This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Wilma Irwin, et al.,





The Oceanaire Restaurant Company, Inc.,



Filed March 29, 2005


Gordon W. Shumaker, Judge


Hennepin County District Court

File No. PI 02-020957



Leslie A. Gelhar, Gelhar & Goldetsky, P.A., 5001 West 80th Street, Suite 835, Bloomington, MN 55437 (for appellants)


Jerome R. Klein, Candlin & Heck, 380 St. Peter Street, Suite 603, St. Paul, MN 55102-1313 (for respondent)



            Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.*



U N P U B L I S H E D   O P I N I O N


            A jury decided that respondent was causally negligent when appellant slipped, fell, and was injured on respondent’s premises.  The district court granted respondent’s motion for a JNOV.  Appellant contends the grant of a JNOV was error.  Because the evidence was not manifestly contrary to the verdict, the district court erred in granting a JNOV to respondent.  We reverse.


            Appellant Wilma Irwin slipped, fell, and fractured her right patella on the premises of respondent Oceanaire Restaurant Company, Inc. (Oceanaire).  A jury returned a verdict in her favor.  The district court granted Oceanaire’s motion for judgment notwithstanding the verdict.  Mrs. Irwin challenges that ruling.  Oceanaire asserts that Mrs. Irwin failed to prove causal negligence, and, therefore, the district court’s ruling was proper.

            The material facts relating to the issue of causal negligence are not in dispute.  On the evening of November 15, 2000, Wilma Irwin and some of her relatives went to the Oceanaire Restaurant to celebrate her birthday.  A restaurant host escorted the dinner party from the entrance area along a polished hardwood floor in the main hallway to their table in the rear dining room.  At a point near the restrooms along that hallway, Mrs. Irwin slipped and fell.  She testified: “I was walking toward the table when, suddenly, my foot slipped out from under me like lightning, just slipped out from under me and I became airborne and directly had all my body weight on my knee.”  Neither Mrs. Irwin nor anyone else inspected the floor at the point of the fall, but Mrs. Irwin noticed a wet spot on her pants over the area of her injured knee.  Oceanaire’s general manager, Steven Uhl, brought to Mrs. Irwin an ice pack for her knee.

            Received in evidence at trial was a report by Oceanaire’s assistant manager, Michael Kutscheid.  He stated: “A relish-tray was spilled and immediately cleaned up.  However, literally moments after cleanup, a guest was being walked back to our back dining room and slipped.  I got there right away to help her up.  I did not see anything on the floor, but it was freshly wiped wood and she was older and wearing heels.”

            In addition to the relish-tray spill shortly before Mrs. Irwin’s fall, there was evidence that the hardwood floor along the main hallway was ordinarily slippery; that the floor had been oiled at some undisclosed time prior to this incident; and that, about three feet from the point of the fall, there was a servers’ area near an oyster bar that sometimes had moisture on the floor and that a waitress had walked through that area and onto the hallway floor prior to the fall.  A waitress also testified that she looked at the floor after Mrs. Irwin fell and saw no wetness or debris or remnant of any sort from the relish-tray spill.  And no one else who looked at the area saw anything but an apparently dry floor.  Finally, this waitress testified that she and other customers had slipped on that floor before but that neither she nor anyone else had ever fallen down.



            Arguing that Wilma Irwin’s trial evidence did nothing more than raise several hypothetical possibilities of causal negligence, Oceanaire moved for what it characterized as a “JNOV as a directed verdict.”  Minn. R. Civ. P. 50.02(a).  Oceanaire did not also move for a new trial.

            The district court granted a judgment notwithstanding the verdict (JNOV), and in its memorandum it evaluated certain evidence, noting that the floor in the area of the fall was dry “shortly before [Mrs. Irwin’s] arrival at the restaurant”; was dry “[i]mmediately after [her] fall”; there was nothing on the floor to clean up after the fall; and the only evidence of any moisture in the area of the fall was Mrs. Irwin’s “vague statement that she observed moisture on her pants after the fall . . . .”

            A challenge to a JNOV raises purely a question of law, which is reviewed de novo.  Knuth v. Emergency Care Consultants, P.A., 644 N.W.2d 106, 110 (Minn. App. 2002).  On a purely legal question, the appellate court need not defer to the district court’s determination.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

            The foundational standard for granting a motion for a JNOV is that the evidence must be so overwhelming in favor of a particular party that reasonable minds could not differ as to the proper outcome of the case.  Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).  That standard in the context of this case means that the evidence was so overwhelmingly lacking that a reasonable jury could not properly have found Oceanaire causally negligent.

            There are three rules courts must follow in applying the JNOV standard: (1) the court must take into account all of the evidence in the case; (2) the court must view that evidence in a light most favorable to the verdict; and (3) “the court may not weigh the evidence or judge the credibility of the witnesses.”  Id. (citation omitted).  Furthermore, all inferences must be drawn in favor of the prevailing party.  St. Paul Fire & Marine Ins. Co. v. Honeywell, Inc., 611 N.W.2d 51, 57 (Minn. App. 2000), review denied (Minn. Aug. 15, 2000).

            We note, first, that the district court erred in applying the JNOV standard because it weighed the evidence and assessed credibility.  It drew the inference that there was no moisture on the floor that could have caused Mrs. Irwin’s fall and that Mrs. Irwin’s testimony as to a wet spot on her pants was “vague” and, inferentially, not probative.  The court also drew the inference that if there had been any moisture on the floor before the fall “it could only have been there for a very short period of time . . . .”

