Wikert v. Northern Sand and Gravel, Inc.
| Decision Date | 10 March 1987 |
| Docket Number | No. C5-86-1111,C5-86-1111 |
| Citation | 402 N.W.2d 178 |
| Parties | Prod.Liab.Rep. (CCH) P 11,314 Phyllis WIKERT, Appellant, v. NORTHERN SAND AND GRAVEL, INC., Respondent, June Newhouse, Defendant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The trial court's exclusion of evidence of subsequent remedial measures taken by respondent did not prejudice appellant and was not error.
2. The trial court properly dismissed appellant's punitive damages claim where there was no evidence of willful or wanton conduct on the part of respondent.
Daniel E. Warner, Broeker, Mihalchick & Blumer, Bloomington, for appellant.
Romaine R. Powell, Pavell, Lang & Schueppert, Bemidji, for respondent.
Heard, considered and decided by FORSBERG, P.J., and SEDGWICK and HUSPENI, JJ.
This case was originally brought under theories of strict liability, negligence, and breach of warranty. At the time of trial, appellant settled with defendant Newhouse and released Newhouse by Pierringer release. Respondent moved for summary judgment and sought a motion in limine to preclude appellant from introducing evidence at trial of respondent's post-accident conduct of advising persons concerning the nature of concrete. Appellant brought a motion to strike respondent's motion for summary judgment on the basis of untimely service. The trial court granted respondent's motion in limine and motion for summary judgment dismissing appellant's punitive damage claim. Appellant settled her negligence claim for $20,000 in compensatory damages, expressly reserving the right to appeal dismissal of her punitive damages claim. We affirm.
On October 27, 1982, as a result of kneeling in cement for over 2 hours while assisting a neighbor lay a concrete floor, appellant Phyllis Wikert was chemically burned and permanently scarred by ready-mix concrete supplied by respondent Northern Sand and Gravel, Inc. Appellant, who was inexperienced in working with wet concrete, was not wearing protective clothing at the time, because she was unaware of possible dangers of working with the concrete and had not been informed of any precautionary measures to avoid injury.
Evidence proffered by appellant tended to show that respondent was aware of the dangers associated with working with concrete before 1982.
Both Fischers denied having any knowledge of the potential for injury from cement powder, or the hazards associated with working with cement.
Irvin Christiansen, an employee of respondent, brought the cement to the construction site on the day appellant was injured, and was present for about an hour after delivery. Whether Christiansen had observed appellant working unprotected in the concrete, however, was disputed. Christiansen testified he was not familiar with the hazards of working with wet concrete. He did not warn appellant of the possible danger of her prolonged exposure to the cement, nor of precautions to be taken.
As a result of the injuries she sustained, appellant sued respondent based on theories of strict liability, negligence, and breach of warranty. Appellant also claimed punitive damages.
The case was set for trial on May 6, 1986. Respondent, by motion dated April 28, 1986, moved the court for summary judgment and dismissal of appellant's claims of strict liability, breach of warranty, and punitive damages. Respondent also sought an order in limine precluding appellant from introducing evidence concerning any activities or measures taken by Northern Sand & Gravel, after the date of the accident, to advise persons concerning the nature of concrete. Respondent contended that this evidence was inadmissible because it was evidence of subsequent remedial measures, was not relevant, and its prejudicial effect would outweigh any probative value.
Appellant moved, pursuant to Rule 56 and 6.05, to strike respondent's summary judgment motion on the grounds that it was not timely served, and that there were genuine issues of material fact in dispute. Appellant withdrew her claims alleging strict liability and breach of warranty, and they were dismissed by the court.
After a brief hearing at which appellant was permitted to make an offer of proof, the trial court granted respondent's summary judgment and dismissed appellant's punitive damages claim based on a finding that appellant had failed to sufficiently establish the "willful indifference to the rights and safety of others" necessary to permit a punitive damages claim. The court also granted respondent's motion in limine and excluded evidence of respondent's subsequent remedial measures.
