Hundt v. Lacrosse Grain Co., Inc.

• Decision Date: 21 September 1981
• Docket Number: No. 3-1278A317,3-1278A317
• Citation: 425 N.E.2d 687
• Parties: Everett HUNDT Plaintiff-Appellant, v. LaCROSSE GRAIN CO., INC. Defendant-Appellee.
• Court: Indiana Appellate Court

Page 687

425 N.E.2d 687

Everett HUNDT Plaintiff-Appellant, v. LaCROSSE GRAIN CO., INC. Defendant-Appellee.

No. 3-1278A317.

Court of Appeals of Indiana, Fourth District.

Sept. 21, 1981.

Harris & Welsh, Michael C. Harris, Chesterton, for plaintiff-appellant.

Newby, Lewis, Kaminski & Jones, Leon R. Kaminski and Mark L. Phillips, La Porte, for defendant-appellee.

MILLER, Judge.

This appeal is from a negligence action brought by appellant and cross-appellee Everett Hundt against the LaCrosse Grain Co., Inc., appellee and cross-appellant, following a fall by Hundt down a flight of stairs on property owned by LaCrosse. Hundt had been employed by LaCrosse for a number of years through an oral agreement to exterminate pests from various buildings located near the company's grain elevator in LaCrosse, Indiana. The jury found for Hundt and awarded $25,000 damages. However, the trial court set aside the verdict after determining it had erred in permitting testimony outside the scope of a pre-trial order, and this appeal by Hundt followed. Since we conclude the evidence in question pertaining to state building rules and regulations was not outside the ambit of the relevant pre-trial order, and since we also determine various other errors alleged by LaCrosse involving issues of contributory negligence and incurred risk as a matter of law are without merit, we reverse the trial court's decision granting a new trial. We also conclude, however, that a new trial is required on the sole issue of damages, since the trial court committed reversible error by giving an instruction on future medical expenses which was not supported by the evidence.

We initially relate the facts upon which Hundt based his claim for damages. One morning in March 1976, Hundt and his son Brad visited the LaCrosse Grain Company for the purpose of applying bird exterminating substances to the rafters of a storage shed on the premises pursuant to their agreement with LaCrosse. When the two arrived, they first went into a small building where the company had an office (and where the misadventure later occurred) and made their presence known to the company's manager, Jim Anderson. They entered the office through the front door, as they always had done in the past. After a few minutes, the Hundts left the building and proceeded to the storage shed located about 180 yards to the rear of the office. The evidence also revealed it was the first time the Hundts had done bird exterminating work on the premises, although the elder Hundt had visited the LaCrosse buildings approximately once a month since 1955 for the purpose of exterminating various other pests. Hundt stated the LaCrosse facility was one of 127 grain elevators (along with various restaurants, farms, stores, and taverns) where he regularly did exterminating.

The particular work they were doing that day required the use of highly toxic chemicals, and after one and one-half to two hours of working with the substance, when the job was complete, Hundt and his son returned to the office building to wash up. This time, however, they entered through the back door of the office building, which was the closest door to the shed where they had been working. Hundt's fall occurred in the building housing the company's office. In this regard, he stated he opened the back door of the building, walked forward a few feet, and then mistakenly opened the door to the basement instead of the washroom door, and his momentum from these actions caused him to fall down the basement stairs. Significantly, the uncontradicted evidence was that the basement door opened inward, there was no landing inside the door, and there was no handrail or other bracive device alongside the stairs.

At the trial, Hundt testified he did not remember falling, nor did he recall what direction he was looking when he opened the door, although his son, walking a few steps behind Hundt, testified he fell in "one continuous movement" because "(n)aturally he had to step into the door" to open it. A diagram of the office building introduced into evidence revealed two washrooms were in a hallway to the left of the door which Hundt entered, and photographs showed these were identified by signs over the doors stating "Ladies" and "Gentlemen," with the latter door being furthest from the rear entrance to the building. No sign was present on or over the door leading to the basement. In addition, there also was evidence, in the form of further testimony by Hundt, that when the rear door of the building is opened inwards, one's view of the washroom hallway is somewhat obscured because the door itself tends to block off the hallway. On cross-examination, Hundt admitted he knew where both the washroom and the basement were located and in fact had been in each of these areas perhaps 100 times in the approximately 20 years he had visited the LaCrosse buildings. He also acknowledged he was familiar with the fact the basement door opened inward and that the stairway had no landing or handrails. As noted above, however, he further testified he had never entered the building from the rear door, and in this regard, he acknowledged that if he had approached from the front of the building he would have known which door led to the basement.

