No. 89-466
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
JONNIE MUSGROVE DAVIS,
Plaintiff and Respondent,
THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS; < I
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH
OF JESUS CHRIST OF LATTER DAY SAINTS; CORPORATION
OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF
LATTER DAY SAINTS; RISK MANAGEMENT DIVISION,
KALISPELL STAKE CENTER OF THE CHURCH OF JESUS
CHRIST OF LATTER DAY SAINTS; and JOHN DOES I-X
(unknown divisions, departments, subsidiaries,
affiliates, associations, whether incorporated or
unincorporated, agents, employees, bishops,
presidents, assigns, or any other entity or person
related to any of the above-named defendants, - I
Defendants and Appellants,
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kenneth E. OIBrien; Hash, OIBrien & Bartlett;
Kalispell, Montana
For Respondent:
Dana L. Christensen & Pamela L. Miller; Murphy,
Robinson, Heckathorn & Phillips; Kalispell, Montana
Submitted on Briefs: February 9, 1990
Decided: July 12, 1990
Filed: A
Justice R. C. McDonough delivered the Opinion of the Court.
The defendants (Church) appeal the judgment entered in the
District Court, Eleventh Judicial District, Flathead County,
awarding Jonnie Musgrove Davis damages for personal injury in the
amount of $401,864.28. We affirm the District Court.
The issues raised by the Church are:
1. Whether there was substantial evidence to support the jury
verdict.
2. Whether it was error to allow Dr. Alexander McNeill to
render an opinion as to degree of slope of the walkway.
3. Whether the District Court erred in giving Davis1 proposed
instructions nos. 21, 22, 24, 27, 28 and 30, and refusing the
Church's proposed'instructions nos. 35, 36, 42, 43 and 44.
Plaintiff and respondent Jonnie Musgrove Davis (Davis) brought
a lawsuit on July 20, 1987 to recover for injuries suffered as a
result of a fall on the premises of the Kalispell Stake Center of
the Church of Jesus Christ of Latter Day Saints. In her complaint
Davis alleged that the Church was negligent in (1) failing to
design and construct a reasonably safe sidewalk, (2) failing to
erect a handrail, (3) failing to properly maintain the walkway by
allowing an unnatural accumulation of ice to be present, and (4)
failing to warn of the dangerous condition.
At the time of the accident, Davis was a volunteer youth
seminary teacher at the Kalispell Stake Center. On February 25,
1985, she arrived at the Center at approximately 6 a.m. Several
inches of snow had fallen during the night; but Davis entered the
2
Center without difficulty.
During Davis' seminary classes, the Church janitor arrived and
shoveled the walkway. Usually he applied salt to prevent ice build
up. However, on this occasion none was applied.
Davis completed her classes by 8 a.m., and proceeded to exit
the building. As she left, she noted that the walkway had been
shoveled, and she started to walk towards her car. The top portion
of the walk was nearly level, and Davis had no problem negotiating
it. At the midpoint of the walkway however, the slope downward
increased. In this four to six foot long span, the sidewalk had
been altered to remove two steps which were present in the original
construction. The walk was reconstructed to enable elderly and
wheelchair-bound church members easier access. As Davis descended
this slope she slipped and fell, landing on her head and neck. As
a result of her injuries, Davis has undergone five operations to
her cervical spine.
Davis filed suit in 1987. In the summer of 1985, subsequent
to the accident, the Church redesigned and replaced portions of the
walkway due to deterioration. Consequently, no exact measurement
of the gradient of the walkway where Davis fell could be determined
at trial.
At the close of Davis' case, the Church moved for a directed
verdict. The motion was denied, as was the subsequent motion for
new trial. The Church contends now, as then, that no basis exists
for a finding of negligence on the part of the Church.
Because this is an appeal from the findings of a jury, we need
only determine whether there is substantial evidence in support of
the verdict. The appropriate standard of review requires that the
findings of a jury shall not be reversed on appeal unless they are
not supported by substantial evidence. Kitchen Krafters, Inc. v.
