Rittenour v. Gibson, 20020053.

• Decision Date: 19 February 2003
• Docket Number: No. 20020053.,20020053.
• Citation: 2003 ND 14,656 N.W.2d 691
• Parties: Cindy RITTENOUR and Donald Rittenour, Plaintiffs and Appellees, v. Orville GIBSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

656 N.W.2d 691

2003 ND 14

Cindy RITTENOUR and Donald Rittenour, Plaintiffs and Appellees, v. Orville GIBSON, Defendant and Appellant.

No. 20020053.

Supreme Court of North Dakota.

February 19, 2003.

Lee J. Balerud, Minot, N.D., for plaintiffs and appellees.

Lawrence R. Klemin of Bucklin, Klemin & McBride, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Orville Gibson appeals from the Northwest Judicial District Court judgment denying his motion for a new trial. Concluding the district court erred in instructing the jury, we reverse the judgment and remand for a new trial.

I

[¶ 2] In 1997 Gibson purchased a mobile home in the Palmer Trailer Court, located between the city of Minot and Minot Air Force Base, and has used it as a rental unit since the date of purchase. Cheryl Lynn Jackson and her sister agreed to rent the unit starting February 1, 1999. Neither Jackson nor her sister were joined in this action.

[¶ 3] Cindy and Donald Rittenour were friends of the Jacksons. On May 8, 1999, as Cindy Rittenour was leaving Jackson's home after a visit, her right leg broke through the floorboard in the entry shed. Her left leg twisted beneath her. Rittenour was taken to the hospital and was treated for her injuries. At the time of the accident, Rittenour weighed over 350 pounds.

[¶ 4] Dr. Tyson Williams, a podiatrist in Minot, further examined Rittenour on May 25 and July 6 of 1999. He also examined her on October 10 and November 9 of 2000, at which times x-rays and bone scans were taken.

[¶ 5] The Rittenours served the summons and complaint on Gibson in September 1999. On November 1, 1999, Gibson served his first set of interrogatories, which included six interrogatories requesting information regarding experts or potential expert witnesses. The Rittenours answered the interrogatories requesting information on experts investigating, examining, reporting, or being retained for the purpose of trial preparation by responding, "See Medical Records." To the interrogatory asking for the identity of the expert that would testify at trial, the Rittenours responded, "Unknown at this time."

[¶ 6] On January 21, 2000, the Rittenours supplemented their answers to Gibson's interrogatories and provided a list of medical providers who had treated Cindy Rittenour for her injuries incurred in the accident. They did not, however, supplement the answer on which experts would testify at trial. On July 13, 2000, at the pre-trial conference, the Rittenours identified fourteen potential witnesses. Dr. Williams was not listed among the fourteen. The district court set October 1, 2000, as a discovery cutoff date. The Rittenours supplemented their answers again on September 28, 2000. They listed one definite witness, who at trial ended up not testifying, and three potential witnesses, one of whom was Dr. Williams. The Rittenours stated Dr. Williams was expected to testify as to the impairment, disability, permanency, and effect of Rittenour's injuries on her daily living activities, as well as describe the injuries she suffered as a result of the accident.

[¶ 7] On October 2, 2000, Gibson moved in limine to exclude the entire testimony of Dr. Williams because the Rittenours had not seasonably supplemented their answers to interrogatories. The motion was denied. Before trial, Gibson obtained through medical release forms the medical records of Rittenour's May 25 and July 6, 1999, visits to Dr. Williams. On November 13, a seven-day jury trial began. It was not until Rittenour's testimony at trial that Gibson became aware of Rittenour's October 10 and November 9, 2000, visits to Dr. Williams. At that time, Gibson orally again moved in limine to exclude Dr. Williams' entire testimony because of the absence of medical records of Rittenour's last two visits to Dr. Williams. The district court denied the motion but granted a one-day continuance for Gibson to review the medical records with his expert. Dr. Williams testified to Rittenour's future economic and noneconomic damages. Gibson objected, arguing his testimony was speculative and hearsay. The objection was overruled. At the conclusion of the plaintiff's case, and at the close of the case, Gibson moved for judgment as a matter of law. Both motions were denied. At trial Jackson testified Gibson told her of the defective floorboard and stated he would fix it when time permitted. Gibson testified he did not know about the defective floorboard before or after the Jacksons had moved into the trailer.

