Malloy v. Commonwealth Highland Theatres, Inc.

• Decision Date: 09 October 1985
• Docket Number: No. 14696,14696
• Citation: 375 N.W.2d 631
• Parties: Emma Rene MALLOY, Plaintiff and Appellant, v. COMMONWEALTH HIGHLAND THEATRES, INC., Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 631

375 N.W.2d 631

Emma Rene MALLOY, Plaintiff and Appellant, v. COMMONWEALTH HIGHLAND THEATRES, INC., Defendant and Appellee.

No. 14696.

Supreme Court of South Dakota.

Argued March 6, 1985.

Decided Oct. 9, 1985.

Curt Ireland, Rapid City, for plaintiff and appellant.

Debra D. Watson of Wallahan Law Offices Rapid City, for defendant and appellee.

HENDERSON, Justice.

ACTION

This is an appeal by Emma Rene Malloy (Malloy), plaintiff-appellant herein, from a Judgment entered on a jury verdict in a personal injury action and from an Order denying motions for a new trial and judgment n.o.v. A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. Swiden Appliance v. Nat'l Bank of South Dakota, 357 N.W.2d 271, 277 (S.D.1984). Malloy thus raises the propriety of the denial of her motion for a directed verdict as one of her two contentions herein. Malloy's second contention is that the trial court erred in failing to grant a requested instruction on res ipsa loquitur. We affirm.

FACTS

In the early evening of September 10, 1982, Malloy was walking in front of the Elks Theatre (Theatre) in Rapid City, when a sudden, severe gust of wind blew out the plate glass window of the Theatre's display case striking Malloy upon the shoulder, head, and neck. Commonwealth Highland Theatres, Inc., defendant-appellee herein, is the owner and manager of the Elks Theatre. The display case is attached to and recessed in the outside of the Theatre building and its interior is accessible by moving one of two sliding glass panels. These panels each measured approximately 42 inches wide, 78 inches tall, and weighed 72 pounds. They were not locked but instead were freely movable and held in place by the display case's aluminum frame and track system. The amount of overlap between the top portion of the case frame and the glass panel was one-eighth inch. On the evening in question, the most exterior glass panel popped out in one piece and struck Malloy. Malloy was not cut and refused aid and assistance, assuring a Theatre employee that she was all right.

Malloy thereafter brought suit. By her amended complaint she alleged, inter alia, two theories of liability: the doctrine of res ipsa loquitur and specific acts of negligence. At trial, Malloy's counsel elicited testimony concerning the incident and its effect on her life. Malloy also examined Professor William Groves, Head of the Department of Mechanical Engineering at the South Dakota School of Mines. Professor Groves testified that the display window blew out because of a pressure difference created by the wind blowing into the case and pushing the window out, or by the wind blowing in front of the glass thereby creating a vacuum and sucking the window out. Groves stated that in consideration of the window's size, weight, and the one-eighth inch overlap at the top, the necessary pressure to cause the glass panel to bend out and disengage from the top track, and thus fly out in one piece, would be created by a 36-mile-per-hour wind. Groves further testified that in his opinion the one-eighth inch overlap on top was inadequate and that the display case was in an unsafe condition. Malloy also presented evidence that the highest wind speed recorded at the National Weather Bureau that day, located some ten miles from the Elks Theatre, was 45 miles per hour. Arnold Malloy, plaintiff's husband, characterized the velocity of the wind at the Theatre as being "severe" before the jury. The plaintiff, however, gave somewhat conflicting evidence to that of her husband, testifying that it was not a windy day, but, rather, "the wind come up all of a sudden." Malloy presented further evidence that Theatre's city manager was aware that the windows were not locked but were movable and that if left open, it was possible for the window to be sucked out.

On cross-examination, Professor Groves admitted that he could not calculate what an appropriate overlap would be; that he previously testified that the wind speed needed to create the required pressure was 113 miles per hour; that he initially incorrectly assumed that the display case opened into the Theatre lobby and was blown out by a wind therefrom; that downtown winds are increased in velocity because of building configurations; that he was not an expert in this field; and that a properly installed window could be blown out by the wind. In sum, he was convincingly impeached.

