This opinion will be unpublished and

may not be cited except as provided by

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




Sylvia Tengvall,



The Stuart Corporation,


Filed July 1, 1997


Short, Judge

Ramsey County District Court

File No. C8959500

Neut L. Strandemo, DeAnne L. Dulas, Strandemo & Sheridan, P.A., 2125 Upper 55th Street East, Inver Grove Heights, MN 55077 (for respondent)

Eric A. Nerness, Lind, Jensen & Sullivan, P.A., 1700 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.[*]


SHORT, Judge

After suffering extensive hip injuries from a fall in the parking lot of an apartment complex managed by The Stuart Corporation (corporation), Sylvia Tengvall brought suit against the corporation, alleging it was negligent in failing to properly light and mark the parking lot's concrete berms. At the conclusion of trial, the jury found Tengvall 25% negligent, the corporation 40% negligent, and Tengvall's daughter, a nonparty to the action, 35% negligent. Pursuant to the comparative fault statute, Minn. Stat. § 604.01, the trial court ordered the corporation to pay $57,266.45, an amount equal to the full amount of damages awarded, less Tengvall's percentage of fault.

The corporation moved for judgment notwithstanding the verdict, or, in the alternative, a new trial. In denying the motion, the trial court concluded: (1) Tengvall had carried her burden of proof as to whether the corporation, as manager, was a "possessor" of the property for premises liability purposes; (2) no expert testimony was necessary to explain the standard of care owed by the corporation; (3) no expert testimony was necessary for the jury to decide damages for future pain and suffering; and (4) it was proper to include Tengvall's daughter, as a nonparty, on the special verdict form. On appeal, the corporation argues the trial court abused its discretion in denying the motion. We affirm.


On appeal from a trial court's denial of judgment notwithstanding the verdict, this court must affirm if there is any competent evidence reasonably tending to support the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). The granting of a new trial rests largely within the discretion of the trial court, and reversal of such a decision is warranted only for a clear abuse of discretion. Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981). The corporation argues the trial court abused its discretion in refusing to grant a new trial because Tengvall failed to produce sufficient evidence to prove the corporation was a possessor of the property for purposes of premises liability. See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982) (requiring that plaintiff in negligence action prove, as element of claim, existence of duty on part of defendant); Dishington v. A.W. Kuettel & Sons, Inc., 255 Minn. 325, 330, 96 N.W.2d 684, 688 (1959) (noting that one in control of premises is under same duty as owner or possessor to maintain premises in safe condition); see also Restatement (Second) of Torts § 328E, cmt. a (1965) (providing fact-based approach for determination of possessor status). We disagree. Although Tengvall produced only one witness who stated she "believed" the corporation was the manager of the apartment complex, the corporation failed to rebut this testimony. Viewing the evidence in the light most favorable to Tengvall, the jury was entitled to draw reasonable inferences from the testimony and conclude that the corporation managed both the apartment complex and the adjacent parking lot, and was in control of the properties.

The corporation also argues the trial court erred in submitting the case to the jury absent expert testimony regarding the standard of care owed by a manager of property. However, where a plaintiff attributes acts or omissions to a defendant that are within the general knowledge and experience of lay persons, expert testimony is not necessary to establish the standard of care. Hestbeck v. Hennepin County, 297 Minn. 419, 424, 212 N.W.2d 361, 364 (1973); cf. Atwater Creamery Co. v. Western Nat'l Mut. Ins. Co., 366 N.W.2d 271, 279 (Minn. 1985) (requiring expert testimony to establish standard of care if it would be speculative for fact finder to decide negligence issue absent such testimony). Apartment managers are professionals in a field to which many lay persons have had exposure, and the public understands the general nature of an apartment manager's responsibilities. Thus, we cannot say the trial court erred in submitting the case to the jury absent expert testimony on this issue.

The corporation further argues the trial court erred in submitting to the jury, without expert testimony, the issue of damages relating to Tengvall's future pain and suffering. While expert testimony may be helpful in determining damages relating to future pain and suffering, such damages may be proved by showing that the plaintiff is not fully recovered at the time of trial. Edwards v. Engen, 288 Minn. 1, 4, 178 N.W.2d 731, 733 (1970). But cf. Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980) (holding there is no recovery for damages which are remote, speculative, or conjectural). The record demonstrates: (1) Tengvall had not fully recovered from her hip injury at the time of trial; (2) several of Tengvall's relatives and friends testified to the change in Tengvall's abilities and quality of life after she suffered the hip injury; and (3) witnesses also described Tengvall's subsequent heart attack and noted the distinctions between that ailment and the hip injury. Given these facts, we cannot say the trial court erred in permitting an award for Tengvall's future pain and suffering without expert testimony.

The corporation finally argues the trial court erred in submitting the issue of a nonparty's negligence to the jury on the special verdict form. However, when apportioning negligence, the jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they are parties to the lawsuit, so long as their identities are known. See Ripka v. Mehus, 390 N.W.2d 878, 881 (Minn. App. 1986) (quoting Lines v. Ryan, 272 N.W.2d 896, 902-03 (Minn. 1978), and recognizing that an identified party need only be a "party to the transaction," and not necessarily to the lawsuit, for the jury to consider the party's negligence); see also 1 Comparative Negligence Manual § 14:9 (3d ed., Clark Boardman Callaghan 1995) (explaining that nonparty inclusion rule exists because true apportionment cannot be achieved without taking into account all potential tortfeasors). Tengvall's daughter, though not a party to this lawsuit, was voluntarily guiding Tengvall through a dimly lit section of the parking lot when Tengvall fell and broke her hip. Because Tengvall's daughter may have contributed to the accident at issue, the trial court properly submitted the issue of her negligence to the jury. See Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818, 822 (1975) (holding actors who voluntarily assume a duty must exercise reasonable care). Therefore, the trial court did not abuse its discretion in denying the corporation's motion for judgment notwithstanding the verdict, or, in the alternative, a new trial.


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