Davis v. Church of Jesus Christ of Latter Day Saints

• Decision Date: 12 July 1990
• Docket Number: No. 89-466,I-X,89-466
• Citation: 796 P.2d 181,244 Mont. 61
• Parties: Jonnie Musgrove DAVIS, Plaintiff and Respondent, v. The CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS; Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints; Corporation of the President of the Church of Jesus Christ of Latter Day Saints; Risk Management Division, Kalispell Stake Center of the Church of Jesus Christ of Latter Day Saints; and John Does(unknown divisions, departments, subsidiaries, affiliates, associations, whether incorporated or unincorporated, agents, employees, bishops, presidents, assigns, or any other entity or person related to any of the above-named defendants), Defendants and Appellants.
• Court: Montana Supreme Court

Page 181

796 P.2d 181

244 Mont. 61

Jonnie Musgrove DAVIS, Plaintiff and Respondent, v. The CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints; Corporation of the President of the Church of Jesus Christ of Latter Day Saints; Risk Management Division, Kalispell Stake Center of the Church of Jesus Christ of Latter Day Saints; and John Does I-X (unknown divisions, departments, subsidiaries, affiliates associations, whether incorporated or unincorporated agents, employees, bishops, presidents, assigns, or any other entity or person related to any of the above-named defendants), Defendants and Appellants.

No. 89-466.

Supreme Court of Montana.

Submitted on Briefs Feb. 9, 1990.

Decided July 12, 1990.

Kenneth E. O'Brien; Hash, O'Brien & Bartlett, Kalispell, for defendants and appellants.

Dana L. Christensen & Pamela L. Miller, Murphy, Robinson, Heckathorn & Phillips; Kalispell, for plaintiff and respondent.

McDONOUGH, Justice.

The defendants (Church) appeal the judgment entered in the District Court, Eleventh Judicial District, Flathead County, awarding Jonnie Musgrove Davis damages for personal injury in the amount of $401,864.28. We affirm the District Court.

The issues raised by the Church are:

1. Whether there was substantial evidence to support the jury verdict.

2. Whether it was error to allow Dr. Alexander McNeill to render an opinion as to degree of slope of the walkway.

3. Whether the District Court erred in giving Davis' proposed instructions nos. 21, 22, 24, 27, 28 and 30, and refusing the Church's proposed instructions nos. 35, 36, 42, 43 and 44.

Plaintiff and respondent Jonnie Musgrove Davis (Davis) brought a lawsuit on July 20, 1987 to recover for injuries suffered as a result of a fall on the premises of the Kalispell Stake Center of the Church of Jesus Christ of Latter Day Saints. In her complaint Davis alleged that the Church was negligent in (1) failing to design and construct a reasonably safe sidewalk, (2) failing to erect a handrail, (3) failing to properly maintain the walkway by allowing an unnatural accumulation of ice to be present, and (4) failing to warn of the dangerous condition.

At the time of the accident, Davis was a volunteer youth seminary teacher at the Kalispell Stake Center. On February 25, 1985, she arrived at the Center at approximately 6 a.m. Several inches of snow had fallen during the night; but Davis entered the center without difficulty.

During Davis' seminary classes, the Church janitor arrived and shoveled the walkway. Usually he applied salt to prevent ice build up. However, on this occasion none was applied.

Davis completed her classes by 8 a.m., and proceeded to exit the building. As she left, she noted that the walkway had been shoveled, and she started to walk towards her car. The top portion of the walk was nearly level, and Davis had no problem negotiating it. At the midpoint of the walkway however, the slope downward increased. In this four to six foot long span, the sidewalk had been altered to remove two steps which were present in the original construction. The walk was reconstructed to enable elderly and wheelchair-bound church members easier access. As Davis descended this slope she slipped and fell, landing on her head and neck. As a result of her injuries, Davis has undergone five operations to her cervical spine.

Davis filed suit in 1987. In the summer of 1985, subsequent to the accident, the Church redesigned and replaced portions of the walkway due to deterioration. Consequently, no exact measurement of the gradient of the walkway where Davis fell could be determined at trial.

At the close of Davis' case, the Church moved for a directed verdict. The motion was denied, as was the subsequent motion for new trial. The Church contends now, as then, that no basis exists for a finding of negligence on the part of the Church.

Because this is an appeal from the findings of a jury, we need only determine whether there is substantial evidence in support of the verdict. The appropriate standard of review requires that the findings of a jury shall not be reversed on appeal unless they are not supported by substantial evidence. Kitchen Krafters, Inc. v. Eastside Bank of Montana (Mont.1990), 789 P.2d 567, 47 St.Rep. 602. Substantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. Although it may be based upon weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous. Christensen v. Britton, et al (Mont.1990), 784 P.2d 908, 46 St.Rep. 2223.

