Palmtag v. Gartner Const. Co.

• Decision Date: 25 March 1994
• Docket Number: No. S-92-387,S-92-387
• Citation: 513 N.W.2d 495,245 Neb. 405
• Parties: Janet A. PALMTAG, Appellee, v. GARTNER CONSTRUCTION CO., a Nebraska Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 495

513 N.W.2d 495

245 Neb. 405

Janet A. PALMTAG, Appellee, v. GARTNER CONSTRUCTION CO., a Nebraska Corporation, Appellant.

No. S-92-387.

Supreme Court of Nebraska.

March 25, 1994.

Syllabus by the Court

1. Directed Verdict: Waiver: Appeal and Error. A defendant who moves for a directed verdict at the close of the plaintiff's evidence and, upon the overruling of such motion, proceeds with trial and introduces evidence waives any error in the ruling on the motion for a directed verdict.

2. Motions to Dismiss: Directed Verdict. A motion to dismiss for failure to prove a prima facie case should be treated as a motion for a directed verdict.

3. Trial: Directed Verdict. A motion for judgment notwithstanding the verdict may not properly be sustained in the absence of a motion for a directed verdict made at the close of all the evidence, which motion should have been sustained because of a want of evidence.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible error in a trial court's refusal to give a requested instruction, one has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

5. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating a reversal.

6. Licensee: Words and Phrases. One who is privileged to enter or remain upon land by virtue of the possessor's consent is a licensee.

7. Licensee: Words and Phrases. A licensee is on the premises of another for the licensee's own interest or gratification; such person is exercising the privilege solely for that person's own convenience or benefit and does not stand in any contractual relation with the owner or occupant of the premises.

8. Invitor-Invitee: Words and Phrases. One who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant for the mutual advantage of both parties is an invitee.

9. Invitor-Invitee: Words and Phrases. One who is expressly or impliedly invited or permitted to enter or remain on the premises in the possession of another for a purpose directly or indirectly connected with the business of the possessor or with business dealings between them is a business visitor or invitee.

10. Licensee: Invitor-Invitee: Words and Phrases. The distinction between invitees and licensees rests on the purpose for which the invitation was extended; if it is an invitation for the personal pleasure, convenience, or benefit of the person enjoying the privilege, the person receiving it is a licensee; if the invitation relates to the business of the one who gives it or for the mutual advantage of a business nature for both parties, the party receiving the invitation is an invitee.

11. Jury Instructions. While instructions withdrawing consideration of material issues of fact presented by pleadings and evidence are erroneous, the trial court must eliminate all matters not in dispute and submit only the controverted questions of fact on which the verdict must depend.

12. Trial. When reasonable persons can reach only one conclusion, questions of fact which would normally be submitted to a jury become questions of law for the court to decide.

13. Trial. Where facts are conceded, undisputed, or are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question as a matter of law, rather than submit it to the jury for determination.

14. Words and Phrases. Reasonable care is that degree of caution which an ordinary, or reasonably prudent, person would exercise under like circumstances.

15. Jury Instructions: Appeal and Error. While ordinarily the failure to object to instructions after they have been submitted for review will preclude raising an objection thereafter, a trial judge is nonetheless under a duty to correctly instruct on the law without any request to do so, and an appellate court may take cognizance of plain error and thus set aside a verdict because of a plainly erroneous instruction to which no previous objection was made.

Alan L. Plessman, Lincoln, for appellant.

James L. Schneider, of Kennedy, Holland, DeLacy & Svoboda, Omaha, and Otto H. Wellensiek, Syracuse, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

CAPORALE, Justice.

