Davis v. Church of Jesus Christ of Latter Day Saints
796 P.2d 181
Mont.
1990
Check Treatment

*1 GROVE DAVIS, JONNIE MUS Respondent Plaintiff v. THE CHURCH OF JESUS CHRIST OF DAY SAINTS;

LATTER Corporation Presiding Bishop Day Saints; Church of Jesus Christ Latter Corporation of the President of the Church of Day ;

Jesus Christ of Latter Saints Risk DIVISION, MANAGEMENT KALISPELL STAKE CENTER Day of the Church of Jesus Christ of Latter (unknown Saints; divisions, and John i-x Does Departments, Subsidiaries, Affiliates, incorporated Associations, whether or unincorporated, Agents, Employees, Bishops, any Entity Assigns, Presidents, other

Person Related to of the Above-Named Appellants. Defendants), Defendants No. 89-466. on Briefs Submitted Feb. 1990. July 12, Decided 1990. 796 P.2d 181. *3 O’Brien;Hash, Bartlett, Kalispell, & for defen- E. O’Brien

Kenneth appellants. dants and Robinson, Miller, L. Murphy, & Pamela

Dana L. Christensen *4 Phillips; Kalispell, plaintiff respondent. for and & Heckathorn delivered the of the Court. Opinion McDONOUGH JUSTICE (Church) appeal the entered in the judgment The defendants District, County, Court, Eleventh Judicial Flathead award- District ing Musgrove damages personal Jonnie Davis in the $401,864.28. amount of affirm the We District Court.

The issues raised the Church are: 1. Whether there was substantial evidence to verdict.

2. Whether it was error to allow Dr. Alexander McNeill to render opinion degree slope walkway. as to 3. Whether giving the District Court erred in proposed Davis’ 21, 22, 24, 27, 30, instructions nos. 28 and refusing and the Church’s 36, proposed instructions nos. 43 and 44. (Davis)

Plaintiff respondent and Musgrove Jonnie Davis brought July 20, a lawsuit injuries on 1987 to recover for suffered as a result of a fall the premises of the Kalispell Stake Center of the Church of Jesus Christ of Day Latter Saints. In her complaint alleged Davis (1) negligent Church was failing to design and construct (2) (3) reasonably sidewalk, safe failing handrail, to erect a failing properly walkway by maintain the allowing an unnatural accumu- (4) lation of ice to present, be and failing to warn of the dangerous condition.

At the time accident, youth Davis was a seminary volunteer teacher at the Kalispell 25, 1985, Stake February Center. On she arrived at the Center approximately at 6 a.m. Several inches of snow had fallen during the night; but Davis entered the Center without difficulty.

During Davis’ seminary classes, janitor the Church arrived and walkway. shoveled the Usually he applied prevent salt to ice up. build However, on this applied. occasion none was completed

Davis by a.m., her proceeded classes and to exit the building. left, As she shoveled, she noted that walkway had been and she started to walk towards her car. top portion of the walk nearly level, problem Davis had no negotiating it. At the midpoint however, of the walkway slope downward increased. In this four to six long span, foot the sidewalk had been altered to remove two steps which present original were in the construction. The walk was reconstructed elderly to enable and wheelchair-bound church members easier access. slope slipped As Davis descended this she fell, landing on her head and neck. injuries, As a result of her Davis has undergone five operations spine. to her cervical

Davis filed suit in 1987. In the summer of subsequent accident, the Church redesigned replaced portions of the walk- *5 66 ofthe measurement Consequently, no exact

way due to deterioration. at trial. determined Davis fell couldbe walkway the where gradient of a directed verdict. case, Church moved for Davis’ the At the close of new trial. motion for denied, subsequent was as was motion finding a then, exists for now, that no basis contends as The Church the Church. part on the of negligence of jury, a we need findings of appeal an from Because this is of support in evidence only there is substantial determine whether requires review standard of appropriate verdict. The they are not appeal unless reversed on findings a shall not be of Krafters, Inc. v. Eastside Kitchen by substantial evidence. supported (Mont. 567, Sub 1990), St.Rep. 47 602. 789 P.2d Bank Montana of mind that a reasonable as that evidence evidence is defined stantial may it Although to a conclusion. might accept adequate as evidence, in to rise to the conflicting order upon be based weak trifling than greater it must be evidence level of substantial (Mont. Britton, 1990), 784 P.2d et al v. frivolous. Christensen St.Rep. 2223. supported jury’s verdict is maintains that the