Eastside Bank of Montana (Mont. 1990), 789 P.2d 567, 47 St.Rep.
602. Substantial evidence is defined as that evidence that a
reasonable mind might accept as adequate to support a conclusion.
Although it may be based upon weak and conflicting evidence, in
order to rise to. the level of substantial evidence it must be
greater than trifling or frivolous. Christensen v. Britton, et a1
(Mont. 1990), 784 P.2d 908, 46 St.Rep. 2223.
The Church maintains that the jury's verdict is not supported
by substantial evidence. In order to address this contention we
must review the evidence in a light most favorable to Davis.
Wheeler v. City of Bozeman (1988), 232 Mont. 434, 757 P.2d 345.
In her complaint, Davis alleged that the Church was negligent
for failing to properly design, construct and maintain the walkway
which led to the main doorway of the Kalispell Stake Center. She
also alleged that the Church was negligent in failing to warn her
of the dangerous condition of this walkway. In order to prove
these assertions she must establish:
1) The Church had a duty to construct and maintain the
walkway in a reasonably safe condition.
2) The Church breached that duty.
3) The Church's breach caused Davis to sustain damases.
See Kitchen Krafters, Inc., 789 P.2d at 567.
No one contends that Davis did not sustain an injury after she
slipped and fell upon the sidewalk. Therefore, we need only review
the evidence to determine whether there was substantial evidence
for the jury to determine that the Church had a duty to provide
safe access to the church, whether this duty was breached, and
whether that breach caused Davis' injuries. See Blaskovich v.
Noreast Development Corp (Mont. 1990), - P.2d , 47 St.Rep.
740.
The law is clear that a landowner has a duty to use ordinary
care in maintaining his premises in a reasonably safe condition or
to warn those legally on the land of any hidden or lurking dangers.
Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921.
Given this rule o i law, it is elementary that the Church had a duty
to provide a sidewalk leading to the church which is reasonably
safe.
The question then becomes - did the Church breach this duty?
At trial, both sides presented testimony concerning the condition
of the walkway. Much of this testimony centered around the slope
of that portion of the sidewalk which led to the front doors of the
church. The slope is important because the Uniform ~uildingCode
requires that handrails be provided on any slope greater than ten
percent, and in this case no handrails were provided. The Church
maintains that the slope did not exceed a gradient of ten percent.
Davis on the othef hand, contends that the slope ranged from 16 to
25 percent.
Both parties base their slope calculations on testimony
presented by witnesses at trial. Davis presented testimony given
by Dr. Alex McNeill, an expert in biomechanics. Dr. McNeill
testified that the slope of the walkway, where Davis fell, ranged
from 16 to 25 percent. Apparently, he based this opinion upon a
review of photographs taken of the walk, numerous blueprints
prepared in connection with the original church construction, and
a review of depositions taken of various witnesses.
Davis also presented testimony of Allan Denning, a long time
member of the church. His testimony primarily concerned his memory
of the entrance way as it existed at the time of the accident. He
testified, that as a child, he would slide down the slanted area.
During trial, in response to a request from counsel, he drew a
picture to demonstrate the slope of the sidewalk. His picture
indicated a slope of approximately 24%.
The Church, in an attempt to discredit the testimony provided
by Dr. McNeill .and Mr. Denning, presented calculations and
testimony to prove its slope percentages, which did not exceed ten
percent. They attempted to bolster this evidence through testimony
given by Harry Schmautz, a licensed architect and Harold Conat, an
experienced cement finisher, who installed the walkway. Both
testified that the walkway was not dangerously steep and that no
handrail was necessary.
In addition to evidence of the slope of the walkway, the jury
heard testimony concerning the slickness of the sidewalk on the day
of the accident. In particular, the church janitor, John Reading
testified that he shoveled the walk at approximately 7 : 3 0 a.m. He
further testified that he did not apply any salt to the sidewalk
despite the fact that this was regularly done in the past.
Dana Tatum, a young woman who witnessed Davis' fall, testified
that the sidewalk was slick on the day of the accident.
