This opinion will be unpublished and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

C8-96-326

Mary Sauter,

Appellant,

vs.

Ryan Properties, Inc.,

Respondent,

Ryan-Wilson Limited Partnership,

Defendant,

Lagerquist Corporation,

Respondent.

Filed November 12, 1996

Affirmed

Crippen, Judge

Hennepin County District Court

File No. 941307

Frederick A. McNeill, Zimmerman Reed, P.L.L.P., 5200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

Joseph M. Stocco, Karen R. Swanton, Law Offices of Christenson & Stocco, 1870 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for Respondents Ryan Properties, Inc., and Ryan-Wilson Limited Partnership)

John F. Angell, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401-2122 (for Respondent Lagerquist Corporation)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

CRIPPEN, Judge

Appellant Mary Sauter seeks a new trial, contending that the trial court erred in denying her request to present a claim of lost earning capacity, submitting a comparative negligence instruction to the jury, and deciding that respondent Lagerquist Corp. could not be liable on a theory of res ipsa loquitur. Respondent Ryan also seeks appellate relief, challenging the trial court's denial of its motion for a new trial or judgment notwithstanding the verdict. We affirm.

FACTS

In 1991, appellant worked for a company that leased office space in a building managed by respondent Ryan Properties, Inc., and owned by a Ryan affiliate. In October 1991, respondent Lagerquist Corp. entered into a contract with Ryan to maintain the elevators in the building. Although Lagerquist repaired and maintained the elevators, Ryan retained exclusive control over the operation of the elevators.

In December 1991, appellant attempted to enter a building elevator while its doors were closing, and she suffered a serious shoulder injury. The elevator doors were equipped with photoelectric eyes and door safety edges, two types of safety devices that open the doors when obstructed.

Appellant brought suit against Ryan and Lagerquist based on negligence, negligence per se, and res ipsa loquitur. The trial court instructed the jury on negligence per se, based on an administrative building code rule that required all elevators to have functioning door safety guards. After finding the doctrine of res ipsa loquitur inapplicable, the trial court granted Lagerquist's motion for a directed verdict. The jury reached a verdict finding Ryan two-thirds negligent and appellant one-third negligent. The jury also awarded appellant $57,734 in damages, which the trial court reduced to $38,489.32 based on appellant's comparative fault. The trial court subsequently denied the parties' cross-motions for a new trial or judgment notwithstanding the verdict, and this appeal followed.

D E C I S I O N

1. Loss of future earning capacity

Appellant first argues that the trial court erred in refusing to instruct the jury on her claim for loss of future earning capacity. Appellant relies on medical testimony indicating the scope of her injury and her testimony establishing her intent to become a paramedic.

Because a trial court has broad discretion in determining the propriety of jury instructions, an appellate court will not reverse the trial court's decision absent a clear abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). A new trial for an erroneous jury instruction is unwarranted if the jury's verdict is not contrary to the preponderance of evidence. Hahn v. Tri-line Farmers Co-op, 478 N.W.2d 515, 524 (Minn. App. 1991), review denied (Minn. Jan. 27, 1992).

Because future damages are impossible to prove with absolute certainty, plaintiffs may recover if they prove that such damages are reasonably certain to occur. Carpenter v. Nelson, 257 Minn. 424, 427, 101 N.W.2d 918, 921 (1960). Unless medical or other testimony shows that the progress of a disability will have a detrimental effect on future earning capacity, the court may not permit the jury to speculate as to the amount of lost future earnings. Mack v. McGrath, 276 Minn. 419, 422, 150 N.W.2d 681, 683 (1967); see Sturlaugson v. Renville Farmers Lumber Co., 295 Minn. 334, 337, 204 N.W.2d 430, 432 (1973) (eliminating recovery for loss of future earnings where there was insufficient evidence and inadequate trial court instructions, notwithstanding expert testimony on the issue).

The jury may infer loss of earning capacity from evidence other than medical testimony, such as a showing that the plaintiff is not fully recovered at the time of trial. Carpenter, 257 Minn. at 430, 101 N.W.2d at 922. And a finding of lost future earning capacity does not require evidence of past earnings or the expression of future desired areas of employment. Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987); see LeMay v. Minneapolis St. Ry., 245 Minn. 192, 200, 71 N.W.2d 826, 831 (1955) (allowing plaintiff with permanent disability to recover for loss of future earning capacity even though she presently was performing household duties and did not intend to resume employment). The trier of fact should base an award for impairment of earning capacity on such factors as age, life expectancy, health, occupation, talents, skill, experience, and training. Kwapien, 400 N.W.2d at 184.

The trial court conceded that it applied an overly restrictive standard to appellant's claims for future damages, but it still denied her motion for a new trial. It found that appellant suffered no prejudice because she failed to introduce evidence indicating that her purported loss of earning capacity was reasonably certain to occur.

The record contains insufficient evidence to support appellant's contention that she suffered prejudice from not receiving the instruction on future earning capacity. Although one doctor testified that appellant suffered a three percent disability due to loss of arm motion, he indicated that the permanent disability did not concern overhead arm usage. Appellant's other doctor testified that appellant may have a long-term work restriction preventing repetitive heavy overhead use of her arm. But appellant produced no medical evidence that her permanent disability or the possible work restriction on heavy overhead arm usage would limit her future earnings at her current job. Appellant testified at length about her current limitations, but these problems are irrelevant to future lost earnings absent medical testimony establishing a tie between her current problems and likely future problems.

Even if appellant could show some limit on her ability to become a paramedic, she offered only speculative testimony regarding her loss of earning capacity as a paramedic. Appellant's intent to become a paramedic is too remote to establish to a reasonable certainty that this would become her vocation.

Appellant also failed to show that she would be unable to perform as a paramedic in the future. The trial court excluded expert testimony that appellant offered on this subject, however, because it was confined to appellant's future work as a paramedic, a possibility the court found to be remote or speculative. A trial court's decision to exclude expert testimony will not be reversed absent a clear abuse of discretion, even if this court would have reached a different conclusion. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990). Appellant has not demonstrated that the trial court clearly erred in excluding the expert testimony on paramedics.

The record indicates that appellant may suffer a loss of future earning capacity, but a preponderance of the evidence does not establish that such a loss will occur with reasonable certainty. Hahn, 478 N.W.2d at 524. Although plaintiff should have received an instruction on loss of future earning capacity, she has not demonstrated that the trial court's error caused sufficient prejudice to warrant a new trial.

2. Negligence per se

Respondent Ryan argues that the trial court should have granted its motion for a new trial or a judgment notwithstanding the verdict because the evidence does not support a finding of negligence per se. Ryan contends that the common law principle that a landlord is only liable for a tenant's injuries if the landlord has knowledge of the relevant defect should govern this case.

The decision to grant a new trial ordinarily lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). Where the trial court exercised no discretion but instead based its order on a matter of law, a de novo standard of review applies. Id. Denial of a motion for judgment notwithstanding the verdict is a question of law that receives de novo review. Schendel v. Hennepin County Med. Ctr., 484 N.W.2d 803, 808 (Minn. App. 1992), review denied (Minn. July 16, 1992).

Initially, we find it important that, notwithstanding the trial court's findings, the court gave the jury a general negligence instruction and also properly instructed the jury that a violation of the code was negligence only if the jury found neither excuse nor justification. The court allowed Ryan to argue excuse, including lack of notice and opportunity to repair. Still, the jury rejected Ryan's notice argument and found Ryan was negligent. Although the trier of fact fully considered the lack of notice to Ryan, it found the argument unpersuasive. Despite this view of the case, we examine the trial court's finding that Ryan's conduct could be considered negligence per se.

The State Building Code incorporates by reference a regulation requiring safety edges on all elevator doors. Minn. R. 5205.0450 (1991) (incorporating American Nat'l Standard Safety Code for Elevators & Escalators Rule 112.5 (American Nat'l Standards Inst. & American Soc'y of Mechanical Eng'rs A17.1e 1987) [hereinafter Rule 112.5] (amended 1990)) (current version at Minn R. 1307.0065 (1995)); see Minn. Stat. § 183.358 (1990) (authorizing rulemaking on elevator standards) (current version at Minn. Stat. § 16B.748 (Supp. 1995)). The rule provides that a power-operated door shall be provided with a reopening device that "will function to stop and reopen" a door in the event that the door is obstructed while closing. Rule 112.5.

