Rittenour v. Gibson

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. Ritten-our 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 Rit-tenours responded, “Unknown at this time.”

[¶ 6] On January 21, 2000, the Ritten-ours 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 Rit-tenours 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 Novem*695ber 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 plaintiffs 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.

*696A

[¶ 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 following factors may be considered:
1) The purpose for which the entrant entered the premises;
2) The circumstances under which the entrant entered the premises;
3) The use to which the premises is put or expected to be put;
4) The foreseeability or possibility of harm;
5) The reasonableness of the inspection, repair, or warning; and
*6976) The opportunity and ease of repair or correction or the giving of the warning.

[¶ 17] Gibson specifically and in writing requested instruction 17.10. Under N.D.R.Civ.P. 51(b), “North Dakota pattern jury instructions may be requested by reference to instruction number only.” That was done here. In chambers, however, he pointed out that the pattern instruction as written contained an error as it relates to the duty of a tenant who is the possessor of the land. He asked that the pattern instruction be corrected to replace the reference to “landowner” with “possessor of land” to accurately reflect North Dakota law on a tenant’s duty to warn. Gibson is correct that the pattern jury instructions contained an error that made a material difference in how the jury might have understood the law. Francis v. Pic, 226 N.W.2d 654, 655-57 (N.D.1975). The failure to include the reference to “possessor” throughout the instruction could have led the jury to believe that the duty to warn belonged only to the landlord. The trial court, however, did not correct the pattern instruction, leaving Gibson the option of having either a prejudicially erroneous instruction or no instruction.

[¶ 18] After the defendant could not get it corrected, he was left without a correct instruction as to the duty of a tenant who is the possessor of the land. With no instruction on the duty of either the landlord or the tenant to warn, the instructions, although incomplete, arguably would not have been misleading. The problem is that the trial court proceeded to North Dakota Pattern Jury Instruction 17.05, relating to the duty of the landlord to warn.

UNSAFE CONDITIONS OF PREMISES

If, at the time of leasing premises, a landlord knows, or has reason to know, that a condition exists involving foreseeable unreasonable risk of harm to the tenant, the landlord owes a duty to the tenant to inform the tenant of the condition and of any attendant risk involved in which the condition is of such nature that the landlord would have no reason to expect that the tenant would discover' the condition or realize the risk. This duty extends to persons who later come upon the premises with the consent of the tenant. The landlord is subject to liability for a breach of this duty.

[¶ 19] Gibson objected to this instruction because it was confusing and did not fairly advise the jury as to the law. The trial court took the matter under advisement.

[¶ 20] The next day the trial court presented the instruction package to the parties as provided by Rule 51, N.D.R.Civ.P. Instruction 17.05 was in, but with nothing on the duty of the tenant to warn. Gibson again took exception to the instructions in regard to this error:

On the jury instruction on Unsafe Condition of Premises, I believe the case law is quite clear that the tenant owes a similar duty to a guest that comes on the premises if the tenant knows or has reason to know of a condition involving foreseeable unreasonable risk of harm to a guest and does not inform the guest. So I think the instruction, the way it reads and as the court intends to give it, is incomplete and confusing. I think it would be less confusing if the court added the duty of the tenant to a guest which is stated in the case Francis v. Pic.

The trial court again noted the objection on the record and overruled it.

[¶ 21] Gibson argues the jury was not given instructions that encompass *698the entire law on the issue of the duty to warn. Gibson argues that a tenant has an obligation to warn invitees about known dangerous conditions on the premises and that the instruction the court gave does not state anything about that duty. Francis, 226 N.W.2d at 656. The district court stated it was submitting the instruction on a landlord’s duty to warn without also submitting the similar instruction on a tenant’s duty, based upon the holding in Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733 (N.D.1988). The holding in Bellemare, however, involved a commercial lease. Id. We stated in Bellemare that “[pjerhaps residential leases are sufficiently different from other leases as to warrant different treatment.” Id. at 741.

[¶ 22] Under North Dakota law, a tenant has a duty to warn if the tenant knows of a dangerous condition. Jacobs v. Anderson Bldg. Co., 459 N.W.2d 384, 386 (N.D.1990). In Francis, this Court was confronted with the issue of what reasonable notice should be given to a social guest of a lessee about dangerous conditions arising in a single-dwelling home. Francis, 226 N.W.2d at 656. Where a social guest of a lessee brought an action against a landlord for injuries she sustained after falling down a flight of steps, this Court applied Restatement (Second) of Torts § 358 (1965), which adds an exception to the general rule of landlord nonliability. Id. at 655-57. Section 358 states, in part:

(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

Id. at 657.

