This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1894

 

Elma Peters, et al.,

Respondents,

 

vs.

 

Silver Creek Traders, Inc.,

Appellant.

 

Filed August 14, 2007

Affirmed

Hudson, Judge

 

Crow Wing County District Court

File No. C2-04-1325

 

Patrick M. Krueger, Borden, Steinbauer, Krueger & Knudson, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, Minnesota 56401 (for respondents)

 

Michael D. LaFountaine, James S. McAlpine, Quinlivan & Hughes, P.A., 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, Minnesota 56302-1008 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Silver Creek Traders, Inc. (Silver Creek), challenges the district court’s denial of appellant’s pretrial motion for summary judgment and posttrial motions for JMOL, new trial, and remittitur.  Appellant argues that the landing where respondent was injured was open and obvious; that there was not substantial evidence at trial to support the jury’s finding of appellant’s negligence; that the district court erred by excluding evidence as hearsay; and that the damages awarded shocked the conscience.  Because the district court did not err by denying summary judgment, JMOL, new trial, or remittitur, we affirm.

FACTS

            On August 9, 2002, respondent Elma Peters (Peters) was shopping with family and friends at Silver Creek Traders (appellant) when she fell down a flight of stairs.  She ascended to the second floor of the store (the loft) by means of a front, open staircase.  The loft was filled with merchandise.  She and her companion, Hodach, weaved their way through the merchandise, walking across the loft to a corner where they had spotted some skis and ski poles.  Peters perceived the skis and poles to be displayed on the same level as the floor upon which she was standing, and across which she had just walked.  However, the skis and poles were actually located on a stairwell landing, which was seven inches below the floor upon which she stood. 

            Peters testified that she was walking towards the skis, approached the skis, and fell into the landing and down the stairs.  She did not know how she fell but testified that she did not trip or catch her foot on anything; Peters was looking at the skis and the next thing she knew, she was falling backwards.  Hodach, who was standing next to Peters before she fell, also testified that she did not see the drop-off.  Before she fell, Peters did not see the stairs and did not know that they existed.  Peters’s brother-in-law, Phillip Peters, testified that he was “darn near on top of [the stairs]” before he saw them, and they surprised him.  He did not recall seeing the drop-off to the landing at all.  There were no signs to warn or direct customers out of the area and there was no warning tape on the floor to mark the drop-off. 

Appellant displayed the skis in a stairwell landing of the store, which was seven inches lower than the display floor.  The store did not usually display merchandise in this area.  Normally, customer access to this landing was purposely blocked by merchandise.  At trial, Ivan Russell, professional engineer, registered safety professional, and former Director of Minnesota OSHA, testified that the difference in height between the display floor and the floor of the landing (seven inches) was not open and obvious and constituted a significant safety hazard.  Russell testified that people cannot recognize a one-step change in elevation of a walking surface that is less than 12 inches.  “Any change in elevation less than 12 inches needs to be done by a ramp instead of a step, and the reason is because people just cannot recognize that that one step is there[.] . . .  [I]t’s a significant safety hazard.”  Russell also identified the placement of the merchandise as an additional safety hazard.

Another expert, Dr. Richard Patten, a human factors expert, testified that it would have been difficult for Peters (or anybody) to see the drop-off because her eyes were still adjusting to the dim lighting (“dark adaptation”); her attention was diverted to displayed merchandise; the store had done nothing to make one aware of this drop-off through contrast or warning; and the drop-off would not have been within Peters’s peripheral vision. 

            Peters was transported by ambulance to the hospital.  As a result of Peters’s fall down the stairs, she suffered fractures of both arms, a fractured jaw, and fractured cervical vertebrae.  She was then transferred to a neurosurgeon.  A halo fixation device was applied to Peters’s head, and she was placed into a vest to house the halo; she also had casts applied to both wrists.  Later it was discovered that her jaw had been broken, and her jaw had to be wired shut.  She was unable to care for herself, and her husband took care of her personal needs at all times: he bathed her, washed her hair, cleaned the pins on the halo device twice a day, trimmed her hair around the pin sites, replaced the rubber bands on the wires on her teeth twice a day, cooked for her, and so on. 

            In December 2002, the halo device was removed, and Peters was placed in a soft cervical collar.  She wore the soft collar until January 2003, when she saw her doctor again, who described Peters at the time as having an altered level of consciousness.  An MRI was performed, which revealed that Peters had developed brain abscesses at each of the four sites where the pins were inserted into her skull in order to secure the halo fixation device.  Peters had surgery during which her skull was opened in order to remove portions of dead bone and to drain pus from her brain.  On January 22, 2003, Peters again underwent surgery in order to remove more pus from her brain.  By April 25, 2003, the abscesses had healed. 

