on leased premises or otherwise expands landlord's premises liability beyond that previously set forth in caselaw), review denied (Minn. Sept. 12, 1984).  To show negligence per se of a landlord for a violation of a building code, one cannot simply show that there was a violation of a code provision, Gradjelick v. Hance, 646 N.W.2d 225, 232 (Minn. 2002) (“[T]he mere fact of a code violation does not constitute constructive knowledge of the violation.”), one must show four factors:

(1)  the landlord or owner knew or should have known of the code violation;

(2)  the landlord or owner failed to take reasonable steps to remedy the violation;

(3)  the injury suffered was the kind the code was meant to prevent; and

(4)  the violation was the proximate cause of the injury or damage.


Bills v. Willow Run I Apts., 547 N.W.2d 693, 695 (Minn. 1996).  Therefore, the trial court correctly denied appellant’s request for judgment as a matter of law based on section 504B.161.

Appellant raised the same section 504B.161 issue in regard to her argument that it was error for the trial court to deny her motion in limine.  The motion sought exclusion of any evidence regarding the “illegal” agreement between respondent and Mr. Hildebrand to fix the handrail.  As noted, section 504B.161 does not create a cause of action for monetary damages, and all four Bills factors must be shown to establish liability for a code violation.  Given the record before the trial court at the time of the motion in limine, the court properly determined that the facts were disputed, the communications between respondent and appellant’s husband were relevant, and a trial was necessary to establish whether the facts constituted negligence or negligence per se.  Therefore, the court correctly denied appellant’s motion in limine.

Genuine Issues of Material Fact

            A genuine issue of material fact exists when the nonmoving party presents evidence that creates doubt as to a factual issue that is “sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). 

Appellant argued that four “undisputed” facts supported her summary-judgment motion:  (1) appellant leased the property from respondent; (2) the handrail was not in place when they moved in; (3) when appellant fell she could not stop the fall because the handrail was missing and; (4) appellant initially fell because her sock caught on a nail.   These facts do not support the legal conclusion that respondent was negligent.  Furthermore, respondent proffered evidence that he understood Mr. Hildebrand (1) asked that the handrail not be reinstalled until they were done moving in and (2) said that he would reinstall it.  Respondent also proffered evidence that he had no knowledge of the protruding nails.  The record reflects a genuine issue of material fact regarding respondent’s knowledge of a code violation on the day of the accident and his reasonable steps to remedy the violation—both factors required under Bills to establish negligence per se.


Exclusion of Expert Testimony

On the first day of trial, the court excluded the testimony of appellant’s expert, architect Marshall Levine, who would have testified that the missing handrail was a building-code violation; that respondent should have noticed the nails protruding from the stair nosings; that his failure to notice and repair the nails was a failure to inspect and remedy; and that he violated section 504B.161.  Levine also stated that the code and statute set what he believes is the “minimum standard of reasonable repair” for the premises.  Appellant also raised this issue with the trial court on her motion for a new trial, and the court again ruled that exclusion was proper. 

            Levine’s April 2003 affidavit was filed with the court in support of appellant’s motion for partial summary judgment.  Appellant planned to have him testify to the same effect at trial, but did not disclose that Levine would be an expert at trial until she produced her supplemental answers to interrogatories in late July, about one month before the scheduled jury trial.

            “[E]videntiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court.”  Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445 (Minn. 1990).  “If the witness is qualified and the opinion would be helpful to or assist the jury as provided in rules 701-703, the opinion testimony should be permitted. . . .  [O]pinions involving a legal analysis . . . are not deemed to be of any use to the trier of fact.”  Minn. R. Evid. 704 comm. cmt.  A party has an absolute right to a summary of an expert’s opinion, and inadequate answers to a party’s inquiry about the expert may warrant sanctions.  Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986). 

            Respondent’s counsel argued that the late disclosure of appellant’s expert witness prejudiced him because he could not take the steps necessary to obtain his own expert at such a late date.  He argued that this constituted prejudice and supported exclusion.  Appellant’s counsel provided no excuse for the late disclosure.  Although respondent’s counsel had received Levine’s affidavit for the summary-judgment motion, he had no notice that Levine would testify at trial and the affidavit contained nothing about Levine’s qualifications to make the statements contained therein. 

            Expert testimony that lack of a handrail constituted negligence was not necessary to appellant’s case.  Cf. Cornfeldt v. Tongen, 262 N.W.2d 684, 697-98 (Minn. 1977) (noting that expert testimony is necessary to prove medical malpractice).  It was not relevant to the issues of respondent’s knowledge and reasonable efforts to remedy.  Furthermore, such testimony from an expert would not have helped the jury determine these issues and would likely have influenced the jury to defer to the expert on questions of fact.  Given the wide discretion afforded the trial court in such rulings, the lack of excuse for the delay in disclosure, the questionable foundation for the testimony, and the unnecessary expert opinion being offered, the trial court ruling is affirmed.


Jury Instruction

The trial court instructed the jury on reasonable care, negligence, proximate cause, and the landlord’s duty to repair, but did not give a negligence per se instruction.  Although appellant does not specifically identify the instruction that she thought should have been given, the record indicates that appellant requested but was denied instructions that (1) a principal is responsible for an agent’s failure to repair; (2) appellant may not be found negligent because she had no duty; and (3) appellant may not be found negligent unless there was a safer route available to her.  

Trial courts are allowed considerable latitude in selecting the language in jury instructions.  Alhom v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Jury instructions must be viewed in their entirety to determine whether they fairly explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  This court will not reverse a trial court’s decision unless the instructions constituted an abuse of discretion.  See id.  An appellate court should view the instructions as far as possible from the standpoint of the total impact or impression upon the jury.  Lieberman v. Korsh, 264 Minn. 234, 240, 119 N.W.2d 180, 184 (1962).  If the instruction destroys the substantial correctness of the charge as a whole, causes a miscarriage of justice, or results in substantial prejudice, the error requires a new trial.  Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).

Reading the instructions as a whole and keeping in mind their total impact on the jury, this court cannot say that the instructions were insufficient or misstated the law.  First, the verdict shows that the jury found both parties negligent.  Second, the jury determined respondent’s actions were not the proximate cause of the fall.  Third, instructing the jury that the missing handrail constituted negligence or that appellant could not be found negligent misstates the law.  And, fourth, the record contains no evidence that respondent had knowledge of protruding nails.  Therefore, the trial court properly exercised its discretion.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.