dissenting.
[¶ 45] I respectfully dissent. I am of the opinion the trial court did not abuse its discretion in denying Gibson’s motion for a new trial.
[¶ 46] On July 13, 2000, the trial court ordered that jury instructions were to be submitted by November 3, 2000. Rule 51, N.D.R.Civ.P., provides that the trial court “may require each instruction to be written on a separate sheet, provided North Dakota pattern jury instructions may be requested by reference to instruction number only.” In a belated response to the trial court’s order that written instructions be filed with the court, Gibson filed on November 6, 2000, “Defendant’s Requested Jury Instructions,” which was a list by reference to number only of thirty-nine North Dakota Pattern Jury Instructions (“N.D.J.I.”), with the exception of N.D.J.I. Civ. No. 1.22, “Statement of Defense,” which was attached and typed with information particular to this case. Gibson’s list by reference to number only included N.D.J.I. Civ. No. 17.10 entitled “Duty of Possessor to Lawful Entrant — Injury Caused by Condition of Premises.” Gibson even later requested two additional instructions in writing, one dated November 10, 2000, and one dated November 13, 2000. The additional instructions requested were N.D.J.I. Civ. No. 17.08, “Duty of Occupant of Premises,” which was submitted with a copy of the pattern jury instruction attached to the request and a written jury instruction entitled “Tenant obligations — Maintenance of dwelling unit,” derived from N.D.C.C. § 47-16-13.2. Both of these were given by the trial court. The trial of this case commenced on November 13, 2000, and lasted seven days.
[¶ 47] On November 21, 2000, the trial court provided both parties with the jury instructions that it proposed to give and asked for exceptions to be noted. At that time, the trial court stated:
[Y]ou have in front of you the jury instructions that are pretty much what you have requested.... We don’t have to keep them all. Some tend to be a little redundant. But the only one probably in there that wasn’t requested — I have put in one that the defendant later requested for Tenant Obligations— Maintenance of dwelling unit, I think that is appropriate — then I also felt I should go to the other section of the Code, the preceding section, and put in the Landlord Obligations.
[¶ 48] The trial court asked for exceptions to Gibson’s proposed N.D.J.I. Civ. No. 17.10, “Duty of Possessor to Lawful Entrant — Injury Caused by Condition of Premises.” The Rittenours’ attorney stated he would leave it in, but Gibson’s attorney asked the court to alter the pattern jury instruction by changing the word “landowner” to “possessor,” arguing the pattern jury instruction was inconsistent because it referred to landowner in one part and possessor in another part. The Rittenours’ attorney then suggested they “pull it” if Gibson’s attorney was concerned about confusion. The court then asked Gibson’s attorney: “Mr. Klemin, do you object to pulling it out?” Gibson’s attorney responded: “Not really. But I do think it is a correct statement of North Dakota law. The law does not impose all the things on the landlord it imposes on whoever is the possessor.” The trial court, receiving Gibson’s attorney’s agreement to pull N.D.J.I. Civ., No. 17.10, pulled it.
I
[¶ 49] N.D.J.I. Civ. No. 17.10 is derived verbatim from 4 Minnesota Practice, Jury *703Instruction Guides (2 ed.1974), JIG II, 330 G-5. The Minnesota Jury Instruction 330 G-5 was derived from the seminal case of Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972), and subsequently approved by the Minnesota Supreme Court. See, e.g., Bisher v. Homart Develop. Co., 328 N.W.2d 731, 733 (Minn.1983); Conover v. Northern States Power Co., 313 N.W.2d 397, 406 (Minn.1981); Flom v. Flom, 291 N.W.2d 914, 917 (Minn.1980).
[¶ 50] Gibson complains on appeal that the trial court erred when it would not modify N.D.J.I. Civ. No. 17.10 as he verbally requested on November 21, 2000. Gibson took the position the pattern jury instruction he originally requested was inherently inconsistent. Gibson, however, overlooks the fact that he agreed to withdraw his request for that jury instruction. Gibson never submitted a written instruction modifying the pattern jury instruction. Once he withdrew his request for N.D.J.I. Civ. No. 17.10, there was nothing before the trial court. Gibson waived his right to that jury instruction. See State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658 (“Forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right, ... ”).
[¶ 51] Gibson decided instead to verbally request that one of the Rittenours’ proposed instructions, N.D.J.I. Civ. No. 17.05, “Unsafe Condition of Premises,” be modified by the court. Gibson’s attorney argued that: “The law is clear that the tenant also has a duty to warn if the tenant knows. This is only one-sided because it only talks about the landlord having a duty.” The trial court, however, was never provided with a requested written instruction modifying N.D.J.I. Civ. No. 17.05 or even with suggested language by Gibson. Even on appeal, Gibson has not provided the instruction he claims he wanted. Further, the trial court was never provided with any case law on point concerning the duty to warn owed by a tenant to an invited guest. The trial court took the matter under advisement until it could read Francis v. Pic, 226 N.W.2d 654 (N.D.1975), and Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733 (N.D.1988), the two cases suggested by Gibson’s attorney.
[¶ 52] When the trial court ruled on Gibson’s objection to N.D.J.I. Civ. No. 17.05, it noted that Bellemare involved a tenant who sued a landowner and that the lease was an agricultural lease, not a residential lease. Francis involved the issue of the duty owed by a landlord to a tenant’s social guest. Neither of these cases involved a tenant’s duty to warn a social guest of the tenant. The trial court overruled Gibson’s objection to N.D.J.I. Civ. No. 17.05, “Unsafe Condition of Premises.”
[¶ 53] American Jurisprudence 2d comments on requests for jury instructions saying,
When counsel for a party desires to have the court give instructions upon particular issues not covered in the general charge, he should draw the specific instruction desired and present it to the court and ask that it be given to the jury. Such requested instructions are often required by express provisions of statute or rule of court to be in writing.
75A Am.Jur.2d Trial § 1084 (2002).
[¶ 54] Rule 51(b), N.D.R.Civ.P., reads: Requested Instructions. At the close of the evidence or at an earlier time during the trial as the court reasonably directs, any party may file proposed jury instructions. The court may require each instruction to be written on a separate sheet, provided North Dakota pattern jury instructions may be requested by reference to instruction number only. The court shall inform counsel in writing of its action upon requested instructions prior to their argument to the jury. All *704instructions given by the court to the jurors must be read or given to them orally by the court without disclosing whether the instructions were requested.
[¶ 55] Here, the trial court did order that jury instructions were to be submitted by November 3, 2000. The jury instructions dated November 6, November 10, and November 13, 2000, were in writing. On November 21, 2000, however, just before the case went to the jury, Gibson orally requested an instruction on the duty of a tenant to warn a social guest. Our Court addressed in State v. Olson, 356 N.W.2d 110, 114 (N.D.1984), whether or not a trial court committed reversible error by not giving a jury instruction which was orally proposed to the trial judge after proposed instructions had been submitted. In Olson, defense counsel requested an instruction as to conscious action during a discussion about jury instructions in chambers. Defense counsel, however, did not offer a specific instruction on conscious action, but instead asked the trial court to compose such an instruction. No instruction on conscious action was given. Our Court framed the question presented as “whether or not counsel for Olson was obliged to submit a written jury instruction in order to have preserved Olson’s objection for appeal.” Olson, at 114. We concluded the trial court did not commit reversible error:
If a defendant desires more comprehensive instructions on any phase of the case, he must submit written instructions with the request that they be given. If a party fails to make such a request he cannot predicate error upon omissions in the charge given. Counsel will not be excused for failing to comply with a rule to present requested instructions in writing merely because the trial judge indicates in advance that he will not give the instruction requested. The reason for the requirement for written instructions is that a trial judge must be allowed an opportunity to examine the substance of the requested instruction in order to facilitate a proper ruling on that request. The desired result is a ruling by the trial judge that will allow the instructions to fully and accurately inform the jury of the applicable law. Additionally, by requiring requested jury instructions to be in proper form, we, as a court of review, will be able to determine from the record the correctness of the trial court’s ruling.
Here, counsel failed to tender a written jury instruction on “conscious action.” In fact, counsel attempted to shift his duty of drafting a specific instruction on conscious action to the judge. We hold that it was counsel’s duty to draft a specific instruction on conscious action and to submit it to the trial judge. Because Olson did not submit a written jury instruction she may not predicate error upon the trial court’s refusal to give the conscious-action instruction unless the trial court committed reversible error by so ruling.
Id. (internal citations omitted); see also State v. Marks, 452 N.W.2d 298, 304-05 (N.D.1990); State v. Erickstad, 2000 ND 202, ¶ 18, 620 N.W.2d 136.
