Henricksen v. State

• Decision Date: 28 January 2004
• Docket Number: No. 02-519.,02-519.
• Parties: Kristin HENRICKSEN, individually and a parent and guardian of Hunter Henricksen, a minor, Plaintiff, Respondent and Cross-Appellant, v. STATE of Montana and Montana State University, Defendants and Appellants.
• Court: Montana Supreme Court

84 P.3d 38

2004 MT 20

319 Mont. 307

Kristin HENRICKSEN, individually and a parent and guardian of Hunter Henricksen, a minor, Plaintiff, Respondent and Cross-Appellant, v. STATE of Montana and Montana State University, Defendants and Appellants.

No. 02-519.

Supreme Court of Montana.

Submitted on Briefs June 5, 2003.

Decided January 28, 2004.

For Appellants: Steven J. Harman, Brown Law Firm, Billings, Montana, Honorable Mike McGrath, Attorney General; Katherine J. Orr, Assistant Attorney General, Helena, Montana.

For Respondent: Monte D. Beck, Beck, Richardson & Amsden, PLLC, Bozeman, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 The State of Montana and Montana State University (collectively the State) appeal multiple District Court rulings detailed below. Kristin Henricksen (Kristin) cross-appeals. We affirm in part and reverse in part.

¶ 2 The issues on appeal are as follows:

¶ 3 1. Whether the District Court erred in granting partial summary judgment on the issue of liability?

¶ 4 2. Whether the District Court erred in bifurcating liability and damages and in bifurcating Kristin's and Hunter's damages?

¶ 5 3. Whether the District Court erred in denying the production of (1) Kristin's medical and mental health records; and (2) her financial documents, school transcripts, and personnel records?

¶ 6 4. Whether the District Court erred in not allowing the State to depose Hunter or to call him as a witness?

¶ 7 5. Whether the District Court erred in prohibiting the State from conducting an IME and in excluding the State's expert witness?

¶ 8 6. Whether the District Court erred in excluding evidence of (1) stressors in Kristin's life unrelated to the accident and counseling services Kristin received prior to Hunter's accident; and (2) a prior fall at the MSU library?

¶ 9 7. Whether the District Court erred in its jury instructions for the claims of emotional distress and loss of established course of life?

¶ 10 8. Whether the District Court erred in excluding the videotapes of Hunter?

¶ 11 9. Whether the District Court erred in not dismissing jurors for cause?

Factual and Procedural Background

¶ 12 On November 2, 1995, Kristin and her three-year-old son Hunter were at the Montana State University (MSU) library. Hunter slipped between the stairway balusters of a second story open stairwell and fell approximately twenty feet to the concrete floor below, landing on the left side of his head. Within hours of Hunter's fall, Kristin learned that another child had fallen through the same stairway weeks earlier. As a result of this fall, Hunter suffered three skull fractures. Since the fall, medical tests have revealed that an area of his brain tissue about the size of a golf ball has atrophied.

¶ 13 On December 17, 1996, Kristin individually, and as parent of Hunter, filed a complaint against the State. Kristin's claim was based on emotional distress, loss of consortium, and post-traumatic stress disorder, all related to Hunter's fall. Hunter's claim was for medical expenses related to his injuries, loss of enjoyment of lifestyle, and pain and suffering.

¶ 14 On February 23, 1999, the District Court granted partial summary judgment against the State, regarding duty and breach. The court bifurcated the issues of liability and damages and also the issues of Kristin's and Hunter's damages.

¶ 15 The court granted motions in limine excluding the following evidence: lack of prior accidents at the library; evidence that the stairway complied with the Uniform Building Code in effect at the time the stairway was constructed; evidence of a child's fall weeks before Hunter's fall from the same stairway; and evidence concerning Kristin's divorce and prior unrelated counseling. The court also granted a motion to strike Dr. David Price's testimony and limit Dr. Paul Bach's testimony (both expert witnesses for the State). After conducting an in camera review of Kristin's medical records, the court denied a motion to compel production of Kristin's health care records from before and after Hunter's fall. The court also denied the motion to compel production of all Kristin's financial documents. The State requested, before the discovery deadline, an independent medical examination of Kristin which the District Court at first granted but later denied after reconsideration.

¶ 16 At the start of the trial, beginning on April 15, 2002, the State challenged several jurors for cause because they had read a newspaper article regarding Hunter's accident that mentioned the prior fall. All but one of these challenges were denied after the jurors were questioned about potential bias. After a five-day trial, a jury rendered a verdict against the State. The verdict amount was reduced by 20 percent based on Kristin's comparative negligence.

¶ 17 The State has appealed numerous issues, delineated above. In the event that a new trial is ordered, Kristin cross-appealed the preclusion of the evidence regarding the prior fall. We affirm in part and reverse in part.

Discussion

¶ 18 Issue 1: Whether the District Court erred in granting partial summary judgment on the issue of liability?

¶ 19 We review a district court's grant of summary judgment de novo, applying the same criteria as the district court, based on Rule 56, M.R.Civ.P. Wiley v. City of Glendive (1995), 272 Mont. 213, 216, 900 P.2d 310, 312. The party moving for summary judgment must demonstrate that no genuine issues of material fact exist. Wiley, 272 Mont. at 216, 900 P.2d at 312. If this is demonstrated, "the burden then shifts to the party opposing the motion to establish otherwise." Wiley, 272 Mont. at 216, 900 P.2d at 312. Although negligence actions involve questions of fact and are ordinarily not susceptible to summary judgment, when reasonable minds cannot differ, questions of fact can be determined as a matter of law. Wiley, 272 Mont. at 216, 900 P.2d at 312.

¶ 20 A negligence action has four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Wiley, 272 Mont. at 217, 900 P.2d at 312. In this case, the District Court granted summary judgment on the duty and breach of duty elements. Causation and damages were left for determination at trial.

¶ 21 The question of whether the State owed a legal duty to Kristin and Hunter and the scope of this duty are questions of law. Webb v. T.D. (1997), 287 Mont. 68, 72, 951 P.2d 1008, 1011. "The existence of a duty of care depends upon the foreseeability of the risk and upon a weighing of policy consideration for and against the imposition of liability." Estate of Strever v. Cline (1996), 278 Mont. 165, 173, 924 P.2d 666, 670. The policy considerations weighed to determine whether to impose a duty include:

(1) the moral blame attached to the defendant's conduct; (2) the desire to prevent future harm; (3) the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (4) the availability, cost and prevalence of insurance for the involved.

Estate of Strever, 278 Mont. at 173, 924 P.2d at 670.

¶ 22 A duty of care is breached, as a matter of law, if a defect or dangerous condition exists of a sufficient magnitude to cause a reasonable person to conclude that an accident is likely to occur because of the condition and the person or entity exercising control over the condition had notice of the defect. Wiley, 272 Mont. at 218, 900 P.2d at 313. "[W]hen the State has notice of a defect and opportunity to act, it has the duty to cure, remove, or warn of that defect." Wiley, 272 Mont. at 217, 900 P.2d at 313.

¶ 23 After reviewing the record before us, we conclude that the State owed a duty of ordinary care to prevent children from falling through the balusters in the MSU library. Section 27-1-701, MCA. As the State has a duty to maintain sidewalks and highways in a safe condition for ordinary and public use, Wiley, 272 Mont. at 217, 900 P.2d at 312, so too does it have a duty to maintain the balcony and staircase at the MSU library in a safe condition for ordinary and public use. The State knew the distance between the balusters of the stairway was a gaping eleven to twelve inches. This alone was sufficient to make Hunter's fall foreseeable. Additionally, the State knew that approximately two weeks earlier another child fell through the balusters at the library. After this first accident, the dangerous condition of the balusters could not be ignored. Yet the State did not act.

¶ 24 Policy considerations support the imposition of a duty upon the State. The baluster spacing which led to the accident was in a state library open to the public. Society has a legitimate interest in prevention of harm to all library users because the library should be safe for all users and their children. The State had a minimal burden placed upon it to remedy the situation, as shown by the placement of chickenwire in front of the balusters within twenty-four hours of Hunter's fall. Lastly, the public suffers no negative cost if the State is held to a duty of care because any liability is covered by the State's insurance.

¶ 25 The State breached its duty of ordinary care when it failed to take any remedial action following the first fall. The State had a duty to maintain the stairway in a reasonably safe condition and to take measures to prevent small children from falling through the balusters. The State had notice of the defect caused by the unsafe distance between the stairway balusters when the first fall occurred. "When defects are present the State's duty to cure or remove the same, or give warning thereof begins when it has notice of the same and opportunity to act." Buck v. State (1986), 222 Mont. 423, 430, 723 P.2d 210, 214 (overruled on other grounds). Here, despite notice, the State did not act to cure, remove, or warn of the stairway defect.

¶ 26 The State contends that because it had a...