No. 92-173
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
JESSICA LYNN MORALLI,
Plaintiff and Respondent,
-vs-
LAKE COUNTY, MONTANA,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel W. Hileman and James E. Vidal, Murray &
Kaufman, Kalispell, Montana
For Respondent:
Douglas J. Wold, Wold Law Firm, Polson, Montana
Submitted on Briefs: July 9, 1992
Decided: October 8, 1992
CL.ERI< OF SLIPREIVIE COURT
STATE OF MONTANA
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
plaintiff, Jessica Moralli, brought a negligence action
against Lake County, Montana in the Twentieth Judicial District
Court, Lake County, Montana. Lake County contended that Ms.
Moralli negligently caused her own injuries. A jury found that
Lake County was 70% negligent and that Ms. Moralli was 30%
negligent. Defendant appeals from the judgment and order denying
its motion for judgment notwithstanding the verdict. We affirm.
The issues presented for review are as follows:
1. Whether the District Court erred in denying Lake County's
motion for directed verdict.
2. Whether the District Court erred in admitting evidence of
medical expenses without proper foundation.
3. Whether the District Court erred in refusing to instruct
on premises liability.
4. Whether plaintiff's counsel's improper closing arguments
require a reversal of the jury's verdict.
5. Whether there is sufficient credible evidence to support
the jury's verdict.
Jessica Moralli pled guilty to criminal charges arising from
a hit-and-run accident in Polson, Montana in July of 1988 and was
sentenced to seyGe- sixteen days in the Lake County jail. She
served eight consecutive days following her arrest and was allowed
to finish the remaining eight days of the sentence on weekends.
She served two of these days on September 6 and 7, 1988. All ten
days were served without incident in a women's cell with a bathroom
which included a full-length shower curtain. Each time, Ms.
Moralli was given a two-piece suit and a pair of slippers to wear
while she was in jail.
The remaining six-day sentence was subsequently amended, only
requiring Ms. Moralli to serve the four days from September 13 to
September 16, 1988. When Ms. Moralli returned to the Lake County
jail on September 13, 1988 to serve the four days, jail personnel
placed her in a different cell. Ms. Moralli requested footwear;
none was given to her. She then requested that she be allowed to
wear her own socks or her own tennis shoes. Jail personnel denied
this request also.
Ms. Moralli and another witness testified that the cell Ms.
Moralli was placed in had a shower with a shower curtain ending
eighteen inches above the floor. Ms. Moralli testified about the
accident and her actions just prior to the accident as follows:
She and another inmate both took showers, after which Ms. Moralli
returned to the bathroom to use the toilet and to comb her hair.
By this time, up to one-half inch of water had accumulated on the
floor of the bathroom. As Ms. Moralli rose from the toilet and
pulled up her pants, the wet pant legs stuck to her heels and her
feet slipped out from under her. At the same time she arose from
the toilet she twisted her body away from the open doorway for
privacy reasons. As she slipped, she fell backwards, hitting her
head, shoulders and back against the wall.
The testimony indicates that Ms. Moralli's cellmates came to
her assistance when she fell. They notified the jailer on duty, Mr.
Fairchild, who did not respond. Hours later, a second jailer, Mr.
Emerson, after being informed of the fall, removed Ms. Moralli from
her cell and transferred her to a holding cell while he made
telephone calls to the Polson city judge to arrange for her release
from confinement and to Morallils boyfriend to arrange for a ride
from the jail. Emerson advised Moralli's boyfriend to take her to
the hospital because she was injured. Moralli saw a physician the
next morning.
Ms. Moralli filed a claim against Lake County for injuries
suffered from the fall in its jail. At the time she fell, she was
barefoot. The floor surface was smooth concrete. Ms. Moralli
claimed that her bare feet, the soapy water from the shower leaking
onto the bathroom floor, and the smooth concrete surface all
combined to create a dangerous condition resulting in her injuries
and that Lake County was negligent in operating the facility.
Since the time of the injury in the Lake County jail, Moralli
claims she has suffered from the injury and incurred over $5,000 in
medical expenses. At trial, Moralli presented testimony from her
chiropractor that she would continue to incur medical expenses
during her lifetime relating to the 1988 injury. The jury returned
a verdict for Ms. Moralli with damages totalling $35,400.00.