Following the presentation of Hundt's case, LaCrosse filed a motion for judgment on the evidence, contending 1) Hundt was not entitled to recover because at the time of the injury he was a licensee as a matter of law to whom LaCrosse had breached no duty; 2) Hundt was guilty of contributory negligence as a matter of law; and 3) Hundt incurred the risk as a matter of law. The trial court rejected these motions and, as noted above, there was a verdict for Hundt, which ultimately was set aside when the trial court granted in part a Motion to Correct Errors filed by LaCrosse and ordered a new trial.

I. EVIDENCE ADMITTED WHICH WAS ALLEGEDLY OUTSIDE SCOPE OF PRE-TRIAL ORDER

Although both parties have appealed to this Court, we first consider Hundt's contention the trial court erred in ordering a new trial. In this regard, the trial court held "(t)he Motion to Correct Errors is sustained and new trial ordered" because "(t)he Court believes it committed error in allowing the Fire Marshall (sic) to testify outside the scope of the pre-trial order and in the admission of evidence incidental to his testimony." Hundt contends, by contrast, that the relevant testimony concerning safety regulations was not outside the scope of the pre-trial order, and with this contention we agree.

Because of its significance to this issue, we first set out the relevant portions of the court's pre-trial order. That order, entered pursuant to Ind. Rules of Procedure, Trial Rule 16(J) ¹, stated in part as follows:

"D. CONTENTIONS OF THE PLAINTIFF:

The plaintiff's contentions are that plaintiff's injuries were caused by the negligent acts and omissions on the part of the defendant which breached a duty of care which he owed to the plaintiff and that the plaintiff's injuries were a foreseeable result of said breach of duty and care. Said negligence consisted specifically of the defendant maintaining on its premises a dangerous condition consisting of a basement door which swings into the basement opening over a set of stairs going into the basement which does not have a landing at the top of the stairs so that the plaintiff could open the door, walk onto the landing and proceed down the stairs to the basement.

Further, that the stairs to the basement had no hand rail or other bracing device which the plaintiff could use to catch himself or prevent his fall once having stepped into the doorway opening to the basement.

E. CONTENTIONS OF THE DEFENDANT:

The defendant generally denies the allegations of the plaintiff's complaint and further asserts that it was not guilty of any of the negligence as alleged.

The defendant further alleges that at the time the incident occurred, the plaintiff was a licensee and on defendant's premises for the convenience, curiosity or entertainment of the plaintiff and that the defendant therefore owes no duty to the plaintiff other than to refrain from willful, wanton misconduct.

The defendant further alleges that the plaintiff was guilty of contributory negligence and that the plaintiff incurred the risk of his injuries.

K. WITNESSES OF PLAINTIFF:

14. Representative of Indiana Administrative Building Council."

As our courts have previously held, a pre-trial order such as that involved here delineating the issues of the case supplants the allegations raised in the pleadings and controls all subsequent proceedings in the case. City of Hammond, Lake County v Drangmeister, (1977) 173 Ind.App. 476, 364 N.E.2d 157. The issues become those found by the trial court's pre-trial order, and not the issues raised by allegations in the pleadings.

In the instant case, where Hundt contends the pre-trial order did not require the exclusion of relevant safety regulations, the question for our review is whether the trial court erred in granting a new trial based on the improper admission of such evidence. The sole duty of this Court where a new trial is granted is to examine the record to determine if (1) the trial court abused its judicial discretion; (2) a flagrant injustice has been done the appellant; or (3) a very strong case for relief from the trial court's ordering a new trial has been made by the appellant, here Hundt. Nissen Trampoline Co. v. Terre Haute First National Bank, (1976) 265 Ind. 457, 358 N.E.2d 974; Griffith v. Mathew, (1967) 141 Ind.App. 462, 229 N.E.2d 657, citing Bailey v. Kain, (1964) 135 Ind.App. 657, 192 N.E.2d 486.

The evidence which the trial court found to be outside the pre-trial order may be summarized as follows: During Hundt's case in chief, he called as a witness one William C. Goodwin, identified as a State Fire Marshal and member of the Administrative Building Council. Over objections by...