Katherine A. McBride, Mark J. Heley, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 S. Sixth St., Minneapolis, MN 55402 (for respondents Hagemeister and Mack Architects, et al.)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Thoreen, Judge.[*]

Appellant seeks review of the trial court's decisions regarding jury instructions, admission of evidence, its denial of appellant's judgment notwithstanding the verdict (JNOV) motion, and its granting of respondent's motion for summary judgment. Because we see no abuse of the trial court's discretion, we affirm.

On April 4, 1994, St. Cloud city officials denied Landwehr's application for a demolition permit on the grounds that a professional had not surveyed the bracing and shoring requirements at the site. Appellant subsequently asked Murray Mack of H&M to visit the site and assess what bracing and shoring would be necessary for the project. After visiting the site, Mack sent letters to appellant and to St. Cloud officials, giving them minimum recommendations and stating that appellant or its contractor would be responsible for maintaining all necessary bracing and shoring.

Based on Mack's letter, St. Cloud officials issued a demolition permit with the express condition that proper bracing and shoring be installed. Joe Braun, a St. Cloud official, called appellant and explained the permit requirements over the phone. Later that day, a Landwehr employee picked up the permit and, without reading it, delivered it to the demolition site. No shoring or bracing was installed at the site.

On April 6, 1994, Landwehr employee Kenneth Bergerson was killed when a 50-foot brick wall fell on him while he was directing the crane that was removing the roof. Occupational Safety and Health Administration (OSHA) officials investigated the accident and concluded:

Precautions should have been taken to assure the integrity of all the floors and walls of the building. If the appropriate bracing and shoring had been in place, the brick wall might not have fallen where the victim was standing. The unbraced wall was the direct cause of the victim's death. The victim's misjudgment, to stand near the wall and signal, was a contributing factor. The roof section being picked was not completely cut free from another section. [Landwehr e]mployee error, in not assuring that the two sections were cut free, may have been another contributing factor.

Respondent Ellen Bergerson, widow of decedent, Kenneth Bergerson, brought a wrongful death action against appellant, H&M, and Larson Engineering. All defendants moved for summary judgment; the court granted the motions of H&M and Larson Engineering. The case proceeded to trial with appellant as the sole defendant.

In a special verdict, the jury found appellant 35% liable, Landwehr 55% liable,[2] and Bergerson 10% liable. Pursuant to joint and several liability, the trial court ordered appellant to pay 90% of the $950,000 damages stipulated to by the parties during the trial.

D E C I S I O N

I. Jury Instructions

Trial courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). An appellate court will not reverse a trial court's decision unless the instructions constituted an abuse of discretion. See id.

Appellant's duty to warn victim

Using Jury Instruction Guide Nos. 330 and 332, the trial court instructed the jury that a landowner must use reasonable care to warn an entrant of any unreasonable risk of harm caused by conditions on its premises. Appellant contends that it was prejudiced when the trial court denied its request to instruct the jury according to Baber v. Dill, 531

N.W.2d 493, 496 (Minn. 1995) (holding that a landowner has no duty to warn or make safe known and obvious conditions that an invitee assisted in creating).

In Baber, a worker was injured when he slipped off the retaining wall he was constructing and impaled himself on rods that protruded from it. The supreme court held that when a worker assists in creating the dangerous condition that injures him, the danger is obvious and no warning is required. Id. Relying on Baber, appellant contends that because Bergerson participated extensively in the demolition of the roof, he assisted in creating the hazard that killed him, and appellant had no duty to warn. We disagree.

Bergerson's involvement in creating the condition that caused his death was dramatically dissimilar to that of the injured worker in Baber who substantially contributed to constructing the wall and placing the rods and who overheard a conversation between his brother and the owner of the wall about the advantages and disadvantages of adding to the wall, which required leaving the protruding rods exposed. Id. at 495. The injured worker also testified that he "considered the protruding rods to be dangerous" and "knew the mud-caked wall was slippery." Id.

In the present case, appellant and Bergerson's employer, Landwehr, had actual or constructive knowledge of the unmet bracing and shoring requirements, but failed to disclose them to Bergerson. Had this bracing and shoring been in place, or had Bergerson been notified of the permit requirements, the accident might have been avoided.