Apparently, she had walked the sidewalk shortly before Davis
slipped and fell. She testified that because the sidewalk was so
slick she made her younger brother accompany her down the ramp.
She further stated that at the time she wondered why there was no
salt applied to the walkway.
Following submission of all of this testimony, the jury
determined that the Church was 76% responsible for the injury and
that Davis was 24% responsible. While the testimony was
conflicting, it is apparent that there was substantial evidence to
support the jury's findings that the sidewalk was unreasonably
dangerous. 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.
There is also substantial evidence to support a finding that
the unreasonably dangerous condition of the sidewalk caused Davis
to slip and to sustain injuries. In this regard, we need only
point out that Dr. McNeill testified that in his opinion, the slope
and the icy condition of the ramp combined to cause Davis to fall.
The jury obviously agreed with this testimony, and once again, we
will not invade its province.
Our review of the evidence establishes that there is
substantial evidence to support the jury's finding of negligence
on the part of the Church. Each of the elements of this cause of
action are supported by evidence presented at trial. The findings
of the jury are therefore affirmed.
The Church contends that the lower court erred by allowing Dr.
McNeill to offer an opinion as to the slope of the sidewalk where
the injury occurred. It maintains that Dr. McNeill was only
retained for the purpose of rendering testimony on the general
dynamics of "how people fall," not on the slope of the walk.
Accordingly, the .Church argues that his testimony was improper
because they were not adequately prepared to challenge his opinions
through cross-examination.
As stated earlier, Dr. McNeill was retained by Davis as an
expert in biomechanics. He stated at his deposition and at the
time of trial that he looked at many factors to determine what may
have caused the fall. During his deposition, Dr. McNeill made
numerous references to the slope of the sidewalk and its
significance to the formulation of his opinion as to how the fall
occurred. He stated that lt[e]ssentiallythe contribution that the
slope might--that the slope surface might have made to that fall,
that's principally what I have been asked to look at. It Dr. McNeill
made it clear that he was perusing architectural drawings and
surveys in an attempt to determine the gradient of slope. It was
made clear before trial that Dr. McNeill intended to render an
opinion as to the factors contributing to the fall, and that
gradient of slope would be one of those factors. The Church's
contention that Davis failed to divulge that Dr. McNeill was an
expert witness on the range of slope is not well taken.
Finally, the Church contends the lower court erred by its
admission of a number of Davist instructions and the omission of
several of the Church's instructions.
The Church states Davis' instructions nos. 21, 22 and 24
incorrectly state the legal standard of causation.
Instruction no. 21 reads:
Before you can find the defendant liable, you must find
the defendant ' s negligence was a cause of the plaintiff s
injury .
Instruction no. 21 is a verbatim transcription of Montana Pattern
Instruction no.
Instruction no. 22 reads:
The defendant's conduct is a cause of the injury if it
helped produce it and if the injury would not have
occurred without it.
Instruction no. 22 comes directly from MPI 2.08.
Instruction no. 24 states:
The plaintiff has the burden of proving:
(1) That the defendant was negligent.
(2) That the plaintiff was injured.
(3) That the defendant's negligence was a cause of the
injury to the plaintiff.
(4) The amount of money that will compensate the
plaintiff for her injury.
The source for no: 24 comes directly from MPI 2.12.
The Church contends that none of the above instructions refer
to proximate or legal cause, and are therefore erroneous. The
Church offered a modified version of MPI 2.06, which inserted the
word wproximatew before cause, and included a paragraph involving
intervening superseding cause. The Church's instruction states as
follows:
Before you can find the Defendant liable, you must find
that the Defendant's negligence was a proximate cause of
the Plaintiff's injury.
The proximate cause of an injury is that cause which, in
a natural and continuous sequence, unbroken by any new
and independent cause, produces the injury, and without
which it would not have occurred.