[¶ 56] Because Gibson never submitted a written jury instruction, he has not preserved the issue for appeal. See Olson, 356 N.W.2d at 114; Marks, 452 N.W.2d at 306; Erickstad, 2000 ND 202, ¶ 18, 620 N.W.2d 136. He, therefore, may not predicate error upon the trial court’s refusal to give the instruction on the duty of a tenant to warn a social guest. See Olson, at 114. Unlike in criminal cases where N.D.R.Crim.P. 52(b) provides for obvious error analysis, our court, in civil cases, has held where there is no objection the in*705structions become the law of the case. See Barta v. Hinds, 1998 ND 104, ¶ 8, 578 N.W.2d 553; Delzer v. United Bank of Bismarck, 527 N.W.2d 650, 654-55 (N.D.1995); Erickson v. Schwan, 453 N.W.2d 765, 768 (N.D.1990). Without the preservation of the objection, the jury instructions given became the law of the case. See Weisenberger v. Senger, 381 N.W.2d 187, 189 (N.D.1986) (concluding that appellants “waived their right to raise this issue on appeal” because they “failed to preserve their objection to the court’s failure to give the requested [jury] instruction. ...”).
II
[¶ 57] Even if the majority were correct that failure to give this instruction is error, Gibson has not proven it affected his substantial rights under N.D.R.Civ.P. 61. “Under N.D.R.Civ.P. 61, no error is ground for granting a new trial or setting aside a verdict unless refusal to do so is inconsistent with substantial justice, and at every stage of a proceeding, a court must disregard any error or defect which does not affect the substantial rights of the parties.” Howes v. Kelly Servs., Inc., 2002 ND 208, ¶ 5, 654 N.W.2d 422. “It is well settled in this State that on appeal, the appealing party has the burden of proof of establishing not only that the trial court erred but that such error was highly prejudicial to his cause.” Filloon v. Stenseth, 498 N.W.2d 353, 356 (N.D.1993) (quoting Allen v. Eleven, 306 N.W.2d 629, 634 (N.D.1981)).
[¶ 58] In Praus v. Mack, 2001 ND 80, ¶ 43, 626 N.W.2d 239, Praus contended the trial court committed reversible error when it failed to instruct the jury about specific duties established by federal regulations. We held: “Even if Praus’ requested instructions would have more fully informed the jury of regulatory duties, the error, if any, in failing to give the instructions was not reversible error. A trial court’s failure to instruct the jury about the violation of a specific statute is not prejudicial error if the complaining party had the opportunity to argue the theory to the jury and the instructions given allowed for a finding of negligence if the jury believed the complaining party’s evidence.” Id. at ¶ 44; see also Olson, 356 N.W.2d at 115 (“Although an instruction on conscious action was not given, counsel was free to argue and did argue to the jury that Olson was unconscious after the accident and could not conform to the requirements of the law. We believe that the issue of conscious action was presented fairly to the jury.”).
[¶ 59] The majority opinion never addresses the entire record in this case in determining whether Gibson’s substantial rights were affected. Gibson put in evidence testimony about Jackson’s failure to verbally warn Rittenour and failure to post a written warning sign. Gibson argued to the jury that the tenant, Cheryl Lynn Jackson, was negligent because she knew of the soft spot in the floor and did not put up a warning sign on the doorway or warn Rittenour about it by telling her to watch out for the floor. Gibson also argued Jackson’s sister, Misty Ruiz, knew about the problem and didn’t warn anybody. In closing argument, Gibson’s attorney argued:
Now, Orvilee Gibson, Shorty Gibson, says that he didn’t know there was a problem. He acknowledges that if he had known that there had been a problem that it was his duty to fix it. But we do know that Cheryl Lynn Jackson knew that there was a problem. She said so. Over and over. But yet knowing that there is a problem there which is dangerous to anyone, there is no sign there. There is no sign warning Cindy. She can see photographs in the court*706room just fine but she couldn’t see that sign. But even if she couldn’t see a sign, her children who are 11, 12, 13 could have when they are right there with her. They could have seen one if there was one there. There was no sign warning the general public.
Donnie Rittenour had been in this trailer. He stepped on that same spot. There was no sign to warn him. Cheryl Lynn Jackson did not tell him about that. So there are obligations on the part of the tenant. There are obligations on the part of the landlord. There is no question that both the landlord and tenant have certain obligations.