I. STATEMENT OF CASE

In this negligence action, the district court, pursuant to verdict, entered judgment in favor of the injured plaintiff-appellee, Janet A. Palmtag, against the defendant-appellant, Gartner Construction Co. Defendant appealed to the Nebraska Court of Appeals, and we, under the authority granted by Neb.Rev.Stat. § 24-1106(3) (Cum.Supp.1992), removed the matter to this court in order to regulate the caseloads of the appellate courts. Defendant asserts, in summary, that the district court erred in (1) overruling its motion made at the close of plaintiff's evidence to either dismiss the action or direct a verdict in defendant's favor, (2) refusing to grant defendant's subsequent motion for judgment notwithstanding the verdict, and (3) instructing the jury. Because the record sustains the last assignment of error, we reverse the judgment of the district court and remand the cause for further proceedings.

II. FACTS

Plaintiff and her husband, John Palmtag, hired defendant to remodel their newly purchased home under an oral arrangement whereunder defendant was to be paid for time and materials. Defendant was given the keys to the house, and plaintiff and her husband visited the structure to monitor the progress of the work; the husband visited on a daily basis and plaintiff once or twice a week.

Defendant's employees were usually present during the husband's visits on workdays, and the house was open. Even during those times when the employees were not around, the house was usually left open, and the husband would be able to "just go in." According to the husband, defendant's employees never limited or restricted where he could go. Plaintiff had once met a Caroline Gartner at the house to look at tile and possibly paint colors.

The remodeling included the removal of a spiral staircase which was located in the main floor entry area and descended therefrom to the basement through a 5-foot-square opening.

The staircase was made up of pie-shaped treads. Attached to the narrow end of each tread was a round disk which when stacked one on top of another formed a center post with the treads fanned around it. The top disk fit up under the main floor landing. Working without reference to any plans, David Njus, an employee of defendant, disassembled the staircase by beginning with the top tread and working his way down. As he took out each tread and disk, the center post was whittled down.

A handrailing located around the staircase was taken out after the treads and center post were removed, leaving an empty opening in the floor. Njus also removed the plywood aprons and angle irons which were located along the underside of the landing, thus leaving the plywood floor around the opening jutting "something like a diving board out in the air."

After Njus removed the treads, aprons, and angle irons, he wondered how springy the outer edge of the flooring would be and checked it before leaving that evening by reaching up from the basement and hanging his full weight, 165 pounds, on it; nothing gave way. He then hung a wire and plywood barricade across the handrailing and walked on top of the landing area; he felt no sensation of weakness in it. In Njus' opinion, the landing felt solid, and he was "not anymore" concerned about the landing "not holding anybody's weight." Njus believed the landing would stay in place because he thought it was a contiguous part of the rest of the floor of the house. The landing, however, was a separate piece of wood which had been toenailed into the rest of the floor.

The barricade Njus hung was suspended diagonally across the landing from handrail to handrail on the main floor. It consisted of a wire, in the middle of which was hung a piece of plywood approximately 18 inches by 6 to 8 inches in size. It did not cover the hole and left half of the landing unguarded. No warning signs were attached to the barricade.

Plaintiff and her husband had arranged to meet at the house to review the remodeling work. Plaintiff, who was then 8 months pregnant and weighed 200 pounds, arrived at the house at about 5 p.m., accompanied by her 3-year-old son. She met and spoke briefly with Njus and an unidentified employee of defendant, who were leaving for the day.

As she walked through the entry area, she did not know the staircase had been removed, but noticed "a wire with something hanging on it" and paused approximately 8 to 9 inches from the wire. She then saw that the staircase was gone, at which time she was probably about a foot from the opening. Plaintiff warned her son not to get close to the stairwell. As she paused long enough for her son to pass by, the landing collapsed. As a consequence, she fell to the basement floor and landed on her seat and hands, after which her back and head hit the floor. Her face hit something on the way down.

When the husband found plaintiff, she was in extreme pain and somewhat delirious. Plaintiff could not feel the fetus move, and both she and her husband thought she had ruptured her uterus. Plaintiff was hospitalized for 3 days following the accident and was diagnosed as having a 20-percent compression fracture of her 12th thoracic vertebra, a torus fracture...