The Theatre also presented testimony by the Elks Theatre manager that she had inspected the display case twice that day, once in the morning and once in the afternoon, and found it to be closed and secure. Had the windows not been properly placed in their tracks, per Theatre's testimony, the window would not close at all. These were testified to as facts and not as professorial postulations. Theatre's testimony was that the display case was checked and cleaned, as a practice, once a week. Theatre further presented evidence concerning Malloy's injuries or lack thereof. The proximate cause of plaintiff's alleged injuries was a serious question for the jury to decide. There was conflicting evidence on function and permanent impairment; Malloy's case was unquestionably hurt by her own physician's medical report that plaintiff had no significant deficit in her function and no significant permanent impairment.

At the appropriate times, motions for a directed verdict were made and refused. Malloy also proposed jury instructions on the doctrine of res ipsa loquitur but the trial court refused to so instruct the jury. At the close of the very adversarial trial, after two full days of testimony, with experienced counsel advocating their client's cause, a jury verdict for Theatre was returned, the jury thereby finding that there was no negligence on Theatre's part. Judgment was duly entered thereon. It is from the trial court's refusal to direct a verdict for Malloy and its refusal to instruct the jury as to res ipsa loquitur from whence appeal is taken.

DECISION

I.

DID THE TRIAL COURT ERR BY DENYING APPELLANT'S MOTIONS FOR DIRECTED VERDICT, NEW TRIAL, AND JUDGMENT N.O.V.? WE HOLD THAT IT DID NOT.

"A verdict is appropriately directed when there is no question for the trier of fact. Thorstenson v. Mobridge Iron Works Co., 87 S.D. 358, 208 N.W.2d 715 (1973). However, it is seldom that a party having the burden of proving a proposition establishes such proposition as a matter of law." Ziebarth v. Schnieders, 342 N.W.2d 234, 236 (S.D.1984).

In the present case, Malloy had the burden of proving by a preponderance of the evidence: 1) that Theatre was negligent in the maintenance of its display case (duty owed and duty breached); 2) that said negligence was the proximate cause of her injuries; and 3) the extent and amount of the damages. See Goff v. Wang, 296 N.W.2d 729, 730 (S.D.1980). Malloy here contends the first two portions of her burden were met and that the trial court erred in failing to direct a verdict in her favor in this regard. In support of this contention, Malloy points to Professor Groves' testimony concerning the cause of the incident; his opinion that the one-eighth inch overlap was inadequate; and his opinion that the display case was in an unsafe condition. Malloy further directs this Court's attention to the testimony pertaining to the display windows which were not locked or supported by crossbars, and additionally, the testimony of Theatre's city manager that he was aware of downtown winds and, if left open, the window possibly could be sucked out. Malloy argues that this established Theatre's negligence as a matter of law; that said negligence was the proximate cause of injury; and that Theatre cannot defend on an Act of God theory. ^*

"A motion for a directed verdict should be granted only when it would be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence because reasonable men could draw but one conclusion therefrom." Cowan v. Dean, 81 S.D. 486, 498, 137 N.W.2d 337, 344 (1965).

It is only where facts are not in dispute or are such that reasonable men could not differ that the issues of negligence, contributory negligence and proximate cause become questions of law for court determination. Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342; Napier v. Pedersen, 175 Neb. 703, 123 N.W.2d 577. "In other words, these questions become a matter of law only when the facts from which the inferences can be drawn admit of but one conclusion. This occurs rarely."

DeBerg v. Kriens, 82 S.D. 502, 506, 149 N.W.2d 410, 412 (1967) (citation omitted).

[T]he rule of reasonable judgment must be applied to each case upon its particular facts, and, if the testimony in behalf of the party having the burden of proof is clear and full, not extraordinary or incredible in the light of general experience, and not contradicted, either directly or indirectly, by other witnesses or by circumstances disclosed, and is so plain and complete that disbelief therein could not arise by rational processes applied to the evidence, but would be whimsical or arbitrary, then, and in such case, it is not only permissible, but highly proper, to direct a verdict ....

Fluharty v. Midland Nat'l Life Ins. Co., 275 N.W.2d 347, 350 (S.D.1979) (quoting Jerke v. Delmont State Bank, 54 S.D. 446, 467, 223 N.W. 585, 594, 72 A.L.R. 7, 23 (1929)).

In the case at bar, Malloy, who had the burden of proof at trial, did not present testimony or evidence that was so clear, full, plain, complete, and uncontradicted that reasonable men could not differ on the issue of negligence. The jury, in point of fact, resolved all issues against Malloy by its verdict. Malloy's theory of negligence and liability rested almost entirely on Professor Groves' testimonial explanation of the cause of the incident and Groves' opinion that the frame and overlap were inadequate and the display case unsafe. These were...