Later in his closing argument, he said:
Did Cheryl say anything to you about the floor before you went in or before you left that day? “She didn’t say anything to me.” Not before she went in, not before she left. “When you left, she didn’t say anything to you like watch out for the floor itself?” “No.” Now we are talking about the area where she fell is right in the middle of the doorway. “Cheryl didn’t tell you about any problem.” .“She didn’t talk to me before I went in.” And Misty who was aware of the problem, so she says — Misty is Cindy’s good friend. Misty was babysitting Nicole and took Nicole down to Cheryl Lynn’s trailer. Misty left Nichole’s [sic] jacket there. Misty told Cindy that her jacket was down there. Misty didn’t tell Cindy or Donnie either about a problem with the floor and she knew — she knew she was going down to get her jacket.
Rittenour responded in her argument that Jackson did not have time to warn Ritten-our “because [Jackson’s] kids let her into the mobile home” and
[t]hirdly, in the midst of the chaos and her kids screaming, Cindy decided it was time to get out of there and as Cheryl was proceeding down the rear hallway Cindy took that opportunity to leave. The next thing Cheryl Lynn Jackson knows boom, she’s through the floor. There was no time to warn her. Her attention was diverted and the circumstances surrounding the fall and her leaving give understandable reason for her not warning Cindy of this soft spot in the floor.
Rittenour also argued she is legally blind and could not have seen a warning sign put up on the door anyway. The issue of failure to warn on the part of the tenant was fully argued to the jury.
[¶ 60] Further, the trial court’s instructions were all correct statements of the law. In addition to the instructions on specific duties of the landlord/owner and the tenant, the trial court instructed the jury:
RESPONSIBILITY FOR CONDUCT
Everyone owes a duty without contract to refrain from injuring the person or property of another or infringing upon any rights of another. Everyone is responsible not only for injury caused by willful acts but also for injury to another person caused by ordinary negligence in the management of one’s property or person.
ORDINARY NEGLIGENCE
“Ordinary negligence” is the lack of ordinary care and diligence required by the circumstances. Ordinary care or diligence means such care as a person of ordinary prudence usually exercises about one’s own affairs of ordinary importance.
Negligence involves a lack of such concern for the probable consequences of an act or failure to act as a person of ordinary prudence would have had in conducting one’s own affairs. It is the *707lack of such care as persons of common sense and ordinary prudence usually exercise under the same or similar circumstances. Negligence is a relative term. Whether a certain act or failure to act is negligence depends upon the facts and circumstances of each particular case.
The duty to me care is based upon knowledge of danger. The care that a person must exercise in a particular situation is in proportion to the degree of danger of injury to oneself or to others in the act to be performed. The care necessary to constitute the ordinary care required by a person upon any particular occasion is measured by reference to the circumstances of danger known to one at the time or which the person should reasonably have foreseen. The greater the danger, the greater is the care required.
A person is presumed to have performed one’s duty and to have exercised ordinary care, unless the contrary is shown by the greater weight of the evidence. The mere fact that a mishap occurred, considered alone is not in itself evidence of negligence on the part of any of the people involved. You have no right to assume that the mishap was caused by negligence or other wrongful conduct of anyone.
If the standard of care required in any given situation is prescribed by the laws of this state, a failure to observe that .standard is evidence of negligence.
(Emphasis added.) The jury instructions as a whole and the argument of counsel allowed the jury to find the tenant, Cheryl Lynn Jackson, negligent for a failure to warn.
[¶ 61] In addition, the verdict is consistent with the jury’s knowledge that the tenant owed a duty to warn. The jury found Gibson, the landlord, 35% at fault and Jackson, the tenant, 30% at fault, consistent with both owing similar duties to Rittenour. Even more persuasive is the jury finding “others” 10% at fault, which under the evidence could only have referred to Misty Ruiz, Jackson’s sister, who knew of the floor problem and who Gibson argued was at fault for failing to warn Rittenour. The trial court’s failure to instruct specifically on the duty to warn was not, on the record of this case, prejudicial error affecting substantial rights or requiring a new trial.