The Church contention we must In to address this order by substantial evidence. City Wheelerv. most favorable to Davis. light in a review the evidence (1988), 757 P.2d 345. 232 Mont. Bozeman negligent Church was alleged that the complaint, In her Davis walkway which and maintain design, construct failing properly to She also Kalispell Stake Center. doorway led to the main her of the failing to warn negligent was alleged that the Church asser- walkway. prove In order to these of this dangerous condition tions she must establish: walkway

1) to construct and maintain duty had a The Church reasonably condition. in a safe

2) duty. The Church breached

3) damages. Davis to sustain breach caused The Church’s Inc., at 567. 789 P.2d Krafters, Kitchen See after she Davis did not sustain No one contends Therefore,- only need review we the sidewalk. upon and fell slipped was substantial evidence whether there to determine the evidence duty provide safe the Church had a for the to determine breached, duty and whether church, this whether access to the v. Noreast Devel- injuries. See Blaskovich Davis’ that breach caused (Mont. 1990), opment [326,] 977, 47 Corp. St.Rep. [242]Mont. 790P.2d 740. duty ordinary

The law is clear that a has to use landowner maintaining reasonably care in his in a safe or to premises condition legally lurking warn dangers. those on the land hidden or Stores, Safeway Luebeck v. Inc. 152 Mont. 446 P.2d 921. law, elementary duty Given this rule of it is Church had provide leading reasonably a sidewalk the church which safe. - question duty? then becomes did the Church breach this trial, At presented testimony concerning both sides condition walkway. Much of testimony slope this centered around the *6 portion that ofthe sidewalk led to the front which doors ofthe church. slope important The is Building requires because the Uniform Code that provided any greater handrails be on slope percent, than ten in this case no provided. handrails were The Church maintains that the slope gradient did not exceed percent. a of ten the Davis on other hand, slope ranged contends that the percent. from 16 to 25 parties

Both slope base their testimony presented calculations on by at presented by witnesses trial. Davis testimony given Dr. Alex McNeill, expert an in biomechanics. Dr. McNeill testified that the slope fell, of the walkway, where ranged Davis 25 percent. from 16 to Apparently, he opinion based this a upon photographs review of taken walk, of the numerous blueprints prepared in connection with the original construction, church depositions and a review of taken of various witnesses. presented

Davis also testimony Denning, long of Allan a time member of the church. His testimony primarily concerned his mem- ory of the way entrance itas existed at the time of the He accident. testified, child, that as a he During would slide the slanted area. down trial, in a response request counsel, to from picture he drew a to demonstrate the slope of the sidewalk. His picture slope indicated a approximately 24%. Church, in an attempt testimony to discredit the provided Dr. testimony McNeill and Mr. Denning, presented calculations and prove to its slope percentages, They which percent. did not exceed ten attempted Harry through testimony to bolster this evidence given Schmautz, Conat, a experienced licensed architect and Harold finisher, walkway. cement the who installed Both testified that the walkway dangerously steep was not and that no handrail was neces- sary. walkway, jury the heard slope to

In addition evidence day the on the testimony concerning the slickness of the sidewalk that janitor, Reading John testified In the church particular, accident. He further testified approximately he the at 7:30 a.m. shoveled walk the fact that despite salt to the sidewalk apply that he did not regularly past. done in the this was fall, testified Tatum, young witnessed Davis’