            Peters’s recovery from the surgery involved re-learning how to read, do math, and spell; she also had to re-learn how to tell time, decipher colors, dress, and feed herself.  After three weeks, Peters was sent home with intravenous antibiotic therapy, which her husband administered through a catheter in her chest for six weeks, three times per day.  It took Peters two years to recover from her injuries. 

            Appellant moved for summary judgment, arguing that the landing was open and obvious.  The district court denied appellant’s motion, finding that Peters’s deposition testimony established that she could not see the drop-off and thus a question of fact existed as to whether this drop-off was open and obvious. 

            After a trial, the jury found that appellant was 100% responsible for Peters’s injuries.  The jury awarded respondents damages in the amount of $177,140.35 for past medical expenses and $266,656 for pain, suffering, disability, and emotional distress up to the time of trial; her husband was awarded $65,328 for loss of Peters’s services and companionship to the date of the verdict.  Appellant filed posttrial motions for judgment as a matter of law (JMOL), remittitur, or in the alternative, a new trial.  The district court order of August 11, 2006, denied appellant’s posttrial motions on the basis that sufficient evidence was offered at trial to support the jury’s finding that appellant’s negligence was the proximate cause of respondent’s injuries, and the damages awarded were based on the extent of the injuries suffered and did not shock the conscience. 

            This appeal follows. 

D E C I S I O N

I

            Appellant argues that the district court erred by denying its motion for summary judgment, arguing that as a matter of law appellant is not responsible for respondents’ alleged injuries because the landing area and staircase are open and obvious.  In an appeal from summary judgment, this court will examine whether there are genuine issues of material fact and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  On appeal, an appellate court views the record in the light most favorable to the nonmoving party and accepts as true the factual allegations of that party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

Summary judgment is appropriate when a party fails to make a showing sufficient to establish the existence of an element essential to the party’s case.  Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).  The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists.  Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).

“[I]t is generally recognized that issues of negligence and contributory negligence are questions of fact and are not ordinarily susceptible of summary adjudication either for or against the claimant,” but “it is not to be overlooked that in proper cases summary judgment may be entered where the material facts are undisputed and as a matter of law compel only one conclusion.”  Sauter v. Sauter, 244 Minn. 482, 486, 70 N.W.2d 351, 354 (1955).  “[W]hether a condition presents a known or obvious danger is a question of fact.”  Olmanson v. LeSueur County, 693 N.W.2d 876, 881 (Minn. 2005).  Here, the facts were not undisputed because the parties did not agree on the factual issue of whether the landing area and stairway were open and obvious. 

            In order to establish a prima facie negligence claim, respondent Peters was required to show the following: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  A land possessor who holds land open to the public has a duty to use reasonable care for the safety of entrants.  Donaldson v. Young Women’s Christian Ass’n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995).  “Reasonable care includes the duty to inspect and repair the premises and, at a minimum, to warn persons using the premises of unreasonable risks of harm.”  Sullivan v. Farmers & Merchants State Bank of New Ulm, 398 N.W.2d 592, 594–95 (Minn. App. 1986), review denied (Minn. Mar. 13, 1987).  An entrant onto the property also has a duty of reasonable care.  Louis, 636 N.W.2d at 319. 

A land possessor, however, does not owe a duty to an entrant when the danger of a condition is known and obvious to the entrant.  Baber v. Dill, 531 N.W.2d 493, 495–96 (Minn. 1995).  But the broad exception to this general principle is that the possessor is not relieved of a duty if he or she should anticipate the harm despite the entrant’s knowledge or the obviousness of the danger.  Id.

Generally, “whether a condition presents a known or obvious danger is a question of fact.”  Olmanson, 693 N.W.2d at 881.  The word “known” denotes that the injured party not only knew of the existence of the condition but also appreciated the danger involved.  Louis, 636 N.W.2d at 321 (quoting Restatement (Second) of Torts § 343A, cmt. b (1965)).  The test for what constitutes an obvious danger “is not whether the injured party actually saw the danger, but whether it was in fact visible.”  Id.  “The difference between open and obvious dangerous . . . conditions for which the possessor should anticipate harm and those . . . conditions for which the possessor should not anticipate harm because they are so open and obvious is a fine one.”  Baber, 531 N.W.2d at 496. 

