Palmtag v. Gartner Constr. Co. - 245 Neb. 405, 513 N.W.2d 495 (1994)

Rule:

Where specific acts of negligence are alleged and supported by the evidence, it is error for the trial court to fail to instruct as to such allegations. However, to establish reversible error in a trial court's refusal to give a requested instruction, one has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating a reversal.

Facts:

Plaintiff Janet and her husband, John Palmtag, hired Gartner Construction Co. to remodel their newly purchased home under an oral arrangement whereunder Gartner was to be paid for time and materials. Gartner was given the keys to the house, and Janet and her husband visited the structure to monitor the progress of the work. The remodeling included the removal of a spiral staircase which was located in the main floor entry area and descended therefrom to the basement through a 5-foot-square opening. A handrailing located around the staircase was taken out after the treads and center post were removed, leaving an empty opening in the floor. David Njus, an employee of Gartner, removed the plywood aprons and angle irons which were located along the underside of the landing, thus leaving the plywood floor around the opening jutting "something like a diving board out in the air." After Njus removed the treads, aprons, and angle irons, he wondered how springy the outer edge of the flooring would be and checked it before leaving that evening by reaching up from the basement and hanging his full weight, 165 pounds, on it; nothing gave way. He then hung a wire and plywood barricade across the handrailing and walked on top of the landing area; he felt no sensation of weakness in it. In Njus' opinion, the landing felt solid, and he was "not anymore" concerned about the landing "not holding anybody's weight." Njus believed the landing would stay in place because he thought it was a contiguous part of the rest of the floor of the house. The barricade Njus hung was suspended diagonally across the landing from handrail to handrail on the main floor. It did not cover the hole and left half of the landing unguarded. No warning signs were attached to the barricade. Janet and her husband had arranged to meet at the house to review the remodeling work. Janet, who was then 8 months pregnant and weighed 200 pounds, arrived at the house at about 5 p.m., accompanied by her 3-year-old son. She met and spoke briefly with Njus and an unidentified employee of Gartner, who were leaving for the day. As she walked through the entry area, she did not know the staircase had been removed, but noticed "a wire with something hanging on it" and paused approximately 8 to 9 inches from the wire. She then saw that the staircase was gone, at which time she was probably about a foot from the opening. Plaintiff warned her son not to get close to the stairwell. As she paused long enough for her son to pass by, the landing collapsed. As a consequence, she fell to the basement floor and landed on her seat and hands, after which her back and head hit the floor. Her face hit something on the way down. When the husband found plaintiff, she was in extreme pain and somewhat delirious. Janet could not feel the fetus move, and both she and her husband thought she had ruptured her uterus. Janet was hospitalized for 3 days following the accident and was diagnosed as having a 20-percent compression fracture of her 12th thoracic vertebra, a torus fracture of her right wrist, a sprained left ankle, and a very painful tailbone area. As a result of the compression fracture in her back, Janet suffered a 20- to 25-percent permanent disability. Janet thus filed the instant action for negligence. A jury found in favor of plaintiff in her negligence action that alleged defendant failed to warn or protect her. On appeal, the court did not consider defendant's appeal from the district court's denial of its motions for directed verdict and judgment notwithstanding the verdict because defendant proceeded to enter evidence at the end of plaintiff's case and failed to renew the motion at the close of all the evidence. 

Issue:

Did the district court err in giving instructions to the jury, thereby warranting reversal?

Answer:

Yes.

Conclusion:

The district court advised the jury that it was Janet’s burden to prove, among other things, that Gartner had "failed to use reasonable care to protect" her from the condition described elsewhere in the instruction. That was an acceptable means of informing the jury that in order for plaintiff to recover, it was necessary that she prove that defendant had breached its described duty by having failed to exercise the requisite degree of care toward her. The difficulty was that nowhere in its instructions did the district court define reasonable care as being that degree of caution which an ordinary, or reasonably prudent, person would exercise under like circumstances. As a consequence, the instructions erroneously and prejudicially failed to limit the jury's consideration to the degree of caution a reasonably prudent contractor would have exercised in like circumstances.