Howes v. Kelly Services, Inc.

• Decision Date: 15 August 2002
• Docket Number: No. 20020014.,20020014.
• Citation: 649 N.W.2d 218,2002 ND 131
• Parties: Michael HOWES, Plaintiff and Appellant, v. KELLY SERVICES, INC., Defendant and Appellee.
• Court: North Dakota Supreme Court

649 N.W.2d 218

2002 ND 131

Michael HOWES, Plaintiff and Appellant, v. KELLY SERVICES, INC., Defendant and Appellee.

No. 20020014.

Supreme Court of North Dakota.

August 15, 2002.

Timothy Q. Purdon (argued) and Thomas A. Dickson (on brief), Dickson & Purdon, Bismarck, and Michael G. Liffrig (appeared), Mandan, for plaintiff and appellant.

Jerome C. Kettleson (argued), Pearce & Durick, Bismarck, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Michael Howes appealed from a judgment and post-trial orders granting motions by Kelly Services, Inc. ("Kelly") for judgment as a matter of law and for a new trial. Kelly cross-appealed from the denial of its motion for a new trial on grounds other than the sufficiency of the evidence. We reverse and remand for a new trial.

I

[¶ 2] On March 9,1998, Howes, an employee at Farmers Union Distribution Center ("Farmers Union") in Bismarck, was injured at work while unloading tractor tires from a semi-trailer. Allen Fuller, the general manger of Farmers Union, had made arrangements for Kelly to provide two temporary employees to help Farmers Union unload the tires. According to Fuller and Howes, an "older" and a "younger" man arrived at Farmers Union at about 8 a.m. on March 9, and identified themselves as Kelly employees. Howes, Keith Kemper, the driver of the semi-trailer, and the two Kelly temporary employees began unloading the truck. The two Kelly employees were primarily responsible for rolling the unloaded tires into the Farmers Union facility. While unloading the tires, a three-hundred-and-twenty-seven pound tractor tire at the top of a stack of tires became wedged between the stack and the ceiling of the semi-trailer. Howes and Kemper testified they worked the tire free, and they then took a break and left the tire at the top of the stack with about five inches hanging over the side of the stack. Howes and Kemper both testified that while they were loosening that tire, the younger Kelly employee came into the semi-trailer, and before they took their break, Kemper told the younger Kelly employee not to touch anything. While Howes and Kemper were taking their break, the younger Kelly employee was behind the stack of tires and the tire fell on Howes. Howes and Kemper both testified the tire could not have fallen unless it was pushed, and the only other person in the truck when the tire fell was the younger Kelly employee. Howes testified that, after the tire hit him, the younger Kelly employee told Howes, "Oh, shit, man, I'm sorry." Howes filed a March 1998 workers compensation claim which stated the tire had been pushed by a "Kelly Services helper." Fuller, Kemper, Howes, the older Kelly employee, and Linda Bridge, a Farmers Union employee, testified they did not know the name of the younger Kelly employee.

[¶ 3] Kelly's records indicated that it detailed Herb Ritz and Jeremy Levi to work at Farmers Union on March 9, 1998. Howes agreed Ritz was the older Kelly employee, but Howes testified Levi was not the younger Kelly employee who was in the semi-trailer when the tire fell. According to Howes, Kelly's records were wrong, and in response to a request for admission, Howes admitted that Ritz and Levi were not responsible for his injuries.

[¶ 4] Howes sued Universal Cooperatives, Winter Trucking, Inc., and Kelly. Howes alleged Universal Cooperatives supplied the load of tractor tires to Farmers Union on March 9, and negligently loaded the tractor tires in the semi-trailer. Howes also alleged Winter transported the tires to Farmers Union on March 9 and Winter's employee, Kemper, was negligent both in unloading the tires and in supervising the unloading of the tires. Howes further alleged Kelly's employees were negligent in unloading the tires. Universal Cooperatives and Winter were dismissed from the lawsuit before trial. A six-person jury returned a verdict finding Kelly's negligence was the proximate cause of Howes' injuries and awarding him damages.

[¶ 5] Kelly moved for judgment as a matter of law, asserting there was no evidence to support the jury's finding that Kelly was negligent. Kelly also moved for a new trial, asserting the evidence was insufficient to support the verdict and also raising other grounds for a new trial. The trial court granted Kelly's motion for judgment as a matter of law, concluding the evidence was insufficient to support the jury's finding that Kelly was negligent. The court also conditionally granted Kelly's motion for a new trial on the ground that the evidence was insufficient to support the verdict, but denied Kelly's motion for a new trial on all other grounds. Howes appealed, and Kelly cross-appealed.