            In its order of April 4, 2005, denying appellant’s motion for summary judgment, the district court determined that a question of fact existed as to whether the landing was open and obvious: “The Court concludes that the [respondents] have provided sufficient evidence to show that the landing at the top of the stairs may not have been open and obvious and, therefore, summary judgment is denied.”  The district court based its conclusion on the following reasoning:

[Appellant] uses [respondent Peters’s] testimony that there was nothing hiding or covering up the fact that there was a difference in height between the floor and landing area to show that the danger was open and obvious.  [Respondent Peters], however, also states that she thought the floor and the landing looked like one level from her position before the fall.  This statement in addition to evidence that the lighting may have been dim and the area around the landing filled with clearance merchandise, is sufficient to raise a question of fact as to whether the actual landing was open and obvious.  [Respondents] have provided evidence from which a jury could conclude that the landing was not plainly visible, and therefore, not open and obvious.

 

But appellant argues that Peters’s deposition testimony clearly indicated that the area was open and obvious.  Appellant asserts that during Peters’s deposition, “she clearly admits that nothing was concealing the landing area or her view of the stairs.”  Appellant notes that “Peters merely asserts that the floor and landing area seemed like one level.”  But appellant oversimplifies and misconstrues Peters’s testimony.  First, what appellant characterizes as Peters’s “admission” that she could see the change in level between the display floor and the landing were statements made by Peters after observing photographs of the landing/stairwell area taken from an elevated vantage point that was not available to her as she walked across the loft the day of her fall.  While viewing these photographs, Peters did state that she could see that there is a difference in height between the two areas.  But this testimony does not constitute an “admission” because it does not show that Peters (or anyone else) could perceive this height difference at the time of the accident, under the conditions that day.  Moreover, appellant’s argument completely discounts factors such as inadequate lighting on the stairway and the arrangement of merchandise that day. 

Second, Peters was consistent in her deposition testimony in which she asserted that she could not see a difference in the level of the floor.  She stated several times that it was not apparent that there was a drop-off; that the floor appeared to be level; and that the skis appeared to be displayed on the same level floor that she was crossing.  Peters also stated in her deposition that the area was “very dim” and that there was merchandise all over the place. 

Appellant further argues that it is clear from Peters’s deposition that the reason she fell down the stairs was due to her own negligence; “she was talking with a female companion and not paying attention to where she was going.”  Appellant is likely referring to the following testimony by Peters:

Q:  . . . was there anything you can identify for me that was hiding the fact or covering up the fact that there was a difference in height from the main floor of the second floor to this landing?

 

A:  Actually hiding the landing, you mean?

 

Q:  Exactly.

 

A:  Not that I recall, no, not that I recall, but we were busy talking and, you know women—

 

                        Mr. Krueger:  You have answered the question.

 

But even if Peters’s statement was as conclusive as appellant asserts, at best, the statement suggests that Peters may have been contributorily negligent, not that appellant was not negligent.  As even appellant appears to admit in its brief, the statement is irrelevant to the determination of whether the area was open and obvious: “Even if there is a dispute over the point that Peters was not paying attention, engaged in conversation and not using reasonable care for her own safety, this did not prohibit summary judgment.  Rather, the only finding necessary is that the stairwell and landing area are open and obvious . . . .”  The district court properly denied appellant’s motion for summary judgment because in viewing the evidence in the light most favorable to the respondents, material fact issues existed regarding whether the landing/stairwell area was open and obvious.

II

            Appellant next argues that there was no evidence at trial that any conduct attributable to appellant was negligent or that it was the legal cause of respondents’ injuries.  Therefore, appellant argues, the district court erred when it denied appellant’s motion for judgment as a matter of law (JMOL).  Judgment as a matter of law is appropriate when a party has been fully heard on an issue and no legally sufficient evidentiary basis would allow a jury to find in favor of the party on the issue.  Minn. R. Civ. P. 50.01(a).  When the district court denies a motion for judgment as a matter of law, we must affirm the denial if the record contains any competent evidence that reasonably tends to support the verdict.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Weviewthe evidence in the light most favorable to the jury verdict and will not set aside a verdict “[u]nless the evidence is practically conclusive against the verdict.”  Id. (quotation omitted).

To support a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty, the defendant breached this duty, an injury occurred, and the breach was the proximate cause of the plaintiff’s injury.  State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 887 (Minn. 2006).  To prevail in a negligence claim, a plaintiff has the burden of proving that defendant caused the dangerous condition or that it knew or should have known that the condition existed.  Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000).  Appellant challenges the jury determination that it was negligent.  Appellant argues that respondents did not prove that Peters’s fall was the result of its negligence, because respondents failed to establish that a dangerous condition existed, that Silver Creek knew or had constructive knowledge of the condition, and that this condition was the cause of respondents’ injuries.  We disagree.  The record clearly supports the jury’s determination that appellant was negligent.

