Berry v. Haertel, 41186
| Decision Date | 29 August 1969 |
| Docket Number | No. 41186,41186 |
| Citation | 284 Minn. 400,170 N.W.2d 558 |
| Parties | Kenneth D. BERRY, Respondent, v. G. Adolph HAERTEL dba Haertel's Feed and Seed and Haertel's Inc., Appellants. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.
2. The possessor of premises used by business visitors owes an affirmative duty 3. In an action for personal injuries sustained by plaintiff in a fall into a hole which resulted from a break in a wooden floor board while plaintiff was carrying bales of hay out of defendant's storage building, Held that the evidence is sufficient to support the verdict and award to plaintiff, and that the trial court (1) properly determined plaintiff to be a business visitor as a matter of law, and (2) adequately instructed the jury concerning defendant's duty to a business visitor.
to protect such persons not only from dangers known to him but also against those which with reasonable care he might discover.
O'Connor, Green, Thomas, Walters & Kelly, Minneapolis, for appellants.
Feinberg, Mirviss, Meyers, Schumacher & Malmon, Minneapolis, for respondent.
Heard before KNUTSON, C.J., and MURPHY, ROGOSHESKE, SHERAN, and PETERSON, JJ.
Appeal from a judgment entered pursuant to a jury verdict and from the denial by the trial court of defendant's alternative motion for judgment notwithstanding this verdict or for a new trial.
On November 7, 1961, the plaintiff, Kenneth Berry, a 47-year-old employee of the city of Minneapolis, was working as a helper on a truck which was used to move heavy metal forms into place ahead of a paving crew and to run various errands for the crew. During November, it was necessary to cover the newly poured concrete with hay during the drying process to prevent freezing. In the late afternoon, plaintiff's truck was sent to defendant's place of business at 42nd Street and Lyndale Avenue North to pick up some hay. Defendant, a feed, seed, and garden-supply dealer, had been supplying hay to the city under a contract for about 20 years. The hay was stored inside a 40 by 100-foot wood frame building which defendant had occupied since 1934. Its floor consisted of wood planks, 6 inches wide and an inch thick. There was no basement underneath this floor.
Plaintiff's truck pulled up to the loading dock at the side of the building. There is some dispute in the record over whether someone from the truck went immediately to defendant's office to sign an order slip for the hay, as was the usual practice before loading began. In any event, plaintiff proceeded into defendant's building and began carrying out bales of hay on a two-wheeled cart and loading them on the truck. When the truck had been almost filled, one of the floor boards in the building gave way underneath plaintiff, and his right leg went down into the resulting hole up to his hip. This floor had not been repaired or replaced since defendant first occupied the building in 1934. However, defendant had not observed any breaks or cracks in the boards prior to this incident, and the board which broke appeared normal to plaintiff before it gave way and did not appear to be rotten when inspected thereafter.
Plaintiff returned with the hay to the construction site, reported the accident, and had an antiseptic swabbed onto the scrapes and scratches on his leg. The next day he went to General Hospital, complaining of low back pain. He returned to work shortly thereafter but testified that he was no longer able to do any heavy work. In December, he quit and, apart from several short, unsuccessful efforts, has not worked since. Three and one-half years after the accident, plaintiff brought this action against defendant, alleging that the floor of defendant's building had been negligently constructed and maintained and that he had suffered $125,000 in damages as a result of his fall when that floor gave way beneath him.
After a trial, a jury returned a $32,500 verdict for plaintiff. Defendant's alternative motion for judgment notwithstanding the verdict or for a new trial was denied, and defendant appeals.
The evidence establishes that plaintiff is physically unable to do the kind of heavy physical labor which has been his only life's work. On appeal, defendant does not contend that plaintiff's disability was not caused by the accident on defendant's premises. Instead, defendant contends that (1) the trial court erred in holding that plaintiff was a business visitor as a matter of law; (2) the trial court failed to instruct the jury properly on the extent of the defendant's duty to foresee the risk and remedy it or warn of its existence; (3) the evidence does not support a finding that the defendant knew of, or should reasonably have discovered, the risk; and (4) the verdict was excessive due to passion and prejudice resulting from prejudicial testimony and improper argument by plaintiff's counsel.
1. The trial court held that plaintiff was, as a matter of law, a business visitor. In determining whether a person is a business visitor, we have applied the rule adopted by Restatement, Torts, § 332:
'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.' 1
See, Klingbeil v. Truesdell, 256 Minn. 360, 98 N.W.2d 134; Meyer v. Mitchell, 248 Minn. 397, 80 N.W.2d 450; Yeager v. Chapman, 233 Minn. 1, 45 N.W.2d 776, 22 A.L.R.2d 1260.
There can be no doubt that plaintiff was a business visitor invited by defendant to his premises. Defendant, however, contends that the scope of his invitation to plaintiff did not extend to the inside of the storage building. Defendant argues that the evidence shows it was customary practice for someone from the buyer's truck to go to the office for an order slip and then wait for defendant's employees to come out and help load the hay. Defendant claims that under the evidence plaintiff was arguably exceeding the bounds of the invitation in entering the building without an order slip and in loading the hay himself and, thus, was at most a mere licensee. See, McGenty v. John A. Stephenson & Co., 218 Minn. 311, 15 N.W.2d 874. He insists that the trial court should have submitted this issue to the jury. We do not agree.
As we read the record, it appears without significant dispute that city employees, such as plaintiff, had entered defendant's building in the past to help with loading the hay. None of them had ever been instructed or warned not to enter the building. Further, def...
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