PALMTAG V. GARTNER CONSTRUCTION CO. 513 N.W.2d 495 (1994) CASE BRIEF

PALMTAG V. GARTNER CONSTRUCTION CO.

513 N.W.2d 495 (1994)

NATURE OF THE CASE: Construction (D) appealed a judgment for Palmtag (P) in her negligence action in that the trial court erred in denying its motion for a directed verdict and for judgment notwithstanding the verdict.

FACTS: Ps hired D to remodel their newly purchased home under an oral arrangement. D was given the keys to the house. Ps visited the structure to monitor the progress of the work. D's employees never limited or restricted where Ps could go. D was to remove a spiral staircase. A hand railing located around the staircase was taken out after the treads and center post were removed, leaving an empty opening in the floor. D's employee 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 landing, however, was a separate piece of wood which had been toenailed into the rest of the floor. The barricade that was 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. P and her husband had arranged to meet at the house to review the remodeling work. P, 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 the worker responsible for the staircase who was leaving for the day. P 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. P warned her son not to get close to the stairwell. As she paused long enough for her son to pass by, the landing collapsed. P 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. P 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. P suffered a 20- to 25-percent permanent disability. Her pregnancy successfully came to term approximately a month after she fell. Sutton, an expert, testified that removing the plywood aprons and angle irons, coupled with the earlier removal of the center post, left nothing to support the landing other than the nails toenailing the landing to the rest of the flooring and the approximate 1-percent stability given by the tile which covered the entire area. In Sutton's opinion, the barricade the employee made did not comply with industry standards. He indicated that the proper barricade would have been either metal framing or a 2-by-4 stud wall with signs and flagging on it. P got the verdict and D appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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