Peters v. Silver Creek Traders, Inc., No. A06-1894 (Minn. App. 8/14/2007)
| Decision Date | 14 August 2007 |
| Docket Number | No. A06-1894.,A06-1894. |
| Parties | Elma Peters, et al., Respondents, v. Silver Creek Traders, Inc., Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Crow Wing County, File No. C2-04-1325.
Patrick M. Krueger, Borden, Steinbauer, Krueger & Knudson, P.A., (for respondents)
Michael D. LaFountaine, James S. McAlpine, Quinlivan & Hughes, P.A., (for appellant)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
UNPUBLISHED OPINION
Appellant Silver Creek Traders, Inc. (Silver Creek), challenges the district court's denial of appellant's pretrial motion for summary judgment and posttrial motions for JMOL, new trial, and remittitur. Appellant argues that the landing where respondent was injured was open and obvious; that there was not substantial evidence at trial to support the jury's finding of appellant's negligence; that the district court erred by excluding evidence as hearsay; and that the damages awarded shocked the conscience. Because the district court did not err by denying summary judgment, JMOL, new trial, or remittitur, we affirm.
On August 9, 2002, respondent Elma Peters (Peters) was shopping with family and friends at Silver Creek Traders (appellant) when she fell down a flight of stairs. She ascended to the second floor of the store (the loft) by means of a front, open staircase. The loft was filled with merchandise. She and her companion, Hodach, weaved their way through the merchandise, walking across the loft to a corner where they had spotted some skis and ski poles. Peters perceived the skis and poles to be displayed on the same level as the floor upon which she was standing, and across which she had just walked. However, the skis and poles were actually located on a stairwell landing, which was seven inches below the floor upon which she stood.
Peters testified that she was walking towards the skis, approached the skis, and fell into the landing and down the stairs. She did not know how she fell but testified that she did not trip or catch her foot on anything; Peters was looking at the skis and the next thing she knew, she was falling backwards. Hodach, who was standing next to Peters before she fell, also testified that she did not see the drop-off. Before she fell, Peters did not see the stairs and did not know that they existed. Peters's brother-in-law, Phillip Peters, testified that he was "darn near on top of [the stairs]" before he saw them, and they surprised him. He did not recall seeing the drop-off to the landing at all. There were no signs to warn or direct customers out of the area and there was no warning tape on the floor to mark the drop-off.
Appellant displayed the skis in a stairwell landing of the store, which was seven inches lower than the display floor. The store did not usually display merchandise in this area. Normally, customer access to this landing was purposely blocked by merchandise. At trial, Ivan Russell, professional engineer, registered safety professional, and former Director of Minnesota OSHA, testified that the difference in height between the display floor and the floor of the landing (seven inches) was not open and obvious and constituted a significant safety hazard. Russell testified that people cannot recognize a one-step change in elevation of a walking surface that is less than 12 inches. Russell also identified the placement of the merchandise as an additional safety hazard.
Another expert, Dr. Richard Patten, a human factors expert, testified that it would have been difficult for Peters (or anybody) to see the drop-off because her eyes were still adjusting to the dim lighting ("dark adaptation"); her attention was diverted to displayed merchandise; the store had done nothing to make one aware of this drop-off through contrast or warning; and the drop-off would not have been within Peters's peripheral vision.
Peters was transported by ambulance to the hospital. As a result of Peters's fall down the stairs, she suffered fractures of both arms, a fractured jaw, and fractured cervical vertebrae. She was then transferred to a neurosurgeon. A halo fixation device was applied to Peters's head, and she was placed into a vest to house the halo; she also had casts applied to both wrists. Later it was discovered that her jaw had been broken, and her jaw had to be wired shut. She was unable to care for herself, and her husband took care of her personal needs at all times: he bathed her, washed her hair, cleaned the pins on the halo device twice a day, trimmed her hair around the pin sites, replaced the rubber bands on the wires on her teeth twice a day, cooked for her, and so on.
In December 2002, the halo device was removed, and Peters was placed in a soft cervical collar. She wore the soft collar until January 2003, when she saw her doctor again, who described Peters at the time as having an altered level of consciousness. An MRI was performed, which revealed that Peters had developed brain abscesses at each of the four sites where the pins were inserted into her skull in order to secure the halo fixation device. Peters had surgery during which her skull was opened in order to remove portions of dead bone and to drain pus from her brain. On January 22, 2003, Peters again underwent surgery in order to remove more pus from her brain. By April 25, 2003, the abscesses had healed.
Peters's recovery from the surgery involved re-learning how to read, do math, and spell; she also had to re-learn how to tell time, decipher colors, dress, and feed herself. After three weeks, Peters was sent home with intravenous antibiotic therapy, which her husband administered through a catheter in her chest for six weeks, three times per day. It took Peters two years to recover from her injuries.
Appellant moved for summary judgment, arguing that the landing was open and obvious. The district court denied appellant's motion, finding that Peters's deposition testimony established that she could not see the drop-off and thus a question of fact existed as to whether this drop-off was open and obvious.
After a trial, the jury found that appellant was 100% responsible for Peters's injuries. The jury awarded respondents damages in the amount of $177,140.35 for past medical expenses and $ 266,656 for pain, suffering, disability, and emotional distress up to the time of trial; her husband was awarded $65,328 for loss of Peters's services and companionship to the date of the verdict. Appellant filed posttrial motions for judgment as a matter of law (JMOL), remittitur, or in the alternative, a new trial. The district court order of August 11, 2006, denied appellant's posttrial motions on the basis that sufficient evidence was offered at trial to support the jury's finding that appellant's negligence was the proximate cause of respondent's injuries, and the damages awarded were based on the extent of the injuries suffered and did not shock the conscience.
This appeal follows.
Appellant argues that the district court erred by denying its motion for summary judgment, arguing that as a matter of law appellant is not responsible for respondents' alleged injuries because the landing area and staircase are open and obvious. In an appeal from summary judgment, this court will examine whether there are genuine issues of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, an appellate court views the record in the light most favorable to the nonmoving party and accepts as true the factual allegations of that party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
Summary judgment is appropriate when a party fails to make a showing sufficient to establish the existence of an element essential to the party's case. Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998). The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).
"[I]t is generally recognized that issues of negligence and contributory negligence are questions of fact and are not ordinarily susceptible of summary adjudication either for or against the claimant," but "it is not to be overlooked that in proper cases summary judgment may be entered where the material facts are undisputed and as a matter of law compel only one conclusion." Sauter v. Sauter, 244 Minn. 482, 486, 70 N.W.2d 351, 354 (1955). "[W]hether a condition presents a known or obvious danger is a question of fact." Olmanson v. LeSueur County, 693 N.W.2d 876, 881 (Minn. 2005). Here, the facts were not undisputed because the parties did not agree on the factual issue of whether the landing area and stairway were open and obvious.
In order to establish a prima facie negligence claim, respondent Peters was required to show the following: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). A land possessor who holds land open to the public has a duty to use reasonable care for the safety of entrants. Donaldson v. Young Women's Christian Ass'n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995). "Reasonable care includes the duty to inspect and repair the premises and, at a minimum, to warn persons using the premises of unreasonable risks of harm." Sullivan v. Farmers & Merchants State Bank of New Ulm, 398 N.W.2d 592, 594-95 (...
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