This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-98-1982

Gail R. Johnson, et al.,

Respondents,

vs.

Motel 6 GP, Inc., et al.,

Appellants.

Filed July 20, 1999

Reversed

Norton, Judge[*]

Hennepin County District Court

File No. 953713

Thomas L. Steffens, Michael J. Pitton, Steffens & Rasmussen, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for respondents)

Michael S. Kreidler, Louise A. Behrendt, Stich, Angell, Kreidler, Brownson & Ballou, P.A., 250 South Second Avenue, #120, Minneapolis, MN 55401 (for appellants)

Considered and decided by Kalitowski, Presiding Judge, Huspeni, Judge,* and Norton, Judge.

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

Appellant Motel 6 challenges the trial court's grant of a judgment notwithstanding the verdict (JNOV) and its determination that, absent a misunderstanding of the legal term "direct cause," no reasonable jury could have found both that Motel 6 was negligent in its hiring and/or retention of Elwood Williams and that the motel was not a direct cause of Williams' rape of respondent. Because the grant of a JNOV is an extraordinary remedy, not warranted in this situation, we reverse.

FACTS

Respondent Gail Johnson began working as a desk clerk at the Richfield Motel 6 in 1991. Elwood Williams filled out an application to work at the motel as a housekeeper on September 14, 1992, and began working sometime thereafter. He was hired despite a number of deficiencies in his application, including that he lied about having never been convicted of a crime and he gave a false address. Williams had pleaded guilty to a felony theft charge in April 1992. His background was never checked.

In October, Williams began making various unwanted sexual comments to both Johnson and her daughter who was also a Motel 6 employee. Among these were various direct propositions for sex. Johnson testified that she reported these incidents to Jo Steffens, one of the Motel 6 managers. On December 10, 1992, Williams allegedly showed Johnson his penis while both of them were behind the front desk. Johnson reported this incident to Steffens. Steffens confronted Williams with the incident and made him read the company's sexual harassment policy and apologize to Johnson. Steffens took no further action. Williams denied this incident at trial.

From January 1, to January 8, 1993, Steffens and her husband were on vacation, and Lucy and Steven Stouffer filled in for them as managers of the motel.

On January 2, 1993, Johnson was scheduled to work from 10:30 a.m. until 8:00 p.m. The person who was supposed to relieve Johnson could not get to work because of bad weather, so Johnson agreed to work an additional shift, ending at about 5:30 a.m. or 6:00 a.m. the next morning. During that time, Johnson was asked to clean guest rooms in addition to her front-desk duties. While she was cleaning rooms, Williams twice entered and asked her if she wanted to have sexual intercourse. Johnson reported each incident to Steven Stouffer.

After completing her double shift, Johnson signed herself into an unoccupied guest room. Sometime that morning, she awoke to find Williams in bed on top of her. Appellant alleged that he raped her and threatened to kill her. At trial, the jury found that the rape had occurred.

Williams was fired on January 5, 1993, for events unrelated to the rape.

In March 1994, Johnson told her husband that she had been raped and that she believed the child she had given birth to in August 1993 was Williams'. A blood test in a paternity action confirmed that Williams was the child's father.

Trial testimony was taken in October and November 1997. The jury deliberated on November 4-5, 1997. At one point during deliberations, the jury asked the trial court the following question: "Can we get a clearer definition of direct cause?" The trial court responded with this answer:

In addition to the instruction on direct cause, you are instructed as follows: there may be more than one direct cause of an incident. When the effects of the fault of two persons actively work at substantially the same time in bringing about the incident, each can be a direct cause of the incident.

The jurors then asked for a dictionary, and the trial court responded that they should give words their ordinary meaning.

On the special verdict form, the jury gave the following answers:

1. Did Elwood Williams rape Gail Johnson on the premises of the Richfield Motel 6 on January 3, 1993?
Answer: Yes
2. Was Motel 6 negligent?
Answer: Yes
3. Was the negligence of Motel 6 a direct cause of the January 3, 1993 incident?
Answer: No

After the trial, the court granted Johnson's motion for JNOV and conditionally granted her motion for a new trial. The judgment in the amount of the jury verdict, $235,000, was entered for respondents in October 1998.

D E C I S I O N

I. JNOV

In determining the propriety of granting a motion for judgment notwithstanding the verdict, this court should look at "whether there is any competent evidence reasonably tending to support the verdict." Conover v. Northern States Power Co., 313 N.W.2d 397, 401 (Minn. 1981). A jury's verdict should be upheld unless the evidence is "practically conclusive against the verdict and reasonable minds can reach only one conclusion." Nadeau v. County of Ramsey, 277 N.W.2d 520, 522 (Minn. 1979). In reviewing a trial court's decision to grant a JNOV, we review the entire record, Sikes v. Garrett, 262 N.W.2d 681, 683 (Minn. 1977), and apply the same standard as the trial court because the granting of a JNOV is purely a question of law. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979).

The trial court determined that the jury could not have found both that

Gail Johnson was raped in a Motel 6 guest room by an employee who Motel 6 was negligent in retaining after it learned that such employee had earlier lewdly exposed his penis to Ms. Johnson while at work on the Motel 6 premises,

and that "such negligence was not a direct cause of the rape of Ms. Johnson by such employee" without "a likely material misunderstanding of the legal concept of direct cause[.]" For this reason, the trial court granted respondent's posttrial motion.

But as appellants contend, both the theories of negligent hiring and negligent retention were presented to the jury, yet the special verdict form only asked the jury to determine whether Motel 6 was negligent. Because of this, it is possible that the jury concluded that Motel 6 was negligent in hiring Williams but that such negligence was not a direct cause of the rape.[1]

The trial court relied on Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983), to suggest that, even if the jury's finding of negligence were based on a theory of negligent hiring, a reasonable jury should have found that Motel 6's negligence was a direct cause of the rape. We note that the trial court had ample opportunity to provide a workable definition of "direct cause" to the jury, both in its initial instructions and in its subsequent clarifying instructions. But in Ponticas, the supreme court was asked to review a jury verdict of negligence, id. at 908, which could be reversed only if it was "manifestly and palpably contrary to the evidence." Roemer v. Martin, 440 N.W.2d 122, 124 (Minn. 1989) (citation omitted). Because of courts' respect for jury findings and because the jury could have found that Motel 6 was negligent in hiring but that its negligence was not a direct cause of the rape, we reverse the trial court's grant of a judgment notwithstanding the verdict under these circumstances.

II. New Trial

A motion for a new trial is not to be granted unless

the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.

Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983) (citation omitted).

The standard for granting a motion for a new trial is less demanding than the standard for granting judgment notwithstanding the verdict. Id. at 856. But while the trial court's decision to grant a new trial will be reversed only for a clear abuse of discretion, the trial court does not have the "discretion to grant a new trial merely because [it] would have reached a different conclusion than did the jury." Jondal v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 406 N.W.2d 539, 542 (Minn. App. 1987) (citing City of Ogema v. Bevins, 341 N.W.2d 298, 299 (Minn. App. 1983)).

We hold that, under these circumstances, because the trial court's provisional grant of a new trial was based on the same reason as its grant of a judgment notwithstanding the verdict, namely that it would have reached a different conclusion than the jury, we likewise reverse the trial court's provisional grant of a new trial.

Because of our disposition of these two issues, we need not reach the other issues raised by the parties.

Reversed.

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

[1] We note that, at trial, Williams denied exposing himself to appellant but, because we conclude that a reasonable jury could have found both that the motel was negligent in hiring Williams and that its negligence was not a direct cause of the rape, we do not address whether the motel was negligent in retaining Williams.