This opinion will be unpublished and

may not be cited except as provided by

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




Robert F. Kolosky,



Underground Contractors of Perham, Inc.,


Filed January 28, 1997


Norton, Judge

Carlton County District Court

File No. CX-94-1000

Kevin J. Kolosky, 5640 - 41st Avenue South, Minneapolis, MN 55417 (for Respondent)

Gary G. Liebmann, 501 East Highway 13, Suite 114, Burnsville, MN 55337 (for Respondent)

John D. Kelly, Kathleen S. Bray, 1000 First Bank Place, 130 West Superior Street, Duluth, MN 55802 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg, Judge.[*]



Appellant contractor challenges the denial of its motion for judgment notwithstanding the verdict (JNOV) or a new trial, contending the trial court erred as a matter of law, because it did not allow expert testimony to establish the specific duty of care it owed to respondent. The trial court did not abuse its discretion when it determined that expert testimony was not necessary to establish the appropriate standard of care. Furthermore, denial of the motion for JNOV was proper because the evidence in the record supports the jury verdict. We affirm.


Respondent Robert F. Kolosky's building suffered cosmetic and structural damage during and shortly after the time that appellant Underground Contractors of Perham, Inc., was excavating a trench in front of and along side of Kolosky's building in order to lay underground communications cable. Kolosky brought a negligence action against Underground Contractors and U.S. West Communications,[1] claiming that the vibrations and removal of lateral support (dirt) during construction caused cosmetic and structural damage to Kolosky's building. After trial, the jury returned a special verdict finding Underground Contractors negligent and the direct cause of $20,000 in damages to Kolosky's building. The trial court denied Underground Contractors' motion for JNOV or, in the alternative, a new trial on all issues.


Underground Contractors claims that Kolosky failed to establish the necessary elements of duty and breach for his negligence claim, because expert testimony was necessary to establish the specific duty of care that Underground Contractors owed in this case. We disagree.

The existence of a legal duty in any given situation is a question of law for the court to determine. Carlson v. Mutual Serv. Ins., 494 N.W.2d 885, 887 (Minn. 1993). We defer to the trial court's discretion in deciding whether expert opinion was necessary to assist the jury in determining if Underground Contractors had met the standard of care; we will not reverse absent a clear abuse of that discretion. Seaton v. County of Scott, 404 N.W.2d 396, 399 (Minn. App. 1987), review denied (Minn. June 25, 1987). The trial court may allow expert testimony if scientific, technical, or other specialized knowledge would assist the jury in deciding a fact issue. Minn. R. Evid. 702.

In Seaton, expert testimony was necessary to establish the standard of care on plaintiff's claims of negligent design and construction of road and bridge along a highway. Id. at 399-400. Here, however, Underground Contractors merely dug a trench, laid four-inch PVC pipe, and refilled the trench. Although Underground Contractors utilized its knowledge and special heavy equipment when digging the trench, this case did not involve the type of technical engineering and design that the city in Seaton undertook to create the bridge.

Indeed, when denying JNOV, the trial court noted that the jury was familiar with road construction crews digging trenches and using backhoes and jackhammers. The jury could have expected a backhoe to dig and scoop up material from one place and move it to another; its usual use would not include using the bucket as a sledgehammer to break concrete, as was alleged here. Under these circumstances, the court determined that the work performed was not so technical as to require expert testimony to establish Kolosky's case. See Atwater Creamery Co. v. Western N. Mut. Ins. Co., 366 N.W.2d 271, 279 (Minn. 1985) (stating that where acts complained of are "within the general knowledge and experience of lay persons, expert testimony is not necessary to establish a standard of care").

Nor did the work here invoke a special standard of care; it fell under the general standard of reasonable care. Underground Contractors' contract with U.S. West provides that Underground Contractors shall assume all responsibility for the job and perform all work with "diligence" and "in an entirely safe, proper and secure manner with the utmost care so as to prevent loss, injury or damage to any person or property." Further, the contract requires the contractor to "perform the work with care and due regard for the safety and convenience of vehicular and pedestrian traffic, and the property of others." The thoroughness and specificity of the contract provisions demonstrate that U.S. West and Underground Contractors intended the reasonable care standard to apply here. The trial court properly instructed the jury on negligence pursuant to 4 Minnesota Practice CIVJIG 101 and did not err in allowing Kolosky to proceed with trial on his negligence claim under the reasonable care standard.

Finally, Underground Contractors contends it was entitled to JNOV or a new trial, because the evidence did not support the verdict. We disagree. This court must affirm the denial of JNOV if the record contains any competent evidence that reasonably tends to support the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). The motion for JNOV "admits every inference reasonably tending to be drawn from the evidence as well as the credibility of the testimony for the adverse party." Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

Testimony from several witnesses supports the jury's verdict that Underground Contractors was negligent. See Smith v. Carriere, 316 N.W.2d 574, 575 (Minn. 1982) (holding that negligence and breach of duty are questions of fact for jury). An eyewitness testified that the crew used the backhoe's bucket as a sledgehammer to break concrete and remove it. The same witness testified that he felt vibrations from the machinery in the yard behind the building. Kolosky testified that he saw the crew using a "hydrohammer" on the back of the backhoe to break up concrete. Kolosky presented numerous photos depicting the damage he had incurred, allegedly from the construction. Kolosky's expert witness testified that the structural damage could have been caused by the construction vibrations and the removal of the lateral support from the building's foundation.

In addition, the jury was presented with the "General Conditions" of the contract, which required Underground Contractors to "obtain permission from the owner before in any way interfering with subsurface structures or property of others" and to "refrain from opening any more trench than is necessary to properly conduct the work." Yet, Kolosky testified that no one had spoken to him before the crew separated the sidewalk from the front steps of his building. Kolosky's son also testified that the trench in front of the building was approximately four feet wide, even though a witness for Underground Contractors testified that the crew made the trench approximately 12 inches wide.

We must defer to the jury to decide contested issues. Shastid v. Shue, 247 Minn. 314, 326, 77 N.W.2d 273, 281 (1956). "It was the prerogative and the duty of the jury to determine the conflicts in the evidence and it was their sole responsibility to pass upon the credibility of the witnesses." Id. at 329, 77 N.W.2d at 283 (affirming trial court's denial of JNOV).

From the evidence and reasonable inferences drawn from it, the jury could have determined that Underground Contractors was not careful in operating heavy equipment when breaking up the concrete in front of Kolosky's building, in digging the trench too wide near his building, and in removing several large stones that may have been crucial to lateral support for the foundation. Based on one expert's testimony, the jury could have found that vibrations from the equipment and construction were the direct cause of the damage to Kolosky's building. This evidence is sufficient to sustain the jury's verdict. The trial court did not err in denying JNOV.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.

[ ]1 The trial court dismissed the claims against U.S. West Communications after the close of evidence at trial.