In Kitchen Krafters, Inc., 789 P.2d at 567, we expressly
disapproved of MPI 2.08 because it does not adequately instruct the
jury on proximate cause. In that case we reversed a jury verdict
for the plaintiff because we held that the jury was not adequately
instructed on causation. MPI 2.08 is an instruction on cause in
fact which is part of a two-tiered analysis that must be applied
whenever a causation question is confronted. Kitchen Krafters, 789
After cause-in-fact is established, the plaintiff must prove
that the defendant's actions were the proximate cause of his
damages. In order to establish the existence of proximate cause,
it must be shown that the consequences of the defendant's wrongful
act were reasonably foreseeable. As stated in earlier cases,
"[Plroximate cause is one which in a natural and continuous
sequence, unbroken by any new, independent cause, produces injury
. . .I1 Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d
772. "New and independent causes,!' which are not foreseeable, are
generally regarded as superseding intervening events which break
the chain of causation and absolve the defendant of liability.
Kitchen Krafters, 789 P.2d at 576.
The question of proximate cause is an issue of fact to be
decided by the jury. Thayer v. Hicks (1990), 47 St.Rep. 1082,
1095, - P.2d -, . When addressing this issue, the jury must
look forward, through the chain of causation, to determine whether
the events which occurred subsequent to the defendant's act were
foreseeable. Kitchen Krafters, 789 P.2d at 575. If events, which
were unforeseeable, entered into the chain of causation, and
produced the plaintiff's injury, proximate cause cannot be
established and the plaintiff's actions must fail.
In the case now before us, the lower court did not instruct
the jury on proximate cause. This is a negligence action and
therefore proximate cause must be established in order for the
plaintiff's allegations to prevail. Therefore, the lower court
erred in refusing to offer the Church's instruction on proximate
cause.
However, in order to constitute reversible error, the lower
court's actions must affect the substantial rights of the
complaining party. Rollins v. Blair (1989), 235 Mont. 343, 767
P.2d 328. The Church objected to instructions nos. 21, 22 and 24
on the grounds that they did not give the appropriate definition
of proximate cause. We agree with this conclusion, but we fail to
see how the Church was prejudiced. In neither its objection to the
lower court or in its brief on appeal, does the Church argue that
there were any superseding intervening events which broke the chain
of causation. Furthermore, there is no evidence of such
occurrences. Davis argued, in pertinent part, that the ramp was
negligently designed and maintained. As stated earlier, the jury
found sufficient evidence to agree with this assumption. There is
no evidence that any independent cause interrupted the chain of
events between the Church's wrongful act and Davis1 fall. We
therefore hold that the lower court's refusal to instruct on
proximate cause was error; however in this case such error was
harmless and is not therefore reversible.
The Church assigns error to the District Court in giving
Plaintiff's Proposed Instruction pertaining to premises liability,
which reads as follows:
The defendant has the duty to exercise ordinary care to
keep its premises reasonably safe for all persons who
foreseeably might come upon them.
In determining whether premises were reasonably safe, you
should consider all of the surrounding circumstances
shown by the evidence including, but not limited to, the
following matters:
1. The manner in which the property is used;
2. The setting, location and physical
characteristics of the property;
3. The type of person who would reasonably be
expected to visit the premises; and
4. The specific type of hazard or unsafe
condition alleged.
0
The Church maintains that it had no duty to exercise ordinary
care to keep the church premises reasonably safe for Davis because
a natural accumulation of ice and snow was present. Under their
theory, a landowner has no duty to exercise ordinary care to
maintain a reasonably safe premises if the dangerous condition is
created by a natural accumulation of ice or snow. See Leubeck, 446
P.2d at 921.
The Church's contention must fail. Davis maintained,
throughout trial, that the Church was negligent, not only due to
its failure to remedy the icy condition, but also because its
sidewalk was too steep and because it failed to provide a handrail.
This case involves more than a simple accumulation of ice and snow.
This instruction reflects this theory, and was therefore properly
given.
The Church also takes issue with Davis1 instruction no. 28,
which states:
An owner has a duty to warn persons who come upon his
property of any temporary unsafe condition:
1. created by it or its employees; or
2. caused by negligence on its part
The Church contends the above instruction is an incorrect
statement of the law and that no facts in the record support a
finding that either the Church or an employee negligently caused
any unsafe conditions to exist. The Church contends that its
proposed instruction no. 46 is the proper statement of the law and
was erroneously refused. The Churchls instruction no. 46 stated
that no duty to warn of a danger exists if it would be reasonable
to expect that an ordinary person would observe the danger.