As the supreme court recently noted, the "crucial qualifier" to the principle adopted in Baber is that "even if a danger is known and obvious, landowners may still be liable to their invitees if they `should anticipate the harm despite such knowledge or obviousness.'" Sutherland v. Barton, ___ N.W.2d ___, ___, No. C7-96-2018, slip op. at 12 (Minn. Oct. 23, 1997) (citation omitted). These facts not only indicate that Bergerson did not have the same level of involvement as the worker in Baber, but that appellant should have anticipated the harm based on the actual knowledge of the bracing and shoring requirements. In either case, the Baber instruction is inappropriate according to the facts.

Mindful that the jury did attribute 55% of the causal negligence to Bergerson's employer, we believe the thrust of appellant's argument on the issue of whether an invitee assisted in creating a condition is, in effect, an attempt to shift causal negligence from the employer, Landwehr, to the victim, Bergerson. The record provides no basis for such reallocation. Bergerson's knowledge of the dangerous situation is not analogous to that of the injured worker in Baber. Refusal to instruct the jury according to Baber was not an abuse of discretion.

b. OSHA regulations

Appellant argues that because it did not employ Bergerson, the trial court erred by instructing the jury that appellant owed Bergerson a duty to comply with OSHA regulations, citing Behlke v. Conwed Corp., 474 N.W.2d 351, 359 (Minn. App. 1991) (a victim who is not an employee of a contractor who violated OSHA standards is not in the protected class of persons contemplated by the statute), review denied (Minn. Oct. 11, 1991).

Behlke, however, has been distinguished by O'Neil v. Wells Concrete Products, Co., 477 N.W.2d 534, 537 (Minn. App. 1991) (holding that OSHA protects all people working on construction sites, not just the employees of a violating contractor), review denied (Minn. Jan. 17, 1992). In O'Neil, the court held that the conflicting language in Behlke was dicta and that the primary purpose of OSHA is to protect the safety of all workers on a construction site, not just the employees of a particular contractor. Id. at 537. O'Neil demonstrates that the trial court did not err in instructing the jury that OSHA regulations applied to appellant.

c. Restatement (Second) of Torts §§ 410 and 413

Appellant contends that the court erred in instructing the jury according to sections 410 and 413 of Restatement (Second) of Torts.[3] Appellant relies on Conover v. NSP, 313 N.W.2d 397, 404 (Minn. 1981) (holding that the term "others" in Restatement §§ 416, 424, 427 and 428 does not include the employees of independent contractors) to argue that because Bergerson was the employee of an independent contractor, he was not a part of the group to be protected by Chapter 15 of the Restatement. We disagree.

The employer of an independent contractor must remain responsible for its own direct negligence whether that negligence injures an unsuspecting bystander or an employee of an independent contractor. Sutherland, slip op. at 8 ("a company may be directly liable for its own personal negligence that causes injury to an independent contractor's employees") (citing Conover, 313 N.W.2d at 401). The independent contractor relationship was not established to shield the employer from direct liability for its own negligence.

To agree with appellant's argument, we believe, would require us to hold that Chapter 15 could never be used to hold the employer of an independent contractor liable for its direct negligence when that negligence injures one of the contractor's employees. This would be in direct contravention with current case law. See Sutherland, slip op. at 9 (holding that, upon a demonstration of the requisite level of control, the employer of an independent contractor can be held directly liable for injuries to the contractor's employees according to Restatement § 414). Appellant may be held responsible for its own direct negligence according to sections 410 and 413.

As a result of appellant's direct involvement in demolition of the roof, sections 410 and 413 apply to this case. Appellant had knowledge of the requirements for bracing and shoring, but failed to assure disclosure of those requirements before work began.[4] As a result, appellant could be liable for negligently directing the independent contractor to remove the roof. Instructing the jury according to section 410 was not an abuse of discretion.

Section 413, comment b, indicates that a peculiar risk of harm is one that arises out of a special danger that requires special precautions.[5]

The fact that the roof was unstable without bracing and shoring meant that a peculiar risk of harm existed that required special precautions. Failure to inform the independent contractor of this peculiar risk of harm could be considered failure to exercise reasonable care. The court did not abuse its discretion by giving this instruction.[6]

II. Evidentiary Issues

The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citation omitted).

a. Character evidence

The trial court permitted respondent to introduce limited testimony that Bergerson was a generally cautious and safe person in order to prove life expectancy as an element of damages. The court specifically disallowed as inadmissible any use of this testimony to show that Bergerson acted in conformity with these character traits. Appellant argues that the trial court's admission of this evidence violated Minn. R. Evid. 404(a). We disagree.