            The district court correctly stated the law that Mrs. Irwin was not required to show by direct evidence the exact manner and cause of her injury.  Sandvik v. Jammes, 281 Minn. 85, 89, 160 N.W.2d 700, 703-04 (1968).  But Mrs. Irwin was entitled to rely on circumstantial evidence to prove causal negligence as long as that evidence made it “appear to be more probable that the injury came in whole or in part from [Oceanaire’s] negligence than from any other cause.”  Id. 

            The very nature of circumstantial evidence is that it proves nothing directly but does so only by warranting reasonable inferences.  Although the mere fact that someone has slipped on a floor and fallen does not warrant any inference that the fall resulted from anyone’s negligence, there might be circumstances from which that very inference may be drawn.  If such an inference is plausible and reasonable, it has probative value.

            It is undisputed that the hardwood floor in the main hallway had a degree of slipperiness, that moisture on the floor of the nearby oyster bar can get tracked through into the main hallway on the shoes of the staff, and that a relish tray had been spilled and the spill was ostensibly cleaned up before the fall but at the site of the fall.  Combining these facts with the further undisputed facts that Mrs. Irwin’s foot slipped out from under her “like lightning,” that this occurred “literally moments after the cleanup,” that Mrs. Irwin fell on her knee, and that she observed after the fall that her pants were wet in the knee area, the jury reasonably could have drawn the inference that the spill had not been adequately wiped up and whatever moisture was left caused Mrs. Irwin to slip.

            In Gum v. Medcalf Orthopaedic Appliance Co., 380 N.W.2d 916, 921 (Minn. App. 1986), we emphasized just how stringent the JNOV standard is when we adopted a statement from Johnson v. Evanski, 221 Minn. 323, 327, 22 N.W.2d 213, 215 (1946):

[The] motion . . . should be denied unless the evidence in support of the verdict, and all reasonable inferences to be drawn therefrom, be so wholly incredible and unworthy of belief or so conclusively overcome by other uncontradicted evidence that the want of negligence or the presence of contributory negligence is so clear as to leave no room for an honest difference of opinion among reasonable [people].


            Oceanaire argues, and the district court agrees, that because those who inspected the area of the fall after its occurrence found the floor to be dry and without debris, there exists no evidence whatsoever that there had been moisture on the floor that could have caused Mrs. Irwin’s slip.  But all this shows is that there was no direct evidence of a causal substance after the fall.  The jury surely could have inferred that despite Oceanaire’s effort to clean the relish-tray spillage, it did not do so adequately; that there was enough wetness left remaining to make just that spot slippery; and that wetness was absorbed in the fall or dissipated quickly in the aftermath.

We find Bahl v. Country Club Market, Inc., 410 N.W.2d 916 (Minn. App. 1987), to be illustrative of precisely the kind of inferential reasoning that is plausible in the present case.  There, the decedent entered a supermarket in mid-December.  There had been a rug at the entrance, but store personnel removed it because it was wet.  Thus, there was no rug at the entrance, but a store employee testified that he had dry-mopped the area and the floor was dry when the decedent walked on it.  As she traveled across the ostensibly dry floor she “collapsed as if someone had pushed her down.”  Id. at 918.  She struck her head and died the next day.  The jury found the supermarket negligent.  The supermarket moved for a JNOV, arguing that there was no evidence of causal negligence on the part of the store and that there was evidence that the decedent collapsed and fell because of a pre-existing medical condition.  The district court denied the motion.

On appeal, the court noted that there was evidence that the floor was dry and that there was a competing plausible medical inference as to the cause of the fall.  But the court also pointed to circumstantial evidence that the fall happened at a time of the year that there is snow on the ground, that about a thousand people entered the store each day, that the decedent came in during the busiest hours, and there had been a wet rug in the area of the fall about ten minutes earlier.  So, despite the lack of direct evidence of the causative factor, and despite direct evidence that the floor in fact was dry at the time of the fall, the court affirmed the denial of a JNOV, holding that there was sufficient evidence for the jury reasonably to decide causation and to select between inconsistent theories of causation.

When we juxtapose Bahl and the instant case, we see striking factual similarities on the issue of causal negligence.  In each there was a slip and fall on a floor that had previously been wet but was, according to direct evidence, dry at the time of the fall.  And in each case there were circumstances from which the jury could reasonably infer that some slipperiness remained and caused the fall.

Oceanaire argues that Mrs. Irwin has presented several possible sources of wetness as the cause of her fall but has not pinpointed any one of them as the precise cause, and, thus, she has left the jury to speculate.  We disagree that the evidence left the jury to speculate as to cause.

It is not imperative that Mrs. Irwin identify through selection the precise alleged cause on which she relies.  If there are several possible causes and the jury finds any one of them, or perhaps two or more of them in combination, to be attributable to Oceanaire’s negligence, Mrs. Irwin has satisfied her burden.

Finally, Oceanaire argues that the heels on Mrs. Irwin’s shoes possibly caused her fall.  Assuming that as a plausible and reasonable inference, it serves as an alternate theory for the jury to consider, much the same as the alternate medical theory in Bahl.  It was still the jury’s prerogative to determine the probability of that theory or any of the theories offered by Mrs. Irwin.  The jury drew inferences that established Oceanaire’s causal negligence.  Although these were not the only inferences the jury could have drawn, they were reasonable and plausible and were not “manifestly and palpably contrary to the evidence.”  See Bethesda Lutheran Church v. Twin Cities Constr. Co., 356 N.W.2d 344, 348 (Minn. App. 1984) (holding that a verdict should stand unless it is manifestly and palpably contrary to the evidence) (citation omitted), review denied (Minn. Feb. 5, 1985).

It was error for the district court to have granted a JNOV to Oceanaire.  Thus, the jury’s verdict must be reinstated.


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