We do not agree. The Church argues it had no duty to warn
unless the conditions which caused Davis1 injuries were "hidden or
lurking.If See Regedahl v. Safeway Stores, Inc. (1967), 149 Mont.
13
229, 425 P.2d 335. This assertion carries little weight as the
given instruction was a correct statement of the law, which fit
Davisv theory of the case. The court gave several instructions
imputing negligen&e to the plaintiff if she should fail to see or
be aware of a condition vvuniversallyknown to be reasonably
dangerous, or [is] obviously so.Iv The court properly allowed
instructions adaptable to the theories of the Church's case, and
refused to give offered instructions where the subject matter was
adequately covered by other instructions. Rollins v. Blair (1989),
235 Mont. 343, 767 P.2d 328. The Church cannot contend it was
error where the court gave instructions adaptable to both parties1
cases and refused instructions on statements of law already
covered.
The Church further argues that the District Court erred in
giving Plaintiff 's Proposed Instruction No.
' 30, set forth as
follows:
A property owner may be held liable for falls on
accumulations of ice and snow where the hazard created
by the natural accumulation is increased or a new hazard
is created by an affirmative act of the property owner;
even where such a condition is actually known or obvious,
a property owner may be held liable if he should have
anticipated that injuries would result from the dangerous
condition.
The Church asserts that there are no facts justifying this
instruction and that it is inconsistent with Montana law relating
to a property ownervs duty with respect to natural accumulations
of ice and snow. The Church maintains that the record is devoid
of evidence that the Church did anything other than shovel the
walkway, and therefore this instruction is not applicable and that
it is only applicable where the hazard presented by a natural
accumulation of snow has been increased by the acts of the property
owner.
We disagree. Instruction no. 30 is the law in Montana
relating to accumulations of snow and ice. Cereck v. Albertsons
(1981), 195 Mont. 409, 637 P.2d 509. Davis, as part of her case,
argued that a sheen of ice was left after the janitor shoveled the
walk. Such a condition, combined with the gradient of the walk,
rendered the natural accumulation of snow and ice unnatural. The
instruction therefore related to an important part of ~avis'theory
of the case. It would have been reversible error for the District
Court to refuse to instruct the jury on this aspect of her theory.
The Church claims the lower court erred in refusing to give
its proposed instructions nos. 35, 36, 42 and 44. Instructions
nos. 35, 36 and 44 are redundant, as they were all adequately
addressed in jury instructions nos. 34, 37 and 45.
The Church's proposed instruction no. 42 misconstrues the law
by stating that a landowner is not negligent solely by the act of
removing snow. Whether an affirmative act by the landowner creates
or increases a hazard can be question of fact to be determined by
the jury. The trial court correctly denied the instruction.
Aff inned.
Justice
Justices
Justice John C. Sheehy, specially concurring:
I concur in the foregoing opinion. I want to speak my
admiration of the judicial sleight-of-hand by which the majority
reach a proper result in a slip-and-fall-on-snow case without
mentioning Restatement (Second) of Torts, 5 343 (A)(1) (1965), nor
Kronen v. Richter (1984), 211Mont. 208, 683 P.2d 1315, nor Kaiser
v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341, nor
Limberhand v. Big Ditch Company (1985), 218 Mont. 132, 706 P.2d
491, nor differentiating Blaskovich v. Noreast Development
Corporation, Cause No. 89-117 (Decided April 10, 1990), - Mont .
I 790 P.2d 977.
The approval by this Court in this Opinion of plaintiff Is
instruction no. 30, set out in the opinion, is an approval of at
least a part of 5 343(A)(1) of the Restatement in the following:
A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition
on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite
such knowledge or obviousness.
Lesson: A slip and fall case may yet have life, even after
Blaskovich.
L-$&-.-Q Li2L4L4U%!.
Justice