II

[¶ 6] Howes argues the trial court erred in granting Kelly's post-trial motion for judgment as a matter of law. Howes argues there was sufficient evidence for the jury to find Kelly was negligent under the theory of vicarious liability, because there was ample evidence a Kelly employee pushed the tractor tire that injured Howes.

[¶ 7] In considering a motion for judgment as a matter of law under N.D.R.Civ.P. 50, a trial court must apply a rigorous standard with a view toward preserving a jury verdict. Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450. In determining if the evidence is sufficient to create an issue of fact, a trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict. Id. A judgment as a matter of law is appropriate if the evidence leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Id. A trial court's decision on a motion for judgment as a matter of law is fully reviewable on appeal. Id.

[¶ 8] In granting Kelly's motion for judgment as a matter of law, the trial court said:

This case involves an unidentified individual causing injury to Michael Howes. Mr. Howes cannot identify the individual. No one can identify the individual causing Mr. Howes' injuries. Based on the record, there was insufficient evidence from which the jury reasonably could have concluded that a Kelly employee caused Michael Howes' injuries. It was mere speculation, conjecture, and surmise for the jury to determine that an unknown person was an employee of Kelly.

[¶ 9] Viewing the evidence in the light most favorable to the verdict and accepting the truth of the evidence presented by Howes, we conclude the trial court erred in granting Kelly's motion for judgment as a matter of law. Howes presented evidence that an older and a younger man arrived at Farmers Union at about 8 a.m. on March 9, and the two men identified themselves as Kelly employees. Although Fuller, Howes, Kemper, and Bridge testified they did not know the names of the two Kelly employees, there was evidence which, if believed, established the younger Kelly employee was the person that pushed the tire that hit Howes. Kemper and Howes both testified the younger Kelly employee was the only other person in the semi-trailer when the tire hit Howes, and the tire could not have fallen without being pushed. Kelly's records indicated that Ritz and Levi were the Kelly employees that worked at Farmers Union on March 9. Howes testified the older Kelly employee was Ritz, but admitted the younger Kelly employee was not Levi. According to Howes, Kelly's records were incorrect. Ritz testified he worked at Farmers Union on March 9, but he did not know the other Kelly employee that worked with him on that day. Levi testified by audio-visual deposition that he worked one day at Farmers Union; he arrived at Farmers Union at 8:00 a.m. on that day and had to wait for the arrival of the semi-trailer that he helped unload; he initially helped unload dog and cat food because the semi-trailer with the tires was late; he did not know the names of anyone at Farmers Union and was not aware of any other Kelly employees working at Farmers Union on that day; he rolled tires into the warehouse and never went inside the semi-trailer; the semi-trailer was unloaded from a loading dock and not from another entrance; and he did not learn someone was claiming an injury on that day until more than six months later. Levi's testimony varied from that of other witnesses who testified the semi-trailer was at Farmers Union at 8:00 a.m. on March 9, the semi-trailer was not unloaded at the loading dock, and the younger Kelly employee went into the semi-trailer.

[¶ 10] We conclude the evidence supports an inference the younger Kelly employee pushed the tire that hit Howes, and Kelly's records about the name of the younger employee were erroneous. In reviewing the granting of a judgment as a matter of law, we must accept the truth of the evidence presented by Howes and the truth of all reasonable inferences from that evidence. Here, the evidence does not lead to one conclusion about which there can be no reasonable difference of opinion. We therefore reverse the order granting Kelly's motion for judgment as a matter of law.

III

[¶ 11] Howes argues the trial court abused its discretion in conditionally granting Kelly's motion for a new trial on the ground the evidence was insufficient to support the verdict, and if this Court upholds the grant of a new trial, the new trial should be limited to the issue of liability. In its cross-appeal, Kelly argues the trial court abused its discretion in failing to grant Kelly a new trial on the grounds that Kelly was entitled to a nine-person jury; that the court erred in denying Kelly's request for an instruction on the effect of Howes' admission that neither Levi nor Ritz dislodged the tire that hit him; that the jury erred in failing to assess fault against any other parties and in awarding Howes excessive damages; and that there were irregularities in the trial proceedings. Because we conclude Kelly was entitled to a...