Judgment was entered for $24,780.00 plus interest and costs because
the jury determined that Moralli was 30% negligent.
I.
Did the District Court err in denying Lake County's motion for
a directed verdict?
Lake County contends that there was no credible evidence to
warrant submitting the case to a jury. A motion for a directed
verdict should only be granted when there is a complete absence of
any evidence to warrant submission to the jury and all factual
inferences must be viewed in the light most favorable to the
nonmoving party. Jacques v. Montana Nat'l Guard (1982), 199 Mont.
493, 504, 649 P.2d 1319, 1325. A directed verdict for the
defendant is not proper if reasonable persons could differ as to
the conclusions drawn from the evidence when considered in a light
most favorable to the plaintiff. Weber v. Blue Cross of Montana
(1982), 196 Mont. 454, 464, 643 P.2d 198, 203.
Issue I and Issue V are so interrelated that it is best to
discuss them together. Issue V questions the sufficiency of the
evidence to support the jury's verdict. When there exists in the
record substantial evidence to support the jury's verdict, we will
sustain a district court denial of a motion for a directed verdict.
Krueger v. General Motors Corp. (1989), 240 Mont. 266, 277-78, 783
P.2d 1340, 1347-48. In short, a verdict is binding upon this Court
if it is based upon substantial evidence, although the evidence may
appear inherently weak. Our review of a jury verdict is very
narrow in scope. Substantial evidence need only be evidence which
from any point of view could have been accepted by the jury as
credible. Kitchen Krafters, Inc. v, Eastside Bank of Montana
(1990), 242 Mont. 155, 164, 789 P.2d 567, 572.
In order to sustain a claim of negligence, Moralli must
present substantial evidence to prove that (1) the County owed a
duty to Moralli, (2) the County breached that duty, (3) the breach
was the actual and proximate cause of Moralli's injury, and (4)
that damages resulted.
1. What duty did Lake County owe to Moralli?
Lake County had a duty to exercise reasonable and ordinary
care for the life and health of the prisoner, to keep her safe and
protect her from unnecessary harm. Lake County also had a duty to
render medical aid when necessary, treat the prisoner humanely and
refrain from oppressing her. Pretty On Top v. City of Hardin
(1979), 182 Mont. 311, 315, 597 P.2d 58, 60-61. Clearly, Lake
County had a duty to provide Moralli with a reasonably safe
accommodation during the period of her incarceration.
2. Did Lake County breach this dutv?
Ms. Moralli presented evidence that the county knew or should
have known that the condition of the bathroom floor was far from
ideal. Another inmate had fallen there within the previous month.
Pretty On Top requires only reasonable and ordinary care for the
life and health of the prisoner. Prettv On TOE, 597 P.2d at 60.
However, evidence presented by Ms. Moralli indicates that the
condition of the floor in the bathroom was slippery and that jail
personnel knew the floor was slippery. Ms. Moralli also presented
evidence that she asked for footwear and when that request was
denied, she asked if she could keep her own footwear and that
request also was denied. The evidence presented by Ms. Moralli
also indicates that the county provided no medical assistance
although the jailer was aware that Ms. Moralli had fallen in the
cell's bathroom and that he later released her, advising her
boyfriend to take her to the hospital. At that time, Moralli still
had two days of her sentence to serve. We conclude that there is
substantial evidence from which the jury could properly have found
that Lake County breached its duty.
3. Did the County's conduct cause Moralli's injurv?
A jailer is not liable for injury resulting from an inmate's
intentional conduct. Pretty On Top, 597 P.2d at 61. This issue
often arises in cases which result from a suicide, as in Pretty On
m. Lake County contends that Ms. Moralli acted intentionally by
entering the bathroom, that she was aware of the floor condition at
that time and should have been careful--that her own negligence
caused her injury. Lake County also contends that the proximate
cause of her injury was when she hooked her pant leg on her heel.
Again, viewing the evidence in a light most favorable to Ms.
Moralli, the jury could have found that it was foreseeable that the
floor would become wet and slippery from inmates' showers, t-hat
footwear or some other protection was a necessary precaution
against slips and falls, and that the inmates might need to use the
bathroom facility when the floor was wet with standing water. Ms.