Admitting character evidence is proper when it is done to prove an element of the damage claim, such as life expectancy. See Holmberg v. Murphy, 167 Minn. 232, 233-34, 208 N.W. 808, 809 (1926) (evidence of victim's recent drunk driving charge admissible for purposes of calculating family's expected damages).

The trial court admitted the character evidence exclusively to prove life expectancy as an element of damage calculation, not to show that Bergerson acted carefully before his death. Admitting the evidence for this limited purpose was proper.

Appellant contends further that the character evidence was not sufficiently limited because appellant improperly observed during closing argument:

You heard just about every witness who gave an opinion concerning Kenny Bergerson's safety consciousness. * * * [C]onsider what you've heard about Kenny Bergerson and ask yourself whether he would have put not only himself at risk but his crew members at risk. I don't think the evidence shows that he was the type of man who would. I don't think there are any facts to suggest he did that day.

We agree that this statement by respondent's counsel was improper; however, appellant failed to object at the time of the statement and never requested that the court give a further limiting instruction to the jury. When evidence is admissible for one purpose, but not for another, the trial court, "upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Minn. R. Evid. 105 (emphasis added). The rule does not require that the trial court give an instruction on its own motion.

Further, the reference to character in closing argument does not appear to have prejudiced the jury. The jury assignment of 10% of the total causal negligence to Bergerson indicates that the jury did not consider him to be so safety conscious as to relieve him of all responsibility.[7]

b. Test cuts

Before Landwehr began removing the roof, appellant's employees made some initial cuts of the rafters in the building to test the saws that would be used. At trial, appellant filed a motion in limine requesting that the trial court exclude any evidence of these cuts because they did not play a role in Bergerson's death. Respondent stated that because it could not prove a connection between the cuts and Bergerson's death, it did not intend to explore the issue. As a result, appellant dropped its motion in limine and the court did not rule on the issue.

Appellant now contends that it was prejudiced when respondent's expert referred to these test cuts during cross-examination and indicated that they may have played a role in the accident. On re-direct examination, respondent inquired into this response, but the expert was interrupted before a full explanation of the origin of the cuts could be given. The trial court denied appellant's motion to strike this testimony explaining that the cuts may have resulted in danger to the safety of the workers.

Even if the trial court erred by permitting the testimony to remain on the record, it is difficult for us to see how the testimony prejudiced appellant. There is no reference anywhere in the expert's testimony identifying appellant as the source of the initial cuts.[8] Without identifying appellant as the source, it would be impossible for the jury to make this connection on its own. Appellant was not prejudiced by admission of the testimony.

c. Landwehr's safety manual

Appellant contends that it was prejudiced when the trial court refused to admit Landwehr's safety manual into evidence because the manual described the safety and inspection duties of a Landwehr foreman.

Without concluding whether Bergerson was or was not the foreman on the job, the court allowed appellant's counsel to read into the record applicable provisions of the manual during the examination of a Landwehr personnel manager. The court denied appellant's request to admit the entire manual because such a large, general safety manual would take the jury "too far afield." This ruling was not an abuse of discretion.

III. Did the trial court properly grant H&M's motion for summary judgment?[9]

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

Appellant argues that because the role that H&M played in creating the dangerous condition was unclear, there existed genuine issues of material fact that prohibited the trial court from granting H&M's motion for summary judgment.[10]

Respondent H&M went to the demolition site at appellant's request and brought along a structural engineer to assess what was needed to obtain a permit. After visiting the site and talking to a St. Cloud city official, Murray Mack faxed letters to the city and to appellant giving minimum recommendations and stating that bracing and shoring would be the responsibility of appellant and the company that it hired to do the demolition. The letter to appellant stated:

You and/or your demolition contractor will be responsible for all safety measures including installation and maintenance of a bracing and shoring system that will be in place both during and after demolition. * * * It shall be the owner/contractor's responsibility to determine the bracing and shoring methods.

Appellant argues that because the recommended bracing and shoring might not have been sufficient to support the wall, H&M could be partially responsible for the accident. However, no bracing was ever installed; this, according to the OSHA investigation, was the proximate cause of the wall falling and Bergerson's death. H&M could not have been the proximate cause of this accident. See Goette v. Press Bar & Cafe, Inc., 413 N.W.2d 854, 856 (Minn. App. 1987) (holding that when an architect's recommendations for a project are not followed, the architect cannot be the proximate cause of injuries that result from a building collapse).