[¶ 23] Section 358 implies that along with the landlord’s duty to warn, the tenant also has a “duty to warn” a social guest entering the premises about any dangerous conditions on the property. Id. Jackson, the tenant, testified at trial that she was aware of the defect in the floorboard of the entry shed and had asked Gibson to fix it. Her knowledge of the defect and its need of repair implies that she had reason to know about the risk involved. Gibson testified that he did not know about the defect in the floorboard. All questions of fact having any bearing on negligence should have been submitted to the jury, and the jury should have been given the correct law to apply. The instructions as given, taken as a whole, did not correctly and adequately inform the jury on essential issues in the case. See State v. Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658; Beilke v. Coryell, 524 N.W.2d 607, 609 (N.D.1994). Gibson requested the correct law and has a right to an instruction on the tenant’s “duty to warn.” The district court erred.

[¶ 24] The question then is whether the district court’s error is harmless. Interest of B.G., 477 N.W.2d at 822. Tenant liability, along with landlord liability, is a central issue in this case. Because the court admitted instruction 17.05, but not 17.10 with Gibson’s requested correction, the jury was given the landlord’s duty to warn but not the tenant’s duty to warn.

*699[¶ 25] Although the jury found the tenant Jackson 30% responsible, the jury, based on the evidence before it, could have found the liability based on Jackson’s failure to maintain the premises. The jury was instructed on the tenant’s duty to maintain the premises in a good and safe condition. At trial, Gibson testified Jackson would leave the door to the shed open and would leave the window up on the storm door outside the entry so rain and snow could come in. Jackson herself testified she did not have a rug inside the door of the entry shed, and the floor would become wet from tracking snow, mud, and rain into the entry. Jackson’s sister also testified that she observed times when the entry shed floor would be wet from snow. Gibson also testified that he reported Jackson to social services, and eventually evicted her for uncleanliness on the property. Gibson also testified that he did not know of the defect. Jackson testified she knew of the defect but did not fix the defective floor because she was waiting for Gibson to fix it. The jury could have found Jackson 30% liable solely on the basis that she did not take care of the property in a clean and safe manner and that the defect in the floor, and the accident, resulted in part from her negligent maintenance. We cannot conclude the error was harmless.

[¶26] Because the error affected the jury’s view of liability, we conclude that the error affected a substantial right of Gibson’s. We reverse and remand for a new trial.

B

[¶ 27] Gibson argues the district court erred in admitting the testimony and evidence presented by Dr. Williams.

[¶ 28] Prior to trial, Gibson moved the district court to exclude Dr. Williams’ entire testimony. At trial, Gibson moved the district court to exclude Dr. Williams’ testimony on the basis that the Rittenours had not seasonably and accurately supplemented their interrogatories. Gibson was unaware of two of Rittenour’s visits to Dr. Williams, and was not informed of the subject matter that Dr. Williams would testify to.

[¶ 29] The decision to admit expert testimony rests within the discretion of the district court and will not be reversed in the absence of a showing of abuse of discretion. Botnen v. Lukens, 1998 ND 224, ¶ 12, 587 N.W.2d 141. On appeal, we are reluctant to interfere with the broad discretion of the trial court to determine the qualifications and usefulness of expert witnesses. Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62. In Myer, this Court upheld a trial court’s determination that a police officer was able to testify to whether the excessive speed of a motorcycle was a contributing factor in the accident involved in the case. Id. at ¶ 6. The trial court stated that although the officer himself had not done a precise scientific calculation, he was still qualified to render his opinion on the matter because of his training and experience. Id.

[¶ 30] Upon Gibson’s objection to Dr. Williams’ testimony on future economic loss, the district court asked Dr. Williams whether he could testify about the future economic damages to a medical certainty. After Dr. Williams responded and stated his experience, the court allowed him to proceed on that basis. We will not address whether the district court decision to allow Dr. Williams to testify to a medical certainty was an abuse of discretion; however, we note that the Rittenours failed to comply with the court’s discovery orders.

[¶ 31] “Parties must fully, completely, and fairly disclose the subject matter on which their expert witnesses *700will testify at trial and the substance of their expert witnesses’ testimony.” Wolf v. Estate of Seright, 1997 ND 240, ¶ 17, 573 N.W.2d 161 (citing N.D.R.Civ.P. 26(e)(1)(B)). “The purpose of the disclosure requirement is to eliminate surprise at trial.” Id. The Rittenours did not specifically answer the interrogatories pertaining to expert witnesses, and their supplemental responses were neither complete nor accurate.

[¶ 32] Not until the pretrial conference on July 13, 2000, did the Ritten-ours mention Dr. Williams might be a possible witness. The district court had set an October 1, 2000, discovery deadline, and on September 28, 2000, only two days prior to the deadline, the Rittenours sent their supplementation specifying Dr. Williams as one of three potential experts that might testify. The Rittenours stated Dr. Williams was to testify only as to the impairment, disability, permanency, and effect on Rittenour’s daily living activities, as well as describe the injuries she received as a result of the accident. Dr. Williams’ actual testimony was about Rit-tenour’s future economic and noneconomic damages. The Rittenours did not specify in any of their supplemental responses that this would be the substance of Dr. Williams’ testimony. The Rittenours argue Gibson should have been aware of the substance to which Dr. Williams would testify, based on a reading of Dr. Williams’ medical records on Rittenour. However, a full reading of the medical records does not reveal any indication that Dr. Williams would testify as to future economic or non-economic damages.

