This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-694

Marlys Hiller,

Appellant,

vs.

N. Duane Lien,

as Personal Representative of

the Estate of Gordon Olson,

Respondent.

Filed December 17, 1996

Affirmed

Amundson, Judge

Polk County District Court

File No. CX-94-1628

Tyrone P. Bujold, Mullen J. Dowdal, Robins, Kaplan, Miller & Ciresi, 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for Appellant)

Timothy J. McLarnan, Roderick B. McLarnan, Gjevre, McLarnan, Hanner, Vaa, Skatvold & McLarnan, 524 Center Avenue, P.O. Box 8, Moorhead, MN 56560 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant Marlys Hiller challenges the trial court's denial of her motion for JNOV, or, in the alternative, a new trial, based on evidentiary issues. We affirm.

FACTS

On June 24, 1993, appellant Marlys Hiller was working as an x-ray technician at Northwestern Clinic, where respondent Gordon Olson was a patient. Hiller alleges that Olson jumped on her back while she was in a hallway at the clinic, causing her to sustain severe back injury.

Hiller brought a personal injury lawsuit against Olson. Olson died before trial, and N. Duane Lien, the personal representative of Olson's estate, was substituted as the defendant. The jury found that Olson had not been negligent.

Hiller brought a post-trial motion for JNOV, or in the alternative, a new trial, based on improperly admitted evidence. The trial court denied the motion. This appeal followed.

D E C I S I O N

In this case, Hiller's motion for JNOV, or in the alternative, a new trial, is based on evidentiary issues. The granting of a new trial on grounds of improper evidentiary rulings "rests upon the complaining party's ability to demonstrate prejudicial error." Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

I. Evidence of Olson's Medical Condition

Hiller argues that the evidence introduced regarding Olson's medical condition was irrelevant and prejudicial.

Hiller first argues that the evidence is not relevant because Olson's medical condition would not alter his duty of care toward her. Although physical infirmity does not alter the duty of care, evidence of a person's physical condition is admissible to the extent that the condition affects the ability to meet the duty of care. See Richie v. Elmquist, 283 Minn. 375, 379, 168 N.W.2d 332, 336 (1969). Medical evidence was presented on the issue of Olson's mobility and stability: an accident that nearly severed Olson's leg at the ankle, a placement of a catheter between his scrotum and anus, swelling of his ankle and foot caused by diabetes, and a hip replacement. All of these factors bear on Olson's ability to walk and stand. Considering that Hiller's suit is based on the allegation that Olson jumped on Hiller's back, facts regarding mobility are indeed relevant. In addition, the defense at trial involved the assertion that Olson had lost his footing and accidentally stumbled into appellant, likely relieving him of liability under a negligence standard.

Hiller also argues that even if the evidence is relevant, it should have been excluded because it was unfairly prejudicial. See Minn. R. Evid 403. She asserts that evidence of Olson's many health problems and his ultimate demise, especially when described by his daughter, created sympathy for him and his survivors in the minds of the jurors that inappropriately influenced their findings. In addition, Hiller contends that the graphic details of Olson's medical conditions unduly provoked sympathy for him.

These claims are not persuasive. They overlook the fact that these conditions, as well as Olson's death, were not fabricated, nor were they exaggerated or over-dramatized. The fact that some of the testimony was presented by Olson's daughter does not seem manipulative, since she, as his caregiver, witnessed his condition. The probative value of the evidence of Olson's medical conditions, which goes to the issue of his mobility and stability, substantially outweighed the prejudice and was properly admitted.

II. Evidence That Olson Would Not Touch a Woman That He Did Not Know

Evidence was introduced that Olson did not touch women he did not know. Hiller argues that such testimony was improperly admitted.

First, she asserts that it is character evidence and therefore should not have been admitted. While character evidence would not be admissible in this case, the question remains whether the evidence presented was character evidence. Respondent argues that the evidence of Olson's practice of not touching women he did not know was in fact habit evidence and is therefore admissible under Minn. R. Evid. 406. The difference between character and habit can be subtle, and the Rules Committee has adopted the following definitions: character evidence is a "generalized description of one's disposition, or of one's disposition in respect to a generalized trait," while habit evidence describes "one's regular response to a repeated specific situation." Minn. R. Evid. 406, 1989 Committee Comment (quoting McCormick on Evidence § 195 (2d ed. 1972)).

Hiller argues that Olson's practice of not touching women he did not know is too general and too volitional to be considered habit. The "semi-automatic" nature of a habit is one reason that habit evidence is considered probative. McCormick on Evidence, § 195 at 575 (3d ed. 1984). The practice of not touching women one does know does not seem as semi-automatic as some other habits, such as a driver who invariably signals before changing lanes, a person who goes down a certain stairway two or three steps at a time, or a person who goes to a certain bar every day after work. Id. However, being around unknown women is a situation that would likely happen with some regularity. Given the difficulty of distinguishing between character and habit, it does not appear that the trial court abused its discretion in finding the evidence regarding Olson's practice of not touching women he did not know was habit evidence.

III. Claassen's Testimony

Gerald Claassen testified regarding his opinion, based on seeing Olson walk from Claassen's office many times, of what happened on June 24, 1993. A lay witness may testify in the form of opinions or inferences, if those inferences are rationally based on the perception of the witness and helpful to the determination of a fact in issue. Minn. R. Evid. 701. Hiller argues that Claassen's testimony was speculative. The trial court agreed, but found the error harmless.

Hiller argues that the error was not harmless because the trial court determined harmlessness based on evidence of Olson's medical condition that Hiller argues was improperly admitted. Not only was the evidence of Olson's medical condition properly admitted, but also the trial court based its finding of harmlessness on the medical histories (presented through both testimony and medical records) of both Olson and Hiller. Olson was quite infirm at the time of the incident and Hiller has a 20-year history of back problems and has suffered several back traumas. The trial court found that the admission of Claassen's testimony, with the background of Olson's and Hiller's medical histories, was harmless error. The court did not abuse its discretion.

Affirmed.