Whether a legal duty exists is generally a question of law for the court to determine.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  A land possessor has a duty to use reasonable care for the safety of entrants invited onto the property.  Id.  Both the entrant and the land possessor have a duty of reasonable care.  Id. at 319.  A land possessor, however, does not owe a duty to an entrant when the danger of an activity or condition is known and obvious to the entrant.  Baber v. Dill, 531 N.W.2d 493, 495–96 (Minn. 1995). 

            Here, in its order denying appellant’s motion for JMOL, the district court accurately explained that

[s]ubstantial evidence was offered at trial to support a jury finding of [appellant’s] negligence, including expert testimony that: the difference in height between the floors was not open and obvious, and constituted a dangerous condition; that the applicable building code required access from the display floor to the landing be by ramp rather than step; and that the drop off would not have been in Elma Peters’ field of vision.  Evidence was also submitted that the [appellant] negligently arranged the merchandise in a manner that caused Elma Peters to fall.  The Court finds there was sufficient evidence of both [appellant’s] negligence and that the negligence was the proximate cause of Elma Peters’ injuries submitted at trial which reasonably tends to support the jury verdict.

 

 

Because there was competent evidence reasonably tending to support the jury’s verdict, the district court did not err by denying appellant’s motion for JMOL.  See Omnetics, Inc. v. Radiant Tech. Corp., 440 N.W.2d 177, 183 (Minn. App. 1989) (holding that JMOL is inappropriate where there is “any competent evidence reasonably tending to support the verdict”).[1]

III

            Appellant argues that the district court erred by denying its motion for a new trial because (1) the district court committed reversible evidentiary error when it censored the accident report submitted to the jury; and (2) the evidence does not support the jury verdict.[2]  We disagree. 

The district court may grant a new trial if any of the grounds enumerated in rule 59.01 of the Minnesota Rules of Civil Procedure exist.  We review a district court’s decision on a motion for a new trial for an abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  On appeal from denial of a new-trial motion, we review the evidence in the light most favorable to the jury verdict and will not set aside the verdict “unless it is manifestly and palpably contrary to the evidence viewed as a whole.”  Navarre v. S. Wash. County Schs., 652 N.W.2d 9, 21 (Minn. 2002) (quotation omitted).

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45–46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted); see also Blatz v. Allina Health Sys., 622 N.W.2d 376, 388 (Minn. App. 2001) (“Reversible evidentiary error must be both an abuse of discretion and prejudicial.”).

            Appellant argues that the district court “committed an evidentiary error of law when it censored portions of an accident report prepared by Silver Creek manager Richards immediately after Peters’[s] fall.”  Appellant contends that the censored statement was not hearsay within hearsay and should have been admitted.  The “censored” statement from the report reads as follows: “[w]as heard saying she was looking at pictures on [the] wall [and] backed up [and the] next thing she was falling.”

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Minn. R. Evid. 801(c).  Although generally inadmissible, hearsay statements may be admissible under one of several exceptions to the general rule.  Minn. R. Evid. 802, 803, 804.  “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule. . . .”  Minn. R. Evid. 805. 

At trial, the district court held that the accident report was admissible as a “record of regularly conducted business activity” but that the cited passage in the report was hearsay and not admissible under any exception to the hearsay rule.  See Minn. R. Evid. 803(6) (records-of-regularly-conducted-activity exception).  The district court redacted the hearsay statement, reasoning that “[t]here was no evidence as to who made the statement, whether it was made under the excitement of the accident, or whether it was a self-serving statement by an employee of the store.” 

Appellant contends that there are several exceptions to the hearsay rule that would have permitted admission of the passage, which appellant argues “is essential to Silver Creek’s defense.” 

Excited Utterance

First appellant argues that the passage qualifies as an “excited utterance.”  Under the rules of evidence, a statement is not excluded by the hearsay rule, even though the declarant is unavailable as a witness, if the statement was an excited utterance.  Minn. R. Evid. 803(2).  An excited utterance is defined as follows: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  Id.  The Committee Comments require the following three requirements to be met in order to qualify as an excited utterance: “(1) there must be a startling event or condition; (2) the statement must relate to the startling event or condition; and (3) the declarant must be under a sufficient aura of excitement caused by the event or condition to insure the trustworthiness of the statement.”  Id., 1989 comm. cmt. 