Dana woman who day Apparently, the of the accident. the sidewalk was slick on fell. shortly slipped Davis the before she had walked sidewalk slick she made her the sidewalk was so She testified that because ramp. her She further stated younger accompany down brother why applied no salt to at she wondered there was the time walkway. testimony, deter

Following all of this submission of and that responsible 76% mined that the Church was conflicting, it is testimony responsible. While the was Davis was 24% jury’s support to there substantial evidence apparent was unreasonably dangerous. Where findings was sidewalk given to credibility weight be conflicting evidence exists the Wheeler, at 345. 757 P.2d jury’s province. the evidence within unsafe and walkway found sufficient evidence that conflicting by weighing determination this Court will not overturn its Wheeler, appeal. 757 P.2d at 347. evidence finding There is also substantial evidence caused Davis unreasonably dangerous condition of the sidewalk only out point regard, In this we need slip injuries. and to sustain *7 icy and the opinion, slope in the that Dr. McNeill testified that his to fall. ramp of to cause Davis condition the combined will not again, and once we obviously testimony, with this agreed province. invade its is substantial that there

Our of the evidence establishes review of the part on the jury’s finding negligence of evidence to the supported action are of cause of Church. Each of the elements this are therefore findings by trial. The presented evidence at affirmed. allowing by erred that the lower court

The Church contends the sidewalk where slope to of opinion Dr. to offer an as the McNeill only retained was that Dr. McNeill injury the occurred. It maintains of dynamics testimony general the on purpose rendering for the of Church Accordingly, fall,” walk. slope on the ofthe people “how argues testimony improper they because were not his was adequately prepared challenge opinions through his cross- exami- nation. earlier, expert

As Dr. McNeill stated was retained Davis as deposition He at trial biomechanics. stated his at the time of may many that he looked at factors to determine what have caused the fall. his During deposition, Dr. McNeill made numerous refer- ences to the and its slope significance sidewalk formula- tion opinion of his as to how the fall He occurred. stated — “[essentially might the slope slope contribution that might fall, surface have made to that I have principally that’s what been asked to look at.” Dr. made it perusing McNeill clear that he was drawings surveys architectural in an attempt to determine the gradient slope. of It made trial was clear before that Dr. McNeill intended to an opinion contributing fall, render as to the factors to the gradient slope would one of be those factors. The Church’s contention divulge expert that Davis failed to that Dr. was an McNeill range slope witness is not well taken.

Finally, the Church contends the erred lower court its admission of a number of Davis’ instructions and the omission of several of the Church’s instructions.

The Church states Davis’ instructions Nos. 22 and 24 incor- rectly legal state the standard of causation.

Instruction 21No. reads: you liable,

“Before can you find the defendant must find the defendant’s negligence injury.” was of the plaintiff’s cause

Instruction 21No. is a verbatim transcription Montana Pattern (MPI) Instruction No. 2.06.

Instruction 22No. reads: injury helped

“The defendant’s conduct is a cause if it produce it injury and if the would not have occurred without it.” directly

Instruction No. comes from MPI 2.08.

Instruction 24No. states: plaintiff

“The has the proving: burden of “(1) That the was negligent. defendant “(2)That plaintiff injured. was

“(3) That the negligence defendant’s cause of the plaintiff.

“(4) her money compensate plaintiff amount of will injury.”

70 MPI directly 24 comes from 2.12.

The source for No. none of the above instructions refer The Church contends that cause, therefore erroneous. Church proximate legal and are 2.06, of MPI which inserted the word offered a modified version cause, paragraph involving inter- “proximate” and included before states as follows: vening superseding cause. The Church’s instruction liable, you find that the you can find the Defendant must “Before of the Plaintiff’s negligence proximate Defendant’s was a cause injury. which, in a natural proximate injury

“The of an is that cause cause independent new and sequence, by any unbroken continuous it not have cause, and without which would produces injury, occurred.” Inc., Krafters, expressly