Moralli's intentional conduct was insufficient to break the chain
of causation.
We conclude that the county has failed to demonstrate a
complete absence of evidence to warrant submission of the case to
the jury. We hold that the District Court properly denied the
County's motion for a directed verdict.
We further conclude that the record contains substantial
evidence to support the jury's verdict. We therefore hold there
was sufficient credible evidence to support the jury's verdict.
11.
Did the District Court err by admitting evidence of medical
expenses without proper foundation?
Lake County contends that Ms. Moralli provided no foundation
that the expenses reflected on Exhibit 3, a summary of medical
expenses resulting from the accident, were related to the slip and
fall in the Lake County jail. In Cain v. Stevenson (1985), 218
Mont. 101, 706 P.2d 128, the appellant made a similar argument. We
held that a claimant is competent to testify as to his past and
present condition, but that his testimony, standing alone, is not
surficient to establish cause for those aspects of an injury not
apparently related to the accident in question. -, 706 P.2d at
131. We noted that:
not all injuries require medical expert testimony to prove
permanency or causation. (It has been held that medical
testimony is not necessary to prove permanent injuries or
their cause where) the nature of the injury is such that
laymen can plainly see, or infer from the injury, its cause
and that it will be permanent, such as the loss of a limb.
Respondent's back injury was not such an injury.
w, 7 0 6 P.2d at 131.
In u,we held that inadequate proof of permanent injury
required a reversal, but only on the issue of damages. b,7 0 6
P.2d at 131-32. Moralli's testimony relating to past and present
condition was competent under m, but she could not testify to
future damages. That required qualified medical testimony from an
expert witness. Dr. William F. Risch, Moralli's treating
chiropractic physician for the six-month period prior to trial,
testified to his history, observations and treatment and gave his
opinion that more likely than not her injury was permanent.
A plaintiff is not required to establish the causal connection
between the accident and her injuries with certainty; she merely
must do so with reasonable certainty or by a preponderance of the
evidence. Allers v. Willis (1982), 197 Mont. 499, 505, 643 P.2d
592, 595-96. Moralli testified that she had been free of symptoms
from a prior injury for five years before this injury. Together,
~oralli'stestimony relating to her past and current condition and
Dr. Risch's testimony relating to her current and future condition
were sufficient foundation for medical expenses.
We hold that the District Court did not err in admitting
evidence of medical expenses.
111.
Did the District Court err in refusing to instruct the jury on
premises liability?
Lake County proposed and the District Court refused the
following jury instruction:
The defendant has the duty to exercise ordinary care to keep
his premises reasonably safe for all persons who foreseeably
might come upon them, and to warn such persons of any hidden
danger upon such premises.
Neither of the parties contended that there was a hidden
danger lurking on the premises. Rather, the County primarily
contended that the condition was known or obvious and that Ms.
Moralli was contributorily negligent by making use of the bathroom
in such manner. While the above instruction is a correct statement
of the law in Montana, it is inappropriate in a case such as this
one where there is no hidden danger on the premises.
Lake County also proposed and was refused two other
instructions. Proposed instruction 16 provided:
The defendant is not liable to plaintiff for physical harm
caused by any activity or condition of the jail facility whose
danger is known or obvious to the plaintiff, unless defendant
should have anticipated the harm despite such knowledge or
obviousness.
This instruction, from Kronen v. Richter (1984), 211 Mont.
208 , 211, 683 P.2d 1315, 1317, relates to nonliability of a
bus iness owner to a business invitee for conditions which are known
or obvious to the plaintiff and is inappropriate for the facts of
this case.
Proposed instruction 17 states that a landowner is entitled to
assume that the plaintiff will see and observe that which would be
obvious through the reasonably expected use of an ordinary person's
senses. Ms. Moralli freely admitted that she saw the water on the
floor. She had no choice but to enter the bathroom. This
instruction is also inapplicable to the facts of this case.
Section 25-7-301(5), MCA, provides:
. . . In charging the jury, the court shall give to it all
matters of law which the court thinks necessary for the jury's
information in rendering a verdict.
