This opinion will be unpublished and

may not be cited except as provided by

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






Ann Zimmer and Edward Zimmer,





IBM Mid America Employees Federal

Credit Union,


Filed September 14, 1999


Toussaint, Chief Judge

Olmsted County District Court

File No. C8971704

Peter C. Sandberg, 206 South Broadway, Suite 505, Rochester, MN 55904 (for appellant)

Daniel J. Heuel, Muir, Heuel & Carlson, Box 1057, Rochester, MN 55903 (for respondent)

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Parker, Judge.[*]


TOUSSAINT, Chief Judge

On March 21, 1992, appellant Ann Zimmer slipped and fell on a patch of ice in the parking lot of the IBM Mid America Employees Federal Credit union ("the credit union"). The Zimmers sued the credit union for negligence and loss of consortium. After a seven-day trial, the jury found neither party negligent. The Zimmers moved for a new trial. On appeal from the trial courtís denial of their post-trial motion, the Zimmers challenge three of the trial courtís evidentiary rulings and its refusal to use one of the Zimmersí proposed jury instructions. Because the trial court did not abuse its discretion in making its evidentiary rulings and instructing the jury, we affirm.


The decision to grant or deny a new trial is within the sound discretion of the district court, and absent a "clear abuse of discretion," that decision will not be reversed. Johns v. Harborage I., Ltd. 585 N.W.2d 853, 858 (Minn. App. 1998).


Absent erroneous interpretation of the law, admitting or excluding evidence is within the trial courtís discretion, Kronig v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-6 (Minn. 1997). An appellate court will not disturb evidentiary rulings unless they constitute an abuse of the trial courtís broad discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Further, "[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining partyís ability to demonstrate prejudicial error." Id. (citation omitted).

The Zimmers first contend that the trial court erred in excluding a photograph of the credit unionís parking lot taken in March 1994, two years after the slip-and-fall incident. The photograph depicted an unobscured ice patch in the area where Mrs. Zimmer fell two years earlier. The Zimmers offered the photograph for illustrative purposes and "to show the location, size, character, and configuration of the ice as Mr. Zimmer observed it on March 21, 1992, the day of the fall." Mrs. Zimmer testified, however, that it had been snowing and sleeting the day of the fall and the ice patch was hidden under newly-fallen snow. The minimal probative value of a photograph of the premises two years after the actual incident is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. The trial court did not abuse its discretion in excluding the photograph.

The Zimmers next contend the trial court erroneously admitted the testimony of two of Mrs. Zimmerís treating physicians, Dr. Westerich and Dr. Gibbons. Before trial, the credit union moved for leave to depose the doctors and to use their video depositions at trial. The trial court granted the motion. Despite the trial courtís ruling, the Zimmers later moved to exclude the video depositions on the grounds that the credit union had not shown good cause for taking the depositions under Minn. R. Civ. P. 35.04.[1] On appeal, the Zimmers maintain that rule 35.04 mandates exclusion of the doctorsí testimony. Rule 35.04 does not bar the videotaped testimony of two of Mrs. Zimmerís treating physicians at trial. The videotaped depositions were taken pursuant to a trial court order. Moreover, before denying the Zimmersí motion to exclude, the trial court reviewed transcripts of the doctorsí testimony for relevancy and foundation. In the absence of any alleged evidentiary deficiency, we conclude that the trial court did not abuse its discretion in admitting the doctorsí testimony.

Finally, the Zimmers argue that the trial courtís exclusion of evidence of prior claim settlements came too late to avoid prejudice. Prior to trial, the court denied a motion in limine to exclude evidence concerning settlement of any claim or the fact of settlement. In its opening arguments, the credit union gave a long history of the claims Mrs. Zimmer had brought in the past. The focus of the credit unionís remarks was "the propensity of Mrs. Zimmer to make claims and present claims for injuries and damages * * *." Nevertheless, consistent with the trial courtís ruling, it mentioned that Mrs. Zimmer settled some of these claims. After the close of their case-in-chief, the Zimmers renewed their motion to exclude evidence of Mrs. Zimmerís receipt or non-receipt of social security and workersí compensation benefits, and personal injury settlements. The trial court granted their motion. Nevertheless, the Zimmers claim that the credit unionís opening remarks prejudiced them.

In addition to twice instructing the jury to base their decision on the evidence presented, the trial court specifically emphasized the following:

[T]he arguments or other statements made by the attorneys are not evidence in the case. Evidence is what you have seen and heard from the witness stand, by the deposition evidence, and from physical evidence Ė physical material that has been received into evidence. If the attorneys have made or I have made or should make any statement as to what the evidence is which differs from your recollection of the evidence, then you should disregard the statement and rely solely on your recollection.

The credit union did not present any evidence, nor was any evidence admitted that referred to any prior settlements. No prejudice justifying a new trial is apparent.


A trial court has wide discretion in the language used in jury instructions, and denial of a requested instruction is not grounds for a new trial if the instruction correctly states the applicable law. State Bank v. Stoeckmann, 417 N.W.2d 113, 116 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988). The trial courtís instructions on negligence, reasonable care, and a landownerís duty to use reasonable care to protect entrants on its land conformed to CIVJIG 101 and CIVJIG 330 and correctly stated the applicable law. A new trial is not warranted.


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

[1] Minn. R. Civ. P. 35.04 provides that once a party has waived its medical privilege and made required medical disclosures, "depositions of treating or examining medical experts shall not be taken except upon order of the court for good cause shown upon motion and notice to the parties and upon such terms as the court may provide."