In the alternative, appellant argues that H&M had a duty to notify Landwehr that bracing and shoring would be required after H&M visited the site and took steps to secure a demolition permit. However, the letters sent by Murray Mack clearly state that H&M would not be involved until the reconstruction began and would not be responsible for safe demolition. Also, H&M notified appellant that bracing and shoring would be required and would be the responsibility of the demolition crew. Granting summary judgment was proper.

The trial court's decisions regarding jury instructions, admission of evidence, denial of appellant's JNOV motion, and granting of H&M's motion for summary judgment were not an abuse of discretion.

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] Don Geyer is the co-owner of Serenity and the president of Geyer. Because the parties were treated as one for the purposes of the special verdict and for this appeal, "appellant" will refer to the two parties collectively.

[2] Although Landwehr was not a party in this proceeding, the question of its negligence was submitted to the jury.

[3]Restatement (Second) of Torts § 410 states that the employer of an independent contractor is liable for any injury that occurs when the independent contractor acts pursuant to the employer's negligently given orders. Restatement (Second) of Torts § 413 states that the employer of an independent contractor doing work likely to create a peculiar risk of harm absent special precautions is liable for injuries caused by the absence of the precautions if the employer failed either to provide in the contract that the precaution be taken or to exercise reasonable care to provide in some other manner for taking the precautions.

[4] Joe Braun testified that he read the permit requirements over the phone to appellant's employee Kevin Kissner. In addition, Murray Mack sent a letter to appellant advising it that bracing and shoring would be required. Both Kissner and appellant testified that they did not communicate these requirements to Landwehr employees. Though Landwehr may have been aware of the need for bracing and shoring when its permit application was denied, it was not involved in obtaining the permit. In addition, Landwehr employee Mark Dockendorf did not read the permit when he picked it up nor did he give it to any other Landwehr employee before delivering it to appellant on the day of the accident.

[5] Appellant argues that section 413 is not applicable in this case because appellant had no previous experience in demolition projects. We find no authority, however, either in section 413 or the comments following that section to hold that lack of experience completely excuses an employer from exercising due care.

[6] On appeal, appellant argues that its JNOV motion was wrongly denied because it owed no duty to Bergerson.

A motion for judgment notwithstanding the verdict admits every inference reasonably tending to be drawn from the evidence as well as the credibility of the testimony for the adverse party. Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). Considering our analysis regarding appellant's duty to notify invitees of dangerous conditions on its property and appellant's duties according to Restatement (Second) §§ 410 and 413, appellant's argument does not reach the high standard established in Seidl. The court properly denied appellant's JNOV motion.

[7] Moreover, the jury was instructed, as usual, that statements by the attorneys are not to be taken as evidence in the case; this instruction would have diminished the effect of the statement.

[8] There is testimony from a Geyer employee regarding these initial test cuts; however, appellant does not take note of this testimony and argues only that the expert's testimony was prejudicial. Our analysis is therefore limited to the expert's testimony.

[9] Respondent H&M filed a motion in this court to strike all references to the trial transcript in appellant's brief. Respondent argues that because a motion for summary judgment requires assessment of the facts as they exist at the time the motion is brought, appellant should not be allowed to use evidence presented at trial to show that genuine questions of fact exist. We agree. Dalco v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983) (allowing evidence in after the summary judgment hearing would permit the summary judgment ruling to be subject to continuous change which would undermine the expediency of the summary judgment practice). However, even assuming the admissibility of these references, we find nothing in the trial transcript that raises a material fact issue.

[10] As a preliminary matter, respondent Bergerson argues that because appellant did not file a cross-claim against H&M and did not oppose its motion for summary judgment, appellant does not have standing to now challenge the summary judgment. However, respondent cites no case law to support this proposition. In Muggenburg v. Leighton, 240 Minn. 21, 24, 60 N.W.2d 9, 10 (1953), the supreme court held that a losing defendant may challenge a verdict or ruling in favor of a co-defendant when that ruling precludes the defendant from seeking contribution against the co-defendant. Though appellant in that case was challenging a directed verdict, not a summary judgment, the concept remains the same: a defendant has standing to appeal verdicts and rulings in favor of a co-defendant when the ruling precludes the defendant's contribution rights. Appellant has standing to raise this issue.