III
[¶ 62] Gibson argues insufficiency of the evidence to support the jury verdict as to future economic and non-economic damages. Gibson further argues the testimony of Dr. Tyson Williams was speculative and hearsay. Our Court has held that when a party requests a new trial on the grounds that there was insufficient evidence to justify the verdict, the trial judge must make the decision by weighing the evidence. Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982). Our Court reviews the trial court’s denial of a motion for a new trial by viewing the evidence in the light most favorable to the verdict. Nesseth v. Omlid, 1998 ND 51, ¶ 13, 574 N.W.2d 848. The testimony of both Rittenour and Dr. Williams supports the jury’s award of future economic and non-economic damages. Both testified regarding Rittenour’s permanent impairment and disability resulting from the injuries sustained. Dr. Williams testified that as a result of Rittenour’s permanent injuries, she would incur future medical expenses. The trial judge concluded that based on the evidence, the amounts of the damages were not excessive and were not against the weight of the evidence.
IV
[¶ 63] Gibson argues that he should be granted a new trial based on N.D.R.Civ.P. *70859(b)(3), which provides for “Accident or surprise which ordinary prudence could not have guarded against.” Gibson fails to cite any case law to support his argument.
[¶ 64] The Rittenours first revealed Dr. Williams as an expert witness at the pretrial conference and next in answers to interrogatories on September 28, 2000. The answers to interrogatories indicated Dr. Williams would testify regarding the “impairment, disability, permanency and effect on activities of daily living of Cindy Rittenour regarding the injuries” caused by the accident. The discovery cut-off date was October 1, 2000. Gibson never moved for a more definite answer to the interrogatories, nor did he move for answers to be compelled to this interrogatory. Instead, Gibson made a Motion in Limine on October 2, 2000, to exclude Dr. Williams’ testimony regarding the “impairment, disability, permanency and effect on activities of daily living of Cindy Ritten-our.” The basis of the motion was that Rittenour had not timely supplemented her answers to interrogatories. On October 18, 2000, the trial court denied the motion after reviewing the electronic recording of the pre-trial conference. The trial judge found Gibson “was given reasonable notice at the pretrial conference that the medical doctors or some of them would be called to give expert testimony.”
[¶ 65] Gibson did not ask the court for leave to take a discovery disposition of Dr. Williams at anytime between October 18, 2000, which was the day his motion was denied, and November 13, 2000, which was the day the trial began. Gibson also did not bring a motion to compel more specific answers to his interrogatories concerning expert witnesses. At trial, the trial court gave Gibson a continuance for one day because of a claim that he did not know the doctor would testify on future economic and non-economic damages. Gibson never objected to the court’s remedy nor requested a further continuance of the trial.
[¶ 66] It is my opinion that the answer to interrogatories, indicating that the doctor would testify about the permanent injury to Rittenour, indicated that the doctor would testify about future pain and suffering and future medical expenses that would be incurred as a result of the permanent injury. As the majority states, the trial court’s decision to admit or exclude expert testimony is within the discretion of the trial court and we are reluctant to interfere with the trial court’s broad discretion.
[¶ 67] I disagree with the majority’s statement that the Rittenours failed to comply with the trial court’s discovery orders. The Rittenours did not fail to fairly disclose the subject matter on which their expert witness would testify at trial. See Olmstead v. Miller, 383 N.W.2d 817, 821-22 (N.D.1986) (holding there must be probative evidence of a permanent injury before a jury can be instructed that impairment of future earning capacity is an item of damage and that in order to recover for future medical expenses, there must be substantial evidence to a reasonable degree of certainty that they are necessary); and Olmstead v. First Interstate Bank of Fargo, 449 N.W.2d 804, 808 (N.D.1989) (holding evidence of a permanent injury and past medical bills is sufficient to support the need for and cost of future medical treatment). On the issue of damages in this case, the jury was instructed it could award future economic and non-economic damages. Gibson did not object to the submission of this instruction.
[¶ 68] Although Gibson could have taken the doctor’s deposition either between October 18 and November 13 or during the one-day continuance or could have requested a further continuance of the trial, Gibson did nothing. He now claims surprise. *709We have said that the preferred remedy for any late disclosure is a continuance rather than an exclusion of the expert testimony. Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790. We have also held that our standard of review is an abuse of discretion and that we will defer to the trial court’s decision of whether or not to exclude the testimony unless there has been a decision that is arbitrary, capricious, or unreasonable.
[¶ 69] I would affirm the trial court. I, therefore, dissent.
[¶ 70] WILLIAM A. NEUMANN, J., concurs.