After the trial court's rulings, appellant and respondent settled the negligence claim. Judgment was entered in favor of respondent dismissing appellant's claims for strict liability, breach of warranty, and punitive damages. Appeal is taken from that judgment.
1. Did the trial court err in granting respondent's motion in limine and excluding evidence of subsequent remedial measures taken by respondent?
2. Did the trial court err in granting respondent's summary judgment and dismissing appellant's claim for punitive damages?
Respondent contends this issue is not properly before this court because a motion in limine is not an appealable order. As the judgment in this case is clearly appealable, the order is properly before the court.
At the time of trial, appellant indicated she would introduce evidence that after appellant's accident, respondent began stamping all delivery tickets given to customers with a warning concerning the possibility of injury from working with wet cement. The trial court granted respondent's motion in limine, based on Minn.R.Evid. 407, and excluded all evidence of later actions by respondent after the date of the occurrence involved here, to advise persons concerning the dangers of working with concrete.
Rule 407 states:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Appellant argues that the evidence introduced was not evidence of a subsequent remedial measure. Appellant contends that this evidence was to prove punitive damages based on the attitude and conduct of respondent upon discovery of their misconduct, the feasibility of precautionary measures and for impeachment purposes. Minn.Stat. 549.20, subd. 3 (1984), Minn.R.Evid. 407.
Rulings on the admissibility of evidence are left to the sound discretion of the trial court, and its determination controls "unless practical justice requires otherwise." Colby v. Gibbons, 276 N.W.2d 170, 175 (Minn.1979) quoting Hiedeman v. Hiedeman, 290 Minn. 210, 217, 187 N.W.2d 119, 124 (1971). Rule 103(a) of the Rules of Evidence states that "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *." Minn.R.Evid. 103(a).
It is clear in this case that exclusion of the evidence did not affect a substantial right of appellant. The purposes for which appellant desired to introduce this evidence: to show feasibility of precautionary measures, and for impeachment, could have been achieved by evidence and testimony concerning pre -accident circumstances and knowledge. A showing of attitudes and conduct upon learning of the misconduct was also possible through other means. Since the exclusion of the evidence had little or no effect on the case as a whole, the trial court's ruling did not affect a substantial right of appellant, and the ruling was not error.
Appellant contends that the trial court erred by granting summary judgment when the respondent failed to follow the notice requirements of Minn.R.Civ.P. 56.03. Rule 56.03 provides that a summary judgment motion shall be served at least 10 days before the time fixed for the hearing. Rule 6.05 adds 3 days to the prescribed period if the motion is served by mail, as it was in this case. There is no dispute that respondent's motion was not timely served. Appellant received the motion by mail 8 days before the hearing date.
Appellant correctly notes that the stated time for the notice in Rule 56.03 is mandatory, absent a clear waiver by the adversary. McAllister v. Independent School District No. 306, 276 Minn. 549, 149...
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...not been demonstrated here. 16. The Court's holding, in Beniek, is consistent with the earlier holding in Wikert v. Northern Sand and Gravel, Inc., 402 N.W.2d 178(Minn.App.1987), rev. denied (Minn., May 18, 1987), where the plaintiff had sustained chemical burns from exposure to the defenda......
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...prejudice can be shown by the objecting party, the exercise of summary judgment at pre-trial is sound); Wikert v. Northern Sand & Gravel, Inc., 402 N.W.2d 178, 182 (Minn.App.1987) (trial court did not err in considering summary judgment motion filed 8 days before hearing date where no mater......
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..."[T]he stated time for the notice in Rule 56.03 is mandatory, absent a clear waiver by the adversary." Wikert v. N. Sands & Gravel, Inc., 402 N.W.2d 178, 182 (Minn. App. 1987), review denied (Minn. May 18, 1987). But, an untimely summary judgment motion may be heard and granted when the opp......