No. 91-019
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mort Goldstein; Goldstein Law Firm, P.C., Havre,
Montana
For Respondents:
William J. Gregoire, Joseph P. Gilligan; Smith,
Walsh, Clarke & Gregoire, Great Falls, Montana
Submitted on Briefs: August 1, 1991
Decided: September 24, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Twelfth
Judicial District, State of Montana, County of Hill. This appeal
is from a directed verdict in favor of Adeline Nelson and a jury
verdict finding no liability on the part of Donald Nelson. From
this judgment Irvin glBuzzgl
Buskirk appeals. We affirm.
In the summer of 1982, Adeline Nelson employed several
students of Northern Montana College to construct a garage on her
property. She employed a Mr. Wills and another college student to
construct her garage from a "garage kitw from the local lumber
yard. This kit included all the materials necessary for the
construction of a two-car garage, including a sixteen foot wide
sectional garage door manufactured by Frantz Manufacturing Company.
The garage door operated by means of two large "extension springs"
which were located on each side of the garage door and suspended
from the ceiling of the garage. These extension springs were used
to counter the weight of the garage door for ease of opening and
closing. A cable attached to these extension springs ran from the
springs to the top of the garage door, over a pulley, and then down
to the bottom of the garage door where it was attached to the
bottom "roller bracket." Because the garage door weighed
approximately 300 pounds, the springs on each side had a lifting
power of 150 pounds when the garage door was fully closed. The
roller brackets were located at the very bottom of the garage door
to which the cables were attached, and were bolted to the garage
2
door with two nuts and bolts for each bracket.
Approximately six months after the garage had been built, in
November of 1982, Adeline attempted to open her garage door, when
the garage door bound up and the bottom alrailrt
(board) at the south
end of the garage door developed a foot long split or crack in the
wood. Adeline contacted a Mr. Hewitt, owner of "Hewitt Remodeling
Service" in Havre, Montana, to repair the cracked bottom rail. Mr.
Hewitt installed weatherstripping on the bottom of the garage door
to prevent snow or water from coming into the garage under the
door. He also bolted metal strapping perpendicularly over the
crack, on the inside and outside of the door, thus holding the
bottom rail together. Thereafter, the garage door continued to
function properly up until the time of the accident.
In December of 1982, Adeline's son, Donald Nelson, who lived
with his mother at her home, purchased an electric garage door
opener for her as a Christmas present. To help him install the
electric garage door opener, Donald contacted a friend, Irvin
"Buzzu Buskirk, the appellant. The installation took several days
in January of 1983. Initially, Donald and the appellant attached
and installed the garage door opener itself. Then, after
electricity was brought to the garage door opener, the appellant
attached the electrical wires to the opener. Thereafter the
appellant and Donald tested the opener by opening and closing the
garage door.
While they were testing the door, it became jammed, and the
bottom rail on the north end of the door cracked or separated.
This crack or separation was directly underneath the bottom "roller
platev' to which the extension spring cable was attached. The
panels in the bottom of the door began to fall out, but the
appellant and Donald were able to get the panels back into the
door, and lowered the door to its fully-down position. The
appellant then attempted to repair the crack in the door by using
some metal strapping left over from the installation of the garage
door opener. The appellant intended to repair the crack in a
manner similar to the way Mr. Hewitt had repaired the garage door's
south end crack. In the process of attempting to make the repairs,
Donald went around to the outside of the garage to pry up on the
bottom of the door. The appellant was left inside the garage. As
the two worked on the problem, unbeknownst to Donald, the
appellant, in order to determine how to repair the crack, got down
on his hands and knees to look at the crack. The appellant's
expert testified that the appellant's head must have been some
nineteen inches from the floor of the garage and within four to six
inches from the garage door. The appellant was suddenly struck in
the face as the spring-loaded mechanism of the door broke loose,
resulting in severe injury to appellant's eye.
This case has been in the courts for a considerable period of
time, having begun under the 1983 comparative negligence statute
that required the apportionment of fault among the liable parties.
This is the second time that this case has been before this Court.
In 1988, the trial judge then sitting, granted summary judgment in
favor of the defendants on the issue of a "release" that was
allegedly signed by the appellant releasing the defendants through
their carrier from all liability for the sum of $1,500 for
appellant's blinded eye. That summary judgment was reversed in
Buskirk v. Nelson (1989), 237 Mont. 455, 774 P.2d 398.
The appellant has submitted nine issues for our consideration.
The issues are consolidated and set forth as follows:
1. Was there substantial evidence in the record for the jury
to find Donald Nelson to be negligence free?
2. Was it error for the court to give a directed verdict in
favor of Adeline Nelson where the appellant alleged that Adeline
was :
(A) negligent for his injuries;
(B) liable for the alleged negligent acts performed by
independent contractors she hired;
(C) liable to the appellant for failing to provide Ira safe
place to workH for the appellant;
(D) vicariously liable for the appellant's injuries under a
theory of joint enterprise, partnership, principal/agent, or
landlord/tenant?
3. Did the trial court err in not giving appellant's
instructions 22A, 22B, 24A, 25A, 31A and 41 to the jury?
After carefully considering the transcript and the issues set
forth above, we conclude that the appeal hinges upon whether there
was substantial evidence for the jury to find Donald Nelson
negligence free. If so, then the issue of vicarious liability for
his mother, Adeline, is without merit, and is moot under the
theories of partnership, joint venture, joint enterprise or
landlord/tenant. As noted by the respondents, the remaining issue
would then be whether Adeline Nelson was entitled to a directed
verdict as a matter of law. Since she had nothing to do with the
accident herself, the only way she could have been negligent would
be if she knew or should have known of some defect on her property
which was unreasonably dangerous and failed to warn the appellant
of the defect of which he had no independent knowledge.
With this in mind, we note this is an appeal from a finding
of a jury and this Court only needs to determine whether there was
substantial evidence to support the verdict as to Donald Nelson.
This Court in Kitchen Krafters v. Eastside Bank (1990), 242 Mont.
155, 164, 789 P.2d 567, 572, set forth our standard of review that
the findings of a jury will not be reversed on appeal unless they
are not supported by substantial evidence. Substantial evidence
is defined as that evidence that a reasonable mind might accept as
adequate to support a conclusion. It can be based upon weak and
conflicting evidence, but in order to rise to the level of
substantial evidence, it must be greater than trifling or
frivolous. See Christensen v. Britton (1989), 240 Mont. 393, 401,
784 P.2d 908, 913. While the appellant argues that Donald Nelson
should have been found by the jury to be a non-credible witness,
and thus, that the jury had no alternative but to find that he was
negligent to some degree, we have held in numerous cases that the
issue of credibility is an issue that rests squarely with the jury.
In Davis v. Church of Jesus Christ of LDS (1990), 244 Mont. 61, 68,
796 P.2d 181, 185, this Court noted:
Where conflicting evidence exists the credibility and
weight to be given to the evidence is within the jury's
province. Wheeler, 757 P.2d at 345. The jury found
sufficient evidence that the walkway was unsafe and this
Court will not overturn its determination by weighing
conflicting evidence on appeal. Wheeler, 757 P.2d at
347.
Here there was more than ample evidence to support the jury's
verdict. It is uncontested that immediately prior to the accident,
Donald and the appellant were operating the garage door with the
new electric door opener that they had just installed. The new
crack in the bottom of the north end of the door was fully noted
by both the appellant and Donald. They disconnected the garage
door opener and brought the door to the fully-down position.
Thereafter, the two men began to repair the new crack in the door.
The appellant testified that he did not know what Donald was
doing at the time he left the garage and had no reason to be on
guard for his own safety. This testimony was brought into question
by the appellant's own expert witness, Mr. Udall, who testified
that the appellant had told him that he understood that Donald was
going to go outside the garage door and pry up on the bottom of the
door in order to attempt to close the crack that had developed.
Mr. Udall further testified that he was told by the appellant that
he, the appellant, then went over and knelt down in front of the
spring-loaded bracket to see what was binding up the garage door.
This testimony raised a question as to the credibility of
appellant's testimony at trial and was, of course, a question for
the jury to decide.
Neither the appellant nor Donald nor any of the expert
witnesses could testify exactly as to how the accident occurred.
Thus, it became a question for the experts to try to speculate as
to what possibly could have taken place. The jury verdict reflects
that no one could state to any degree of probability how the
accident took place. We conclude that there is substantial
evidence to support the verdict of the jury as to the absence of
negligence on the part of Donald Nelson.
The next issue concerns the directed verdict in favor of
Adeline Nelson. As previously noted, after both the appellant and
the respondents rested their cases, both the Nelsons moved the
court for a directed verdict in each of their respective cases.
The court granted a directed verdict for Adeline Nelson but denied
the motion for directed verdict for Donald Nelson. Both parties
rely on several Montana cases as to the duty of a landowner to use
ordinary care to maintain her or his premises in a reasonably safe
condition or to warn those legally on the land of any hidden or
lurking dangers. See Luebeck v. Safeway Stores, Inc. (1968), 152
Mont. 88, 90, 446 P.2d 921, 922-23. This principle was most
recently stated in Davis. However, the possessor of land is not
an insurer against all accidents and injuries to invitees on the
premises. See Cassady v. City of Billings (1959), 135 Mont. 390,
393, 340 P.2d 509, 511.
The transcript indicates that at the time of the motion for
a directed verdict on behalf of Adeline Nelson, the district judge
specifically asked the appellant's attorney what Adeline Nelson
knew or should have known about the garage door that the appellant
did not know. Appellant's counsel was unable to respond to the
judge's question indicating that Adeline Nelson was not in any way
involved with the garage door at the time of the accident and,
therefore, a ruling was made in her favor.
The judge gave as his reason for granting a directed verdict,
that the appellant not only knew about the new crack in the garage
door but also knew that the garage door had been previously
repaired on the south end with metal strapping prior to the
accident. With this knowledge of the cracks, repairs, and with the
knowledge of the overall condition of the garage door, the
appellant had proceeded in an attempt to repair the garage door.