In giving jury instructions, the trial court is required to
give the relevant law favoring both sides. Demaree v. Safeway
Stores, Inc. (1973), 162 Mont. 47, 508 P.2d 570. The District
Court gave a general negligence instruction and an instruction on
the duty of care for jail operators as established by Prettv On
m, 597 P.2d at 60-61. When taken as a whole, if the instructions
state the law applicable to the case, a party cannot claim
reversible error. Goodnough v. State (1982), 199 Mont. 9, 647 P.2d
364. By giving the general negligence instruction and the
instruction describing the duty of care owed by the ordinary and
prudent jailkeeper, the District Court gave the jury a pertinent
summary of the applicable Montana law. We cannot say that Lake
County was prejudiced by the District Court's giving these
instructions and refusing to give Lake County's proposed
instructions numbered 15, 16 and 17.
We hold that the District Court did not commit reversible
error by refusing to give Lake County's proposed instructions
relating to the duty that Lake County owed to Ms. Moralli.
IV .
Do plaintiff's counsel's closing arguments constitute
reversible error?
Lake County objected twice to comments made by Ms. Moralli's
counsel during his closing argument. Lake County contends that
these comments prejudiced the jury and prevented the County from
obtaining a fair trial.
The first such comment referred to Mr. Emerson's absence as a
witness for Lake County. Emerson, the jailer on duty when Ms.
Moralli was released, was still employed by the County at the time
of the trial. Counsel for Ms. Moralli stated that the County did
not have Emerson testify because "he would have hurt their case
very badly." Lake County objected to this remark. The District
Court sustained the objection and gave a curative instruction to
the jury, advising them that they were not allowed to consider any
statements made by plaintiff's attorney as to what Emerson's
testimony may or may not have been. Plaintiff's counsel contends
that the comments regarding Mr. Emerson were fair statements as to
the inference that could be drawn by the County's failure to call
a crucial witness, and were not improper comment.
Improper argument requires reversal only when prejudice has
resulted which prevented a fair trial. Gunnels v. Hoyt (1981), 194
Mont. 265, 276, 633 P.2d 1187, 1194. In Gunnels, the defense
counsel made improper comments upon and reference to excluded
evidence, which indicated to the jury that the plaintiff was
concealing evidence. We concluded that the district dourt properly
instructed the jury "not to draw any inferences from rulings on
evidence, not to consider rejected evidence, and not to conjecture
or draw any inferences as to what an answer might have been, or as
to the reason behind any obje~tion.?~
Gunnels, 633 P.2d at 1194.
We could not say that any prejudice resulted to the plaintiff in
Gunnels. The argument in this case was even less prejudicial.
Plaintiff's counsel did not comment on excluded evidence. He did,
however, comment on what testimony might have been. This was
improper, but sufficiently cured by the District Court Is
instruction regarding the comment. Plaintiff's counsellsreference
to private logs kept by county employees was similarly handled by
the District Court.
Lake County argues that the best solution is for the Court to
hold that prejudice will be presumed where counsel offers improper
argument or comments during trial and would have us place the
burden on the offending party to establish a lack of prejudice. We
decline to do so.
The other comments that Lake County objected to involve Ms.
Morallits counsel's remarks about county employees taking him to
the wrong jail cell and the jail supervisor not giving certain
documents to him, followed by his remark that he did not feel there
was an intentional deception. This objection, overruled by the
District Court, involves what the County calls "an attempt to infer
to the jury that there was some sort of deception on the County's
part. It However, Ms. Moralli ' s counsel's comments related to
properly admitted evidence. The jury can make inferences from
properly admitted evidence.
We conclude that these arguments, although not ideal, do not
constitute reversible error.
v.
Is there sufficient credible evidence to support the jury's
verdict?
We addressed this issue along with Issue I and concluded that
there was sufficient credible evidence from which the jury could
find in favor of Ms. Moralli.
Affirmed.
October 8. 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Dmiel W. Hileman
James E. Vidal
MURRAY & KAUFMAN, P.C
P.O. Box 728
Kilispell, MT 59903-0728
Douglas J. Wold
WOLD LAW FIRM
P.O.Box 1212
Polson, MT 59860-1212
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA