Dean v. Weisbrod
| Decision Date | 26 April 1974 |
| Docket Number | No. 44257,44257 |
| Citation | 217 N.W.2d 739,300 Minn. 37 |
| Parties | William E. DEAN, Jr., and Shirley Jeanne Dean, Individually and as Husband and Wife, Respondents, v. Forrest G. WEISBROD, et al., Appellants. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. In considering the sufficiency of the evidence on an issue, the same rule is applicable whether the question be raised by motion for a directed verdict or by motion for judgment notwithstanding the verdict.
2. As to causes of action arising prior to July 14, 1972, where a licensor has reason to know of a condition on his premises that poses a risk to a licensee and the condition is one not likely to be discovered, the licensor has a duty to exercise reasonable care to make the condition safe or to warn the licensee of the condition and risk involved unless the licensee knows or has reason to know of the condition and risk involved.
3. The trial court's denial of a motion for a new trial based on opposing counsel's argument that defendant has acted to obscure the real issues or that a finding of damages less than a specified amount will constitute a victory for defendant is not a clear abuse of discretion.
Murnane, Murnane, Battis & Conlin, and Robert W. Murnane, St. Paul, for appellants.
Nord, Webster & Brennan and David W. Nord, Joseph H. Rivard, St. Paul, for respondents.
Heard by SHERAN, C.J., and TODD, MacLAUGHLIN and McRAE, JJ., and considered and decided by the court.
This is an appeal from an order of the district court denying defendants' alternative motions for judgment notwithstanding the verdict or for a new trial and from the judgment entered against defendant Forrest G. Weisbrod in favor of plaintiff William E. Dean, Jr., pursuant to the special verdict returned by a jury. Although the parties' wives were also nominally parties, we shall refer to Dean as plaintiff and to Weisbrod as defendant.
In denying defendant's motion for judgment notwithstanding the verdict, the trial court determined that there was sufficient evidence to support the jury's finding of causative negligence on the part of defendant. In denying the motion for a new trial, the court determined that the arguments made by plaintiff's counsel were not so improper and prejudicial as to require a new trial. We affirm the trial court in both aspects of its ruling.
This case involves an accident which occurred on July 28, 1971, on defendant's residential property located in White Bear Lake, Minnesota. At the time of the accident the parties were occupying adjoining homes. Defendant, who was then 65 years of age, had worked in general maintenance, plumbing, carpentry, and electrical work during his adult life. Plaintiff was 26 years of age at the time of the accident and had been employed as an apprentice plumber for several years.
When defendant purchased his home in 1968, there was a flagpole located on the property. The pole consisted of two sections of iron pipe, one of which had an inside diameter of 1 inch and the other an inside diameter of 1 1/2 inches. The sections of pipe were joined by a reducing coupling into which the threaded ends of the two pipes were inserted. The coupling was about 2 inches in length and the inside of both the 1-inch and 1 1/2-inch openings was threaded to receive the threaded ends of the pipe.
Some time after acquiring his property, defendant moved the flagpole to a new location on his lot. In doing so, he disassembled the two sections of iron pipe and removed the threaded end of one pipe from the coupling. Defendant could not recall whether the coupling remained attached to the larger or smaller pipe. While the pole was disassembled, defendant used a wire brush on the exposed threads of the pipe and sanded and painted the coupling and both sections of pipe. The larger pipe was then embedded in concrete which was allowed to set for 3 or 4 days. The smaller pipe, either with or without the coupling attached thereto, was then attached to the embedded pipe. In joining the smaller pipe to the larger one by use of the coupling, defendant had difficulty in getting the threads of the pipe to mesh with the threads of the coupling. However, with the help of a taller man and the use of a pipe wrench, he did obtain what he felt to be a sufficient joinder. As reassembled, the flagpole consisted of the 1 1/2-inch pipe embedded in concrete and extending above the ground about 5 or 6 feet, the reducing coupling, and the 1-inch pipe extending upward for about 10 feet above the coupling.
On two occasions prior to the flagpole's being moved and on one occasion after the move, defendant had done work on the flagpole and in so doing had placed a ladder against the pole to reach its top.
On July 28, 1971, plaintiff returned to his home from work late in the afternoon and was approached by defendant with the request that plaintiff assist defendant in securing release of a flag which had become entangled with a pulley atop the flagpole on defendant's property. Plaintiff agreed to do so after he had completed his evening meal and thereafter did go upon defendant's premises. It was determined that an aluminum extension ladder would be used by plaintiff to reach the top of the pole. The ladder was extended the required distance and was then placed against the flagpole with the bottom of the ladder about 2 feet from the bottom of the pole. Before ascending the ladder plaintiff asked defendant if the latter thought it would hold plaintiff, and defendant responded that he thought so because he had been up there several times. While defendant steadied the ladder, plaintiff climbed up five or six rungs, at which point he was about 6 feet above the ground. The flagpole then broke in an exposed thread of the 1-inch pipe at its point of juncture with the coupling. Plaintiff fell, sustaining serious injuries. Examination of the flagpole after the accident revealed that only 4 of the 9 1/2 threads on the 1-inch pipe had been engaged with the threads of the coupling. The small end of the coupling had been threaded so that it was not necessary to leave exposed any of the threaded portions of the 1-inch pipe.
The trial court in its instructions defined the duty of defendant in terms of plaintiff being a licensee and submitted the case to the jury in a special verdict. By its verdict the jury found that defendant was negligent, that his negligence was a direct cause of plaintiff's injuries, and that plaintiff was not negligent. Defendant claims that the trial court erred in denying his motion for a directed verdict made during trial and his post-trial motion for judgment notwithstanding the verdict for the reason that there was not sufficient evidence to justify the trial court in submitting to the jury the issue of defendant's negligence.
1. In considering the sufficiency of the evidence on an issue, the same rule is applicable whether the question be raised by motion for a directed verdict or by motion for judgment notwithstanding the verdict. Jacoboski v. Prax, 290 Minn. 218, 187 N.W.2d 125 (1971); Satter v. Turner, 257 Minn. 145, 100 N.W.2d 660 (1960). In Satter, later overruled insofar as it dealt with an unrelated issue, 1 we state this rule to be as follows:
. .' 257 Minn. 155, 100 N.W.2d 667.
See, also, Ford v. Stevens, 280 Minn. 16, 157 N.W.2d 510 (1968); Lovejoy v. Minneapolis-Moline Power Implement Co., 248 Minn. 319, 79 N.W.2d 688 (1956).
The approach of the trial court to a motion for judgment notwithstanding the verdict has been otherwise defined in Malmquist v. Leeds, 245 Minn. 130, 134, 71 N.W.2d 863, 866 (1955), as follows:
'* * * Unless the evidence, which must be viewed in the light most favorable to the verdict, is so clear and conclusive as to preclude a reasonable difference of opinion among fair-minded men, the court should not (substitute) its judgment for that of the jury.'
We address ourselves, therefore, to the question of whether or not the jury's finding of causative negligence on the part of defendant is manifestly against the entire evidence or is contrary to the law applicable in the case or if the evidence is so clear and conclusive as to preclude a reasonable difference of opinion among fair-minded men.
2. The circumstances of this case, involving as it does an express invitation to plaintiff to come upon the premises of defendant for the sole benefit of the latter, would have justified instructions covering the duty of a possessor of land to his invitee. Supornick v. Supornick, 175 Minn. 579, 222 N.W. 275 (1928); Prosser, Torts (4 ed.), § 61. However, the trial court, contrary to plaintiff's present contentions, instructed the jury on the duty of a possessor of land to licensees. 2 No exceptions were taken to the instructions as given, and for the purpose of this decision we consider the defendant's duty to be that of licensor to licensee. The court's instructions were in terms of the elements set forth in Restatement, Torts 2d, § 342, which reads:
'A possessor of land is subject to liability for physical harm caused to licensees by a condition on...
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