In 789 P.2d at we Kitchen adequately instruct the MPI it does not disapproved of 2.08 because jury jury proximate In that case we reversed a verdict cause. jury adequately held was not plaintiff because we cause in fact instructed on causation. MPI 2.08 is an instruction on analysis applied that must be whenever part which is of a two-tiered confronted, Krafters, 789 P.2d at 574. question a causation Kitchen established, plaintiff prove cause-in-fact is must After In damages. cause ofhis order proximate defendant’s actions were the cause, proximate it must be shown establish the existence of reasonably wrongful act were consequences of the defendant’s cases, cause is one “[P]roximate foreseeable. As stated in earlier new, sequence, unbroken which a natural and continuous County cause, Young ...” v. Flathead independent produces causes,” (1988), independent 232 757 P.2d 772. “New and Mont. foreseeable, regarded superseding as generally which are are intervening the chain of causation absolve events which break Krafters, P.2d at 576. liability. the defendant Kitchen 789 of fact to be cause is an issue question proximate decided jury. Thayer v. Hicks [243] Mont. [138,] 47 issue, the 1082, 1095, addressing this P.2d 784. When St.Rep. 793 causation, forward, to determine through must look the chain of act subsequent to the defendant’s occurred whether events which events, If Krafters, P.2d at 575. which were foreseeable. Kitchen causation, produced unforeseeable, into the chain of were entered and the be established plaintiff’s injury, proximate cause cannot plaintiff’s must fail. actions us,

In the case now before the lower did not court instruct the *9 proximate on negligence cause. This is a action and prox- therefore imate cause must be established in plaintiff’s allegations order the Therefore, to prevail. the lower refusing court erred in to offer the Church’s proximate instruction on cause.

However, error, in order to constitute reversible the lower court’s actions must rights affect substantial of the complaining party. Rollins v. Blair 235 Mont. 767 P.2d 328. The objected Church to instructions Nos. 22 and 24 grounds on the they give appropriate did not proximate definition of cause. agree conclusion, We with this but fail to we see how the Church was prejudiced. objection In neither its to the lower court or its brief on appeal, argue does the Church there any were superseding intervening events which broke the chain of Furthermore, causation. there is no evidence argued, of such occurrences. Davis in pertinent part, ramp negligently designed and maintained. As earlier, stated found sufficient evidence to agree with this assumption. any There is no independent evidence that cause inter rupted the chain of events between wrongful the Church’s act and Davis’fall. We therefore hold the lower court’s refusal to instruct proximate error; cause was however in this case such error was harmless is not therefore reversible.

The Church assigns error to the District giving Court in Plaintiff’s Proposed pertaining Instruction to premises liability, which reads as follows:

“The defendant the duty ordinary has to exercise care to keep its premises reasonably persons foreseeably safe for all might who come upon them.

“In determining premises whether reasonably safe, you were should consider all of the surrounding by circumstances shown including, to, evidence but following not limited matters: “1. used; The manner in property which the is “2. The setting, location physical prop- characteristics erty;

“3. The type person reasonably who would be expected to visit premises; “4. specific The type alleged.” hazard or unsafe condition duty

The Church ordinary maintains that it had no exercise care keep premises reasonably the church safe for Davis because a natural present. accumulation of ice and snow was Under their to maintain ordinary care

theory, duty a has no exercise landowner dangerous condition is created reasonably if the premises safe Leubeck, 446 P.2d at 921. or See accumulation of ice snow. natural maintained, throughout must fail. Davis The Church’s contention its trial, only due to failure to negligent, the Church was condition, steep too icy its sidewalk was remedy the but also because involves more provide a handrail. This case and because it failed to reflects of ice and snow. This instruction simple than a accumulation theory, properly this and was therefore Davis’ instruction No. Church also takes issue with which states: upon property his duty persons to warn who come

“Anowner has a unsafe condition: temporary employees; “1. it or its created part.” on its by negligence “2. caused incorrect state- instruction Church contends above *10 finding a facts in the record ment of the law and no any unsafe negligently or an caused employee either the Chinch proposed that its instruction to exist. The Church contends conditions erroneously of the law and was proper is the statement No. 46 duty to warn No. 46 stated that no The Church’s instruction refused. ordinary an expect to danger exists if it be reasonable of a would danger. would observe the person duty to warn argues it had no agree. do not The Church