Although the trial court stated a general negligence instruction to the jury, the court made a finding that Ryan was negligent per se for violating Rule 112.5.

Ryan suggests that the standard recently employed in Bills v. Willow Run I Apartments, 547 N.W.2d 693, 695 (Minn. 1996), governs this case for numerous reasons. In Bills, the supreme court ruled that in the case of a landlord, a violation of the Uniform Building Code (UBC) without prior notice will not create negligence per se. Id. at 694. A tenant who injured himself when he slipped on an icy exterior landing initiated the case. He sued the landlord under the theory of negligence per se after a subsequent building inspection revealed that the landing, its handrails, and its risers were in violation of the UBC. Id. at 693-94. We do not find Bills authoritative on the negligence per se issue in this case.

The nature of the defect distinguishes this case from Bills. Bills concerned a building's front landing covered by ice, an open and obvious danger. Id. at 693-94. The court noted that the tenant had knowledge of the landing because he had lived there for seven months and had used the entry "countless times." Id. at 695. Unlike a front landing, elevator safety mechanisms are hidden, and appellant did not become aware of the safety mechanism's dangerous condition until her injury occurred. This reading of Bills corresponds with the common law principle that a tenant absorbs a landlord's duty regarding open and obvious conditions. Because the immediate case involves a hidden defect, the Bills standard does not apply.

The nature of the administrative rule also distinguishes Bills. The regulation in Bills applies to permanent structural characteristics where compliance remains a static condition once the building code inspector issues a permit. Rule 112.5 concerns hidden conditions in operating machinery that require frequent inspection and continuing compliance. As the Bills court noted, the UBC does not require a landlord to re-inspect a building "after the certified building inspector issued an occupancy permit and inspection report." Id. at 694-95.[1] The rules governing elevators require the landlord to re-inspect the functioning of the elevator. Thus, Rule 112.5 differs from the UBC.

Furthermore, the Bills court found no evidence that the UBC violation was the proximate cause of the tenant's injury. Id. at 695. It is undisputed that the elevator doors proximately caused appellant's shoulder injury. For this added reason, the Bills standard requiring the landlord's knowledge of the defect does not apply in this case.

Finally, Ryan contends that the record contains inadequate evidence of a violation because Rule 112.5 merely requires the installation of a mechanism that, by its description, functions in a certain manner. Under this interpretation, no violation occurred because Ryan had installed the requisite safety device, which would prevent injuries when functioning properly. Ryan contends that the rule was not intended to establish negligence whenever the device fails to function properly. Otherwise, Ryan argues, Rule 112.5 imposes absolute liability.

The record contains sufficient evidence that the rule violation occurred and that the trial court allowed Ryan to argue to the jury that no actual malfunction occurred. We also recognize that Ryan's reading of Rule 112.5 would emasculate its purpose to provide workable safety devices. The rule requires elevator operators to install door safety guards that continue to function properly.

The trial court properly denied Ryan's motion for a new trial or judgment notwithstanding the verdict because the record contains sufficient evidence to support the finding that Ryan violated Rule 112.5 and was thus negligent per se.

3. Comparative negligence.

Appellant contends that the trial court erred in allowing the defense of comparative negligence where it also found Ryan was negligent per se.

An appellate court reviews de novo a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

A violation of a statute may constitute negligence per se if the plaintiff is a member of the class protected by the statute and the plaintiff sustained an injury resulting from a harm the legislature intended the statute to prevent. Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 558 (Minn. 1977). A violation of a building code may constitute negligence per se. Raymond v. Baehr, 282 Minn. 109, 113, 163 N.W.2d 51, 54 (1968); Boyum v. Main Entree, Inc., 535 N.W.2d 389, 390 n.1 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995). Negligence per se is not liability per se because the defenses of assumption of risk, contributory negligence, and proximate cause remain, and negligence per se, once proved, does not differ in its legal consequences from negligence at common law. Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981).

A finding of negligence per se does not prohibit consideration of comparative negligence. See Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284 (Minn. App. 1992) ("[W]e perceive no reason why the jury would have problems with determining comparable fault applying negligence per se relative to common law."). Because comparative negligence remains a viable defense to negligence per se, the trial court properly submitted the issue of appellant's comparative fault to the jury.

Appellant argues that the administrative regulation at issue creates absolute liability because the regulation was intended to protect "a limited class of persons from their inability to protect themselves." Seim, 306 N.W.2d at 811 (quoting Dart v. Pure Oil Co., 223 Minn. 526, 535, 27 N.W.2d 555, 560 (1947)). But Minnesota law, as the trial court properly noted, has reserved absolute liability for such unique statutes as child labor laws, the protection of intoxicated persons, and prohibitions on the sale of dangerous articles to minors. We find no basis for imposing that level of liability for violation of regulations governing elevator safety. Id. at 811-12; VanWagner v. Mattison, 533 N.W.2d 75, 78 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). Rule 112.5 does not create absolute liability.

4. Res ipsa loquitur.

Finally, appellant asserts that the trial court erred in ruling that the doctrine of res ipsa loquitur is inapplicable to this case. Appellant disputes the trial court's directed verdict for Lagerquist. In reviewing directed verdicts, appellate courts accept as true all evidence favorable to the party against whom the directed verdict motion was decided as well as all inferences that can be deduced from such evidence. Hoven v. Rice Memorial Hosp., 396 N.W.2d 569, 570 (Minn. 1986). For the doctrine of res ipsa loquitur to apply, the claimant must prove that (1) ordinarily the injury would not occur absent negligence, (2) the cause of the injury was in the exclusive control of the defendant, and (3) the injury was not due to the claimant's conduct. Id. at 572.

The trial court refused to apply res ipsa loquitur on grounds that appellant's expert testified that this type of accident could occur without negligence, the elevator was not under Lagerquist's exclusive control, and appellant failed to suffer prejudice because she would not have received any additional recovery under this theory.

Appellant fails to establish that appellant's injury ordinarily would not occur without negligence. In Hoven, for example, the Minnesota Supreme Court refused to apply res ipsa loquitur where the plaintiff's expert opined that the plaintiff's injuries "do not usually occur" without negligence but admitted that such injuries occasionally occur absent negligence. Id. Although the record indicates that negligence by respondents was a possible cause of appellant's injury, no expert testified that appellant's injury ordinarily does not occur absent negligence. Furthermore, the expert testimony establishes that such an injury does not usually require a failure of an elevator door safety mechanism. Appellant's expert testified that inspections of elevator doors following reported incidents often reveal nothing wrong with the doors. Appellant has failed to show that her injury ordinarily does not occur absent negligence because the record reveals that elevator door incidents occasionally occur without a door malfunction.

Appellant also argues that the control of the elevator by the three defendants does not defeat the exclusive control requirement regarding Lagerquist. Appellant primarily relies on Mahowald v. Minnesota Gas Co., 344 N.W.2d 856 (Minn. 1984), but Mahowald concerns a gas company's non-delegable responsibility to maintain and inspect its mains in the public streets at all times, not its exclusive authority over the public streets. Id. at 862-64. Furthermore, Minnesota courts have limited the application of Mahowald to cases involving gas companies. Leuer v. Johnson, 450 N.W.2d 363, 366 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). Thus, Mahowald does not control. Because Lagerquist only performed maintenance and repairs on the elevator, whereas Ryan controlled and operated the elevators, the trial court properly did not impute exclusive control to Lagerquist. See Otis Elevator Co. v. Yager, 268 F.2d 137, 143 (8th Cir. 1959) (refusing to apply res ipsa loquitur, as defined under Minnesota law, to elevator maintenance company because it did not have exclusive control); Blackhawk Hotels Co. v. Bonfoey, 227 F.2d 232, 237 (8th Cir. 1955) (same).

The jury's finding of comparative negligence defeats the res ipsa loquitur requirement that the plaintiff's conduct did not contribute to the injury. Thus, the trial court did not err in granting a directed verdict for Lagerquist.

Affirmed.

[ ]1The North Carolina case upon which the Minnesota Supreme Court relied for the Bills standard also concerned a building code provision governing a similar static condition, the steps between a building and its parking lot. Lamm v. Bissette Realty Inc., 395 S.E.2d 112, 114 (N.C. 1990).