The appellant's knowledge concerning the condition of the garage
door was superior to that of Adeline Nelson. At the time of the
ruling in favor of Adeline, there was no evidence presented of a
"hidden or lurking dangert1 the premises known to Adeline or that
on
Adeline should have anticipated.
Next, the appellant raised the question of alleged negligence
of independent contractors imputed to the landowner. It would
appear that the appellant is alleging that Adeline is liable for
any alleged negligent acts of the contractors who constructed her
garage, or Mr. Hewitt, the contractor who repaired the south end
of the garage door, regardless of whether she was aware of any
dangerous condition they allegedly created. It is the general rule
in Montana that an owner is not liable for acts of an independent
contractor. Wells v. Stanley J. Thill and Associates, Inc. (1969),
153 Mont. 28, 31, 452 P.2d 1015, 1017.
The appellant's own expert, Mr. Udall, testified that his only
criticism as to how the garage door was installed was the placement
of the bottom bracket on the garage door by the installers and that
the inside of the door should have been painted. His testimony
indicated that the placement of the bottom bracket on the garage
door was not something that an ordinary landowner would have
expertise in, and in fact, the appellant's expert was impeached as
to where he thought the brackets should be placed on the door in
spite of the fact that he had been in the garage door business in
excess of thirty years.
All three of the appellant's experts agreed that the cause of
the accident was the cracking of the garage door which took place
just prior to the time of the accident. As a matter of law,
Adeline Nelson, who was not present when the door cracked, could
not be held liable for failure to warn about something of which she
had no knowledge.
As to the appellant's allegation that he was not provided a
safe place to work, this issue was not directly raised at the time
of trial. It therefore does not warrant consideration by this
Court. The issue of whether Adeline Nelson was vicariously liable
for appellant's injuries under a theory of joint enterprise,
partnership, principle/agent or landlord/tenant is rendered moot
following the jury's conclusion that Donald Nelson was not
negligent.
Finally, we are faced with the issue of whether the court
erred in not giving appellant's proposed instructions 22A, 22B,
24A, 25A, 31A and 41 to the jury. In the judge's review of the
instructions, he told the attorneys that he was going to read the
instructions that he intended to give, and that if either party had
objection to an instruction that was given or refused, that they
should voice that objection when he came to that particular
instruction. The only objection made as to any of the instructions
was the appellant objecting to the respondents' instruction 25
which set forth the law in the State of Montana as it relates to
independent contractors. That instruction accurately reflects the
existing law in Montana as set forth in Storrusten v. Harrison
(1976), 169 Mont. 525, 549 P.2d 464 and Dvorak v. Matador Services,
Inc. (l986), 223 Mont. 98, 727 P.2d 1306. The appellant's
objection to the instruction was that it should have set forth the
two exceptions to the general rule whereby the employer of an
independent contractor can be held liable for the contractor's
negligence. He noted that as set forth in Dvorak the two
exceptions most commonly raised are: (1) the peculiar risk or
inherently dangerous doctrine; and (2) the employer's liability for
his own negligence. Dvorak, 727 P.2d at 1309.
As previously noted there is no evidence or law justifying
instructions to a jury on the two exceptions in this case. Here
we have an attempt to repair a crack in a garage door which cannot
be categorized as a peculiar risk or inherently dangerous activity.
As noted, Adeline Nelson could not Bave possibly been negligent
since there was no evidence that she knew or should have known of
any defect in the door which arose immediately prior to the
accident.
In addition, we note as set forth in the respondents1 brief
that the instructions were offered by both parties and primarily
argued the evening before the close of the evidence while Adeline
Nelson remained a party defendant. Since she was the only person
who employed the carpenters to build the garage and Mr. Hewitt to
repair the crack on the south end of the door, the instruction was
frivolous after she was dismissed from the case by a directed
verdict of the court. It would have had no impact on the jury's
decision as to the negligence of Donald. The evidence is clear
that the building and prior repairs to the garage was done by
persons hired by Adeline without any involvement of Donald.
While the appellant also objected to the court's failure to
give instructions 22B, 24A, 25A, 31A and 41, these instructions set
forth the duties of the possessors of land and the owner of
property. Here again, Adeline was dismissed from the case on a
directed verdict. No legal relationship existed between her as
landowner and Donald Nelson as a person installing the garage door
opener, and the duties as set forth in the proposed instructions
were not issues to be decided by the jury in their deliberation.
We conclude the refusal by the court to give these
instructions, in view of its directed verdict in favor of Adeline
Nelson, is not error. We conclude the court committed no error in
refusing the instructions above mentioned; there being no evidence
presented to establish the theory proposed by the appellant.
We concur: %
Justice
Chief Justice
&/
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m i = '
September 24, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Mort Goldstein
Goldstein Law Firm, P.C.
438 3rd Street
P.O. Box 706
Havre, MT 59501
William J. Gregoire, Esq.
SMITH, WALSH, CLARKE & GREGOIRE
121 Fourth Street North, Suite 2A
P.O. Box 2227
Great Falls, MT 59403-2227
ED SMITH
CLERK OF THE SUPREME COURT