We injuries were “hidden or Davis’ the conditions which caused unless Stores, 229, (1967), Mont. Inc. 149 See Regedahl Safeway v. lurking.” instruc weight given as the This carries little 425 P.2d 335. assertion theory of the law, which fit Davis’ correct of the tion was a statement to the imputing negligence gave The court several instructions case. “universally aware of condition if should fail to see or be plaintiff she The court obviously so.” reasonably dangerous, [is] or to known be adaptable the theories of properly allowed instructions where the case, give offered instructions and refused to Church’s by Rollins adequately covered other instructions. subject matter 343, The Church cannot (1989), Mont. 767 P.2d 328. v. 235 Blair adaptable to gave court instructions error where the contend it was of law on statements and refused instructions cases parties’ both already covered. erred that the District Court argues

The Chinch further 30, as set forth follows: No. Proposed Plaintiff’s Instruction giving “A property may owner be held of hable falls on accumulations ice and by snow where the hazard created the natural accumulation by is increased or a new hazard is created affirmative act of the owner; property actually even where such a condition known obvious, may a property owner be held hable if he should have anticipated injuries dangerous would result from the condition.”

The Church asserts that justifying there are no facts this in- struction and that it is relating inconsistent with Montana law ato property duty owner’s respect with to natural of accumulations ice and snow.The Church maintains that the record is devoid of evidence that the Church anything walkway, did other than shovel the therefore this instruction is applicable and that is only appli- it presented by cable where the hazard a natural accumulation snow by has been increased the acts property owner. disagree.

We Instruction No. 30 is the law in relating Montana accumulations snow and ice. Cereckv.Albertsons 195 Mont. 409, Davis, case, 637 P.2d as part argued 509. of her that a sheen of janitor ice was left after the condition, shoveled the Such a walk. gradient walk, combined with the rendered the natural accu mulation snow and ice unnatural. instruction therefore related important part theory to an of Davis’ of the case. It would have been reversible error for the District Court to refuse to instruct the aspect theory. this of her

The Church claims the lower court in refusing give erred proposed 36,42 its instructions Nos. and 44. Instructions Nos. redundant, they 36 and 44 are as all adequately were addressed in instructions Nos. and 45. proposed by Church’s instruction No. 42 misconstrues law stating solely that a not negligent by removing landowner is the act of snow. Whether an affirmative act the landowner creates or question increases hazard can be fact to be determined *11 jury. correctly The trial court denied the instruction.

Affirmed. BARZ, HARRISON,

CHIEF JUSTICE TURNAGE and JUSTICES HUNT and WEBER concur. SHEEHY, specially

JUSTICE concurring: I in foregoing opinion. my concur I want to speak admiration judicial of sleight-of-hand by majority proper which the reach a slip-and-fall-on-snow mentioning result in a case without (Second) 343(A)(1) Torts, (1965), Restatement nor Kronen v. § of 74 nor Kaiser v. Town 1315, (1984), 208,

Richter Mont. 683 P.2d Limberhand v. 1341, 718 P.2d nor Whitehall 221 Mont. dif 491, nor Company (1985), 706 P.2d Big Ditch Mont. Corporation, Cause Development Noreast ferentiating Blaskovich v. 740,] (Decided 326], St.Rep. 10, 1990), [47 Mont. April [242 No. 89-117 790 P.2d 977. plaintiff’s instruction Opinion in this approval by this Court part least a approval is an at Opinion, out in the

No. set §343(A)(1) following: Restatement harm physical his not liable to invitees possessor

“A of land is danger whose any activity or condition on land them caused to them, anticipate possessor should known obvious unless knowledge or obviousness.” despite harm such even after Blaskovich. life, may yet have Aslip fall case Lesson: