Flom v. Flom, 49562

Decision Date25 January 1980
Docket NumberNo. 49562,49582.,49562
Citation291 NW 2d 914
PartiesRuth Ann FLOM, Respondent, v. Robert P. FLOM, City of Owatonna, Appellants.
CourtMinnesota Supreme Court

Baudler, Baudler & Maus, William Baudler, Austin, Robert P. Flom, pro se. for Flom in No. 49562.

Reding & Votel and James A. Reding, St. Paul, for City of Owatonna in No. 49582.

Rietz, Rietz & Rietz and Larry J. Rietz, Owatonna, for respondent.

Heard before PETERSON, KELLY and WAHL, JJ., and considered and decided by the court en banc.

OPINION

KELLY, Justice.

Plaintiff, who sustained injuries in a fall from a manually operated merry-go-round in a public park, brought a negligence action against her husband, who was pushing the merry-go-round at the time, and the city that owned the park. After a trial the jury apportioned causal negligence 55 percent to the husband, 35 percent to the city, and 10 percent to the plaintiff and awarded damages. The trial judge ordered judgment on the jury findings and denied defendants' motions for a new trial or judgment notwithstanding the verdict. Both defendants appeal from the judgment, claiming that there is insufficient evidence to show negligence or cause on the part of either defendant. Defendant Robert Flom also claims that plaintiff was more negligent than he was as a matter of law. We affirm.

On Saturday, October 15, 1975, defendant Robert Flom, his wife, plaintiff Ruth Ann Flom, and their 5-year-old son and his friend went to Mineral Springs Park in Owatonna. While they were there, the children asked to play on the park merry-go-round before going home. The merry-go-round was manually operated and circular with a center pole from which spokes extended to points close to the perimeter of the platform. There were nine fork-shaped metal support bars along the edge of the perimeter. At that time, several boards in the platform were broken; a piece of metal was hanging from the platform (apparently a weld from one of the support bars); and part of the support area was loose. There was a cement walkway all around the merry-go-round.

Mr. Flom set the two children close to the perimeter of the platform so that their legs straddled the support bars and their feet hung over the edge. Both children grasped the support bar in front of them. Mr. Flom then turned the merry-go-round slowly once or twice. The children and Mr. Flom then "coaxed" plaintiff to get onto the merry-go-round. With some hesitation because she was afraid of "rides," plaintiff got onto the merry-go-round on the opposite side from the children, sitting on the flat surface facing outward between two of the support bars. She drew her legs up so that her feet were flat on the platform about one foot from the edge, and grasped the support bar on either side with each hand. Both she and the children sat away from the broken boards and any loose area.

Mr. Flom positioned himself halfway between plaintiff and the children, facing the children, with his back toward plaintiff, and began pushing the merry-go-round. He testified that he started pushing slowly but picked up speed until he was running "as fast as I could without stumbling." While he was pushing the merry-go-round, plaintiff did not cry out or tell him to stop. When, but not before, Mr. Flom let go, he observed a frightened look on his wife's face and heard a "chattering sound" emanating from the merry-go-round. At that time he testified that he observed the merry-go-round wobble and pitch about three or four inches at the perimeter. He immediately attempted to stop the merry-go-round, but plaintiff fell off sometime during the split second it took him to react.

Plaintiff testified that when Mr. Flom let go of the merry-go-round, it was going "very, very fast * * *. It started shaking and wobbling and making all this noise, and going so fast as it pitched downward, the next thing I knew I was laying on the cement." To the question, "Did you ever voluntarily release your hands," she replied, "Absolutely not." The fall to the cement pavement caused some permanent injury to plaintiff's leg.

Robert Kneifel, an Owatonna city employee, testified that he and several co-workers removed the merry-go-round for painting sometime in the fall of 1975, after the accident. Before removal, they spun the merry-go-round while occupied, and it did not wobble. Kneifel testified that the four nuts that held the body of the merry-go-round to the base were tightly screwed at that time. The Owatonna park maintenance department then fixed the boards and loose metal and reinstalled the merry-go-round. Kneifel testified that, except for the minor repairs, the mechanical portion of the merry-go-round was in the same position when the department reinstalled the merry-go-round as it was when the department removed the merry-go-round.

Fred Cady, an accident reconstruction expert, testified that he examined the reinstalled merry-go-round. He testified that in his opinion a wobble due to looseness of the base or movement in the bearings could be at most 1/8 inch of vertical movement at the edge of the platform.

Issues Presented

1. Was the evidence sufficient to support the jury findings of both negligence and cause on the part of defendant Robert Flom?

2. Does the evidence compel a finding that plaintiff was more negligent than defendant Robert Flom as a matter of law?

3. Was the evidence sufficient to support a jury finding of both negligence and cause on the part of the defendant City of Owatonna?

1. Negligence is the failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances. Hartmon v. National Heater Co., 240 Minn. 264, 60 N.W.2d 804 (1953); Peterson v. Minneapolis Street Ry., 226 Minn. 27, 31 N.W.2d 905 (1948). However, an action or omission is not negligence if the harm that resulted from it could not be reasonably anticipated or foreseen. Luke v. City of Anoka, 277 Minn. 1, 151 N.W.2d 429 (1967). The issue of negligence is normally for the jury and must be upheld unless the reviewing court, viewing "the evidence in the light most favorable to the verdict" and drawing "every reasonable inference in support of the verdict," finds the verdict "to be manifestly and palpably contrary to the evidence as a whole." Webster v. St. Paul City Ry., 241 Minn. 515, 517, 64 N.W.2d 82, 84 (1954); Accord, Ruskamp v. Ferknes, 261 N.W.2d 612 (Minn.1978).

On this issue, there is little need to go beyond the remarks of the trial judge in his memorandum attached to the order denying a new trial:

The evidence at trial tended to show that Robert Flom was aware that the merry-go-round was not in good repair.
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