Olmsted County District Court

File No. C3943104

Katherine A. McBride, Michael Hutchens, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Eric D. Larson, Peter C. Sandberg, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Marquette Bank Building, P.O. Box 549, Rochester, MN 55903-0549 (for respondent)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Holtan, Judge.

Appellant challenges the trial court's denial of judgment notwithstanding the verdict or, in the alternative, a new trial in this personal injury contribution case. Because we find no error by the trial court, we affirm.

Walter Bertschinger, d/b/a Bertschinger Masonry, was hired by Bowman to complete the inside work on the addition. Approximately one week after Bertschinger began the work, Gary Polikowsky, Bertschinger's colleague, came to the site to take Bertschinger to lunch. When Polikowsky arrived, he asked to look at the work Bertschinger had done on the addition. To get into the building, the two had to walk on or step over a wooden plank that Bertschinger had placed over the steps earlier that morning. The plank was to assist the hauling, by wheelbarrow, of materials and debris in and out of the addition. As Bertschinger stepped on the plank and up the remaining stairs, he told Polikowsky to watch his head. At this point, Polikowsky stumbled and fell, injuring himself.

Polikowsky filed suit against Bertschinger and Bowman. The two defendants filed cross-claims for contribution and indemnity. Polikowsky settled with the defendants for $37,500 each, but the cross-claims proceeded to trial. A jury returned a special verdict finding that Bowman was 70% at fault and Polikowsky was 30% at fault. No fault was attributed to Bertschinger. Bowman appeals.

In this case, Bowman argues that the trial court erred by denying the motion for JNOV. Bowman lists the following three reasons: (1) Bertschinger presented no evidence that Bowman breached its duty to Polikowsky as a possessor of land, (2) Bertschinger presented no evidence that Bowman breached its duty to Polikowsky as general contractor of the construction project, and (3) Bertschinger presented no evidence that Bowman's decision not to install a railing breached a duty owed to Polikowsky.

The issues that Bowman presents on appeal are misleading. Bowman's argument gives the impression that Bertschinger has to disprove all three of these factors or JNOV is warranted. This is not the case. The trial court instructed the jury regarding a negligence claim and the duty owed by a possessor of land to an entrant on the premises. The jury, by special verdict, found that Bowman had breached that duty. There was no need to find that Bowman breached a duty as a general contractor or by not installing the railing.

It is undisputed that Bowman possessed the land on which Polikowsky fell. Therefore, the trial court instructed the jury as follows:

A possessor of land has a duty to use reasonable care to inspect and repair his premises, warn an entrant who comes upon his premises, and to protect the entrant from an unreasonable risk of harm caused by the condition of the premises while he is on the premises.

In determining reasonable care of the landowner, the following factors may be considered:

1. The purpose for which the entrant entered the premises.

2. The circumstances under which the entrant entered the premises.

3. The use for which the premises is put or expected to be put.

4. The foreseeability or possibility of harm.

The nature and character of reasonable care depend upon the circumstances of the individual case. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 648 (1972). A possessor of land must have actual or constructive notice of a dangerous condition before liability will be imposed. Otto v. City of St. Paul, 460 N.W.2d 359, 362 (Minn. App. 1990). The circumstances of which the actor has knowledge or notice are determinative of whether he was negligent. Id.

Here, Bowman argues that there was no evidence supporting a jury verdict that it had knowledge of the danger. Bowman supports this argument by stating that it did not retain control of the premises and, therefore, was not aware of the daily activity at the site. This argument is unpersuasive. Bowman hired Bertschinger to complete inside work on an addition to Bowman's building. On the city building permit, Bowman listed itself as the general and building contractor. The work was being done at Bowman's own building. This was not a situation where a contractor subcontracted work at another site and routinely checked on the project from time to time. Anyone working at Bowman merely had to step outside of the building to check on Bertschinger's work site. Bertschinger placed the plank down in the morning and Polikowsky arrived at noon. It is not unreasonable for a jury to find that sufficient time had passed for Bowman to gain knowledge (whether actual or constructive) of the danger.

Bowman also argues that it, as general contractor, did not retain control of the project and thus cannot be found liable. An employer who retains control or some measure of control over a project may be liable in negligence for failing to exercise reasonably careful supervision of the job site. See Thill v. Modern Erecting Co., 272 Minn 217, 136 N.W.2d 677 (1965). In this case, the evidence shows that Bowman had control over the time, nature, and design of the construction; scheduling; disposal of debris; and control over designation of construction zones and restriction of access. This evidence was sufficient for a jury to find that Bowman retained "some measure of control" and thus was liable for Polikowsky's injuries.

Bowman further claims that OSHA regulations do not require a railing to be placed at the site until the work is completed. Notwithstanding this regulation, Bowman has a duty as possessor of land to use reasonable care. The fact that a railing was not required does not relieve Bowman of liability for a dangerous condition that caused injury. Bowman also contends that OSHA does not apply to nonemployees on site. Polikowsky was a nonemployee; Bowman owed no duty.[1] Whether Bowman adhered to OSHA regulations and whether Polikowsky was an employee under OSHA definitions does not relieve Bowman from his duty to Polikowsky as an entrant. Adherence to OSHA regulations merely removes Bertschinger's ability to claim that Bowman was negligent per se. See Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 558 (Minn. 1977). Viewing the evidence in the light most favorable to the verdict, denial of the motion for JNOV was not error.

Polikowsky testified that he did not see what he believed to be a pebble or bit of concrete that was on the plank. Bertschinger testified that he did not see anything on the plank. He and some of the other workers looked for whatever it was that Polikowsky said he tripped on and found nothing. The amount of debris and its location were fact questions to be decided by the jury. Whether or not Polikowsky tripped on a bit of concrete rock or a pebble, whether or not this was a dangerous condition, and whether or not it was open and obvious were questions for the jury. The trial court was in the best position to determine the credibility of the witnesses and whether their testimony could sustain the verdict. See Minn. R. Civ. P. 52.01 (due regard shall be given fact-finder to judge credibility of witnesses). The evidence is sufficient to support a verdict on these issues.

Affirmed.

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

[ ]¹ We note that at oral argument respondent conceded that OSHA was inapplicable.