[¶ 33] Gibson also states he was not provided Rittenour’s October 10th and November 9th medical records and was therefore unable to properly prepare for a cross-examination of Dr. Williams. The Rittenours argue they no longer had a duty to supplement because Gibson was provided with signed medical releases. Providing signed medical releases, however, does not relieve the opposing party of the requirement of full disclosure. Had the Rittenours provided a more timely and specific disclosure, as required by N.D.R.Civ.P. 26(e)(1)(B), Gibson might have conducted more discovery.

[¶ 34] Having already decided to reverse and remand for a new trial, we need not decide whether this failure to supplement, by itself, would justify a new trial.

C

[¶ 35] Gibson argues the district court erred in excluding photographs of the interior of the home while allowing photographs of the exterior. Under N.D.R.Ev. 402, “[a]ll relevant evidence is admissible, except as otherwise provided.... ” Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. A district court has wide discretion in deciding whether proffered evidence is relevant, and we will not reverse the court’s decision to admit or exclude evidence on the ground of relevance unless the court has abused its discretion. Brandt v. Milbrath, 2002 ND 117, ¶ 13, 647 N.W.2d 674. The trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner. First National Bank and Trust Co. v. Brakken, 468 N.W.2d 633, 636 (N.D.1991).

[¶ 36] Under N.D.R.Ev. 103(a), “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.... ”

[¶ 37] The district court did not abuse its discretion in finding the photographs of *701the outside entrance relevant and finding the photographs of the bedroom and bathroom irrelevant. The photographs of the outside entrance showed the jury a portion of the accident scene, while the pictures of the bedroom and bathroom were areas unrelated to the accident scene. We conclude that the district court’s refusal to admit Gibson’s requested photographs did not affect his substantial rights as a party.

D

[¶ 38] Gibson argues the district court erred in refusing to allow his character witness to testify. “We will not overturn a trial court’s exclusion or admission of evidence, unless the court abused its discretion.” State v. Gagnon, 1999 ND 13, ¶ 9, 589 N.W.2d 560 (citing State v. Clark, 1997 ND 199, ¶ 26, 570 N.W.2d 195). “A trial court abuses its discretion when it acts in an arbitrary or capricious manner or misapplies or misinterprets the law.” Id.

[¶ 39] Gibson argues that his character was attacked at trial by the testimony of Jackson and her sister and thus he should have been afforded a character witness to rebut such attacks on his character. Under N.D.R.Ev. 405(a), character evidence may be presented through testimony as to reputation or testimony in the form of an opinion. However, character evidence is restricted to cases in which character is in direct issue or is used on cross-examination to rebut an assertion by a witness concerning a person’s character. Gagnon, 1999 ND 13, ¶ 13, 589 N.W.2d 560 (citing State v. McIntyre, 488 N.W.2d 612, 617 (N.D.1992)). In this case, Gibson’s character was not put in issue; therefore, Gibson was correctly denied testimony by a character witness under Rule 405(a), N.D.R.Ev.

E

[¶ 40] Gibson argues the district court erred in finding the evidence sufficient to uphold the jury verdict. “We uphold special verdicts on appeal whenever possible and set aside a jury special verdict only if it is perverse and contrary to the evidence.” Anderson v. Jacobson, 2001 ND 40, ¶ 6, 622 N.W.2d 730 (citing Fontes v. Dixon, 544 N.W.2d 869, 871 (N.D.1996)). We will examine both the law of the case and the evidence to determine whether the verdict is logical and probable or whether it is perverse and clearly contrary to the evidence. Id.

[¶ 41] A district court should not disturb a jury’s verdict for damages unless the amount is “against the weight of the evidence” or is “so excessive or inadequate as to be without support in the evidence.” Nesseth v. Omlid, 1998 ND 51, ¶¶ 12-13, 574 N.W.2d 848. When injuries are uncertain and a jury’s decision is based upon the opinions presented at trial, it is entirely within the jury’s discretion to determine and find the amount of damages. Id. at ¶ 13. “ ‘[I]t would be an invasion of the jury’s function for the court to direct the finding of a certain amount.’ ” Usry v. Theusch, 521 N.W.2d 918, 919 (N.D.1994) (quoting McCommon v. Hennings, 283 N.W.2d 166, 169 (N.D.1979)).

[¶ 42] According to evidence presented at trial, Rittenour’s total future medical bills could exceed $700,000. The jury awarded future economic damages in the amount of $300,000 and future noneconomic damages in the amount of $50,000. The district court found that the amounts were not excessive and were not against the weight of the evidence. The district court did not abuse its discretion.

Ill

[¶ 43] The judgment of the district court is reversed, and the case is remanded for a new trial.

*702[¶ 44] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.