[¶ 8] Gibson asked for a jury instruction on the tenant's duty to warn, and took exception to the final instructions for not having included such an instruction.

[¶ 9] The jury awarded the Rittenours damages of $408,068.05, which included:

a. Past economic damages of $8,068.05;

b. Future economic damages of $300,000.00;

c. Past noneconomic damages of $50,000.00; and

d. Future noneconomic damages of $50,000.00.

The jury found Gibson 35% responsible for Rittenour's injuries, Rittenour 25%, Cheryl Jackson 30%, and others 10%. On December 22, 2000, judgment was entered in favor of the Rittenours and against Gibson in the amount of $144,883.81.

[¶ 10] Gibson moved for a new trial, asserting the district court erred in denying his request for a jury instruction on tenant liability, in denying his motion in limine to exclude the testimony of Dr. Williams, in denying the admittance of photographs, in denying his character witness an opportunity to testify, and in allowing the jury award. The motion was denied. Gibson appeals.

[¶ 11] The district court had jurisdiction under N.D.C.C. § 27-05-06 and N.D. Const. art. VI, § 8. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 12] Gibson appeals the district court's denial of his motion for a new trial. In a motion for a new trial, the district court may, "`within limits, weigh the evidence and judge the credibility of witnesses.'" Perry v. Reinke, 1997 ND 213, ¶ 21, 570 N.W.2d 224 (quoting Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982)). "When a motion for a new trial is made and the reason given in support of the motion is there was insufficient evidence to justify the verdict, the moving party is asking the trial court to decide whether or not the verdict is against the weight of the evidence." Id. "A verdict is against the weight of the evidence when it is not supported by substantial evidence." Id. at ¶ 22 (citing Olmstead v. First Interstate Bank, 449 N.W.2d 804, 807 (N.D.1989)).

[¶ 13] When reviewing a motion for a new trial, we do not apply the same standard as the district court and will not reweigh the evidence on appeal. Id. at ¶ 21. We review only whether the district court abused its discretion. Id. "An abuse of discretion occurs when the district court is unreasonable, arbitrary, or unconscionable in rendering its decision." Id.

A

[¶ 14] Gibson argues the district court erred in giving jury instructions that did not accurately reflect North Dakota's current law on a tenant's duty to a social guest to warn of dangerous conditions on the premises.

[¶ 15] "`Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.'" State v. Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658 (quoting State v. Smaage, 547 N.W.2d 916, 921 (N.D.1996)). When considering the correctness of jury instructions, we will view them as a whole. Id. The instructions will be allowed if, as a whole, they fairly advise the jury of the law on the essential issues in the case. Id. In evaluating whether the district court abused its discretion in instructing the jury, we will first determine whether the district court committed error in its instruction, and then, if so, whether that error was harmless. State v. Huber, 555 N.W.2d 791, 793 (N.D.1996); Interest of B.G., 477 N.W.2d 819, 822 (N.D.1991). Rule 61, N.D.R.Civ.P., states our harmless-error standard in civil cases:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

[¶ 16] Gibson argues that the district court erred by allowing a jury instruction on the duty of a landlord to inform a social guest about dangerous conditions on the premises without also allowing an instruction about the duty of a tenant to inform a guest if the tenant knows of a dangerous condition on the premises. Altogether, the parties requested six pattern jury instructions pertaining to landlord and tenant responsibilities. There were two pattern instructions on the obligations to maintain the premises—one on a landlord's obligations and one on a tenant's obligations; two pattern instructions on the duty to maintain the premises—one on a landlord's duty and one on a tenant's duty; and two pattern instructions on the duty to warn of unsafe conditions of premises—one on an owner's duty and one on a possessor-of-the-land's duty. All of the instructions were submitted by the court to the jury in the final instructions except North Dakota Pattern Jury Instruction 17.10, regarding the duty of the possessor of land to warn of unsafe conditions of premises, which states:

A possessor of land owes a duty to a lawful entrant upon the premises to use reasonable care to [inspect and repair the premises] [or] [warn the entrant] in order to protect the entrant from an unreasonable risk of harm caused by the condition of the premises while the entrant is on the premises.

In determining reasonable care of the landowner, the

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