Here, the startling event or condition was Peters’s fall down the stairs.  The cited passage relates to the startling event because it describes what Peters allegedly was doing before she fell.  Thus, the first two requirements are satisfied.  But the third requirement is impossible to satisfy in this case because the identity of the declarant is unknown, and therefore it cannot be determined whether the declarant was under the requisite aura of excitement caused by the event to ensure the requisite trustworthiness.  The district court correctly reasoned that “[t]here was no evidence as to who made the statement, whether it was made under the excitement of the accident, or whether it was a self-serving statement by an employee of the store.”  We conclude that the district court correctly determined that the redacted passage does not satisfy the excited-utterance exception to the hearsay rule.

Admission of a Party-Opponent

            Appellant next argues that the redacted passage constituted an admission of a party-opponent.  An admission by a party-opponent is not hearsay.  Minn. R. Evid. 801(d)(2).  But as the district court correctly observed, the identity of the declarant was unknown.  Thus, it is not clear whether the statement in the passage was made by a party-opponent.  Consequently, the trustworthiness of the statement could not be evaluated. 

Residual Exception

            Finally, appellant argues that the district court should have admitted the passage under the residual exception to the hearsay rule.  The residual exception is set forth in Minn. R. Evid. 803(24) (2004) and “allows hearsay to be admitted in cases in which the declarant testifies if certain conditions are satisfied, the key one being that there are circumstantial guarantees of trustworthiness equivalent to those surrounding statements fitting within the 23 specific exceptions created by Rule 803.”  State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).  The following factors favor admissibility under Ortlepp: (1) the declarant was present, so no confrontation issue arose; (2) the declarant admitted making the statement; and (3) the statement was consistent with all other evidence presented by the state.  Id.; see also State v. Soukup, 376 N.W.2d 498, 501 (Minn. App. 1985) (following Ortlepp), review denied (Minn. Dec. 30, 1985).  Additional factors that may be considered include whether the declarant had a motive for lying and the consistency among multiple out-of-court statements by a declarant.  State v. Robinson, 718 N.W.2d 400, 410 (Minn. 2006).

            Here, the declarant was not present at trial and thus did not admit to making the statement.  Accordingly, the residual exception to the hearsay rule does not apply.

Prejudice      

Furthermore, even if appellant could demonstrate that the redacted passage should have been admitted as an exception to the hearsay rule or as nonhearsay, appellant failed to demonstrate that it was prejudiced by the exclusion of the passage.  See Blatz, 622 N.W.2d at 388 (“Reversible evidentiary error must be both an abuse of discretion and prejudicial.”).  Appellant asserts that the redacted passage “is essential to Silver Creek’s defense,” but appellant failed to explain how the exclusion of the passage (if it was error) was prejudicial.  See Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 206, 203 N.W.2d 841, 845 (1973) (noting that distracting circumstances are factors that jury may consider in excusing plaintiff who failed to watch where he was stepping).  The district court did not abuse its discretion by denying appellant’s motion for a new trial.

IV

            Finally, appellant contends that the district court erred by denying its motion for remittitur, arguing that the jury’s award “was excessive in light of her contributory negligence.”  An award of damages is excessive if it exceeds an adequate award so greatly that it can be accounted for only as the result of passion and prejudice.  Dallum v. Farmers Union Cent. Exch., Inc., 462 N.W. 2d 608, 614 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991).  This court will not reverse a grant or denial of remittitur unless the district court clearly abused its discretion.  Myers v. Hearth Tech., Inc., 621 N.W.2d 787, 792 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  This court reviews the evidence in the light most favorable to the judgment of the district court and will not reverse that judgment merely because it views the evidence differently.  Rogers v. Moore, 603 N.W. 2d 650, 656 (Minn. 1999).

            The jury found that appellant was 100% negligent and that Peters was 0% negligent.  Thus, appellant’s argument that the award to Peters “was excessive in light of her contributory negligence” is not supported by the jury’s findings that Peters was not contributorily negligent at all.  In the memorandum accompanying its denial of remittitur, the district court found that “the damages awarded by the Court as determined by the jury are supported by the evidence.”  The district court explained that “[d]ue to the extent of the injuries to Elma Peters, the jury award does not ‘shock the conscience.’”  See DeWitt v. Schuhbauer, 287 Minn. 279, 286, 177 N.W.2d 790, 795 (1970) (stating that a jury award may be set aside by the court if the amount awarded “shocks the conscience”).  We agree.

            Because the district court properly denied appellant’s motions for summary judgment, JMOL, new trial, and remittitur, we affirm. 

Affirmed.