The Church maintains that the jury's verdict is not supported by substantial evidence. In order to address this contention we must review the evidence in a light most favorable to Davis. Wheeler v. City of Bozeman (1988), 232 Mont. 433, 757 P.2d 345.

In her complaint, Davis alleged that the Church was negligent for failing to properly design, construct and maintain the walkway which led to the main doorway of the Kalispell Stake Center. She also alleged that the Church was negligent in failing to warn her of the dangerous condition of this walkway. In order to prove these assertions she must establish:

1) The Church had a duty to construct and maintain the walkway in a reasonably safe condition.

2) The Church breached that duty.

3) The Church's breach caused Davis to sustain damages.

See Kitchen Krafters, Inc., 789 P.2d at 567.

No one contends that Davis did not sustain an injury after she slipped and fell upon the sidewalk. Therefore, we need only review the evidence to determine whether there was substantial evidence for the jury to determine that the Church had a duty to provide safe access to the church, whether this duty was breached, and whether that breach caused Davis' injuries. See Blaskovich v. Noreast Development Corp. (Mont.1990), --- Mont. ----, 790 P.2d 977, 47 St.Rep. 740.

The law is clear that a landowner has a duty to use ordinary care in maintaining his premises in a reasonably safe condition or to warn those legally on the land of any hidden or lurking dangers. Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921. Given this rule of law, it is elementary that the Church had a duty to provide a sidewalk leading to the church which is reasonably safe.

The question then becomes--did the Church breach this duty? At trial, both sides presented testimony concerning the condition of the walkway. Much of this testimony centered around the slope of that portion of the sidewalk which led to the front doors of the church. The slope is important because the Uniform Building Code requires that handrails be provided on any slope greater than ten percent, and in this case no handrails were provided. The Church maintains that the slope did not exceed a gradient of ten percent. Davis on the other hand, contends that the slope ranged from 16 to 25 percent.

Both parties base their slope calculations on testimony presented by witnesses at trial. Davis presented testimony given by Dr. Alex McNeill, an expert in biomechanics. Dr. McNeill testified that the slope of the walkway, where Davis fell, ranged from 16 to 25 percent. Apparently, he based this opinion upon a review of photographs taken of the walk, numerous blueprints prepared in connection with the original church construction, and a review of depositions taken of various witnesses.

Davis also presented testimony of Allan Denning, a long time member of the church. His testimony primarily concerned his memory of the entrance way as it existed at the time of the accident. He testified, that as a child, he would slide down the slanted area. During trial, in response to a request from counsel, he drew a picture to demonstrate the slope of the sidewalk. His picture indicated a slope of approximately 24%.

The Church, in an attempt to discredit the testimony provided by Dr. McNeill and Mr. Denning, presented calculations and testimony to prove its slope percentages, which did not exceed ten percent. They attempted to bolster this evidence through testimony given by Harry Schmautz, a licensed architect and Harold Conat, an experienced cement finisher, who installed the walkway. Both testified that the walkway was not dangerously steep and that no handrail was necessary.

In addition to evidence of the slope of the walkway, the jury heard testimony concerning the slickness of the sidewalk on the day of the accident. In particular, the church janitor, John Reading testified that he shoveled the walk at approximately 7:30 a.m. He further testified that he did not apply any salt to the sidewalk despite the fact that this was regularly done in the past.

Dana Tatum, a young woman who witnessed Davis' fall, testified that the sidewalk was slick on the day of the accident. Apparently, she had walked the sidewalk shortly before Davis slipped and fell. She testified that because the sidewalk was so slick she made her younger brother accompany her down the ramp. She further stated that at the time she wondered why there was no salt applied to the walkway.

Following submission of all of this testimony, the jury determined that the Church was 76% responsible for the injury and that Davis was 24% responsible. While the testimony was conflicting, it is apparent that there was substantial evidence to support the jury's findings that the sidewalk was unreasonably dangerous. Where conflicting evidence exists the credibility and weight to be given to the evidence is within the jury's province. Wheeler, 757 P.2d at 345. The jury found sufficient evidence that the walkway was unsafe and this Court will not overturn its determination by weighing conflicting evidence on appeal. Wheeler, 757 P.2d at 347.

There is also substantial evidence to support a finding that the unreasonably dangerous condition of the sidewalk caused Davis to slip and to...