This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2190

Antonio Perez,

Appellant,

vs.

Fil-Mor Express, Inc.,

Respondent.

Filed May 21, 1996

Affirmed

Klaphake, Judge

Goodhue County District Court

File No. C0-94-1584

Mitchell I. Kirshbaum, 6465 Wayzata Boulevard, Suite 770, Minneapolis, MN 55426 (for Appellant)

William M. Hart, Kenneth W. Dodge, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

After he sustained injuries in a fall from a loading dock, appellant Antonio Perez and his wife, Ginger Perez, brought this negligence action against respondent Fil-Mor Express, Inc. Perez alleged that James Matz, one of Fil-Mor's drivers, negligently pulled forward while Perez was unloading Matz's trailer.

Following a trial, the jury returned a special verdict finding Matz not negligent and Perez 100 percent negligent. Perez appeals from the trial court's denial of his posttrial motion for judgment notwithstaning the verdict (JNOV) or a new trial. Because we conclude that the trial court did not abuse its discretion in admitting evidence of standard unloading procedures and in instructing the jury that it could consider that evidence, we affirm.

D E C I S I O N

Evidentiary rulings "are committed to the sound discretion of the trial judge and will only be the basis for reversal where that discretion has been clearly abused." Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).

Perez challenges the trial court's admission of evidence of the common practices of workers at the Pepsi-Cola plant in Burnsville, as described by long-time Pepsi-Cola employees, and of workers at docks in 38 other states, as described by Matz. This evidence was admitted and the jury was instructed in accordance with CIVJIG 101.1, which states:

Evidence has been introduced in this case concerning custom in the industry. Such evidence is not conclusive on the question of whether the Plaintiff or the Defendant exercised reasonable care. Rather, it is to be considered by you along with all the other evidence in the case in deciding whether the Plaintiff or the Defendant exercised reasonable care.

See 4 Minnesota Practice, CIVJIG 101.1 (1986).

Perez first argues that "an objective, widespread usage must be demonstrated before the method of use becomes relevant to the particular issues being tried." He insists that the court improperly allowed individual unloaders to testify on their personal unloading methods and that such testimony failed to objectively establish custom or practice. He further insists that custom or practice cannot be established when employees are given no instructions and individually formulate their own methods of unloading.

The common practices at a particular location, however, are often the most probative evidence of custom because it is those practices which justify, or fail to justify, each parties' conduct at the time and place in question. See Schmidt v. Beninga, 285 Minn. 477, 489, 173 N.W.2d 401, 408 (1970) (evidence of dock workers communicating with driver to assure safe movement of tractor-trailers at loading dock admissible as evidence of custom); see also Restatement (Second) of Torts § 295A cmt. a, at 62 (1965) (common practice of small group who engage in particular activities may constitute custom or usage). While "widespread" industry practice may be shown, there is no requirement that common practices meet some national standard or usage. Indeed, as Fil-Mor notes, a proponent of a national or widespread practice must produce additional evidence that the practice was "reasonably brought home to the actor's locality." Restatement § 295A cmt. a, at 62.

In addition, Matz testified that he has delivered loads in 38 other states and that the practice is essentially the same at other locations. Given this, sufficient foundation was laid to establish that the practices followed by the workers at the Pepsi-Cola plant in Burnsville were consistent with the practice in 38 other states.

Perez next argues that he "cannot be held accountable to a custom or practice which was not communicated to him." While evidence of custom or practice is admissible only if well-known, an actual, subjective knowledge is not required. See id.; Schmidt, 285 Minn. at 484, 173 N.W.2d at 405 (undisputed that defendant aware of customary procedure). This type of evidence is probative of "what a reasonably prudent person would do under the same or similar circumstances." Schmidt, 285 Minn. at 489-90, 173 N.W.2d at 408 (citations omitted). Requiring an actual subjective knowledge of the standard or custom would improperly convert the objective "reasonable person" standard into a subjective inquiry about what was reasonable for one individual only.

In addition, the evidence shows that Perez actually knew that standard practice required him to communicate with Matz before entering a trailer and unloading. Perez testified that he knew this contact was essential for safety reasons. One of Perez's co-workers testified that he and Perez had discussed the importance of communicating with drivers prior to unloading. Perez's position was that he was nevertheless excused from following this usual procedure because the driver had already stopped at the shipping office. As Fil-Mor notes, however, it was for the jury to determine whether Perez's actions were reasonable.

We therefore affirm the jury verdict and the trial court's denial of Perez's motion for JNOV or a new trial.

Affirmed.


Footnotes

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