Cavalier Condominiums Association, et al., Appellants, vs. The City of Rochester, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-97-2191

Heidi Michelle Peterson,
Appellant,

vs.

McGrath Catholic Church, a part of the
Diocese of Duluth of the Catholic Church,
Respondent,

Roofers Local No. 96 Health and Welfare Fund,
Intervenor.

Filed July 14, 1998
Affirmed
Crippen, Judge

Kanabec County District Court
File No. C39661

Richard W. Curott, Curott & Associates, 116 S.W. Second Avenue, P.O. Box 206, Milaca, MN 56353 (for appellant)

Laura J. Schacht, Johnson, Killen, Thibodeau & Seiler, 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent)

Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Schultz, Judge.(1)

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant challenges the denial of her motion for a new trial, asserting that the jury's failure to make a general damage award is inconsistent with its award of money damages for past medical expenses and lost income. Respondent appeals the trial court's denial of its alternate motions for a new trial or JNOV on the issue of negligence, arguing that the trial court erred in allowing reference to the Uniform Building Code. We affirm.

FACTS

In March 1995, appellant fell down a flight of stairs at McGrath Catholic Church, breaking her ankle in three places. She underwent surgical pinning of her ankle and was in a cast for two months. After the cast was removed, appellant made limited efforts to rehabilitate her ankle with physical therapy. One year later the pins were removed in an attempt to alleviate the pain and swelling that appellant reported. Following six more weeks in a cast, appellant's condition improved significantly. At the time of trial, appellant was employed as a beverage server at a casino and testified that she was able to do whatever she wanted, just not as often.

Prior to trial, respondent moved to exclude reference to the Uniform Building Code, arguing that neither the county nor the city in which the church is located had adopted the code. The trial court ruled that the code could be used to establish the standard of care, but not to establish negligence per se. As a result, appellant's expert witness was allowed to testify that the stairway was built below code standards. He concluded that the stairway was not in a safe condition and caused appellant's fall.

After a five-day trial, the jury found the church 100% negligent. Appellant was awarded $14,339.70 in stipulated medical expenses and $12,055.33 in lost income (72% of her wage loss claim). The jury, however, denied any present or future damages for pain, disfigurement, embarrassment, or emotional distress.

D E C I S I O N

On appeal from a denial of a motion for a new trial, the verdict must stand unless "it is manifestly and palpably contrary to the evidence." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). Likewise, the denial of a motion for JNOV should not be disturbed if there is any competent evidence that reasonably tends to sustain the verdict. Id. We review the evidence in the light most favorable to the verdict.

1. Damages

To assert a reversible error of the jury, appellant relies solely on Pehrson v. Kistner, 301 Minn. 299, 222 N.W.2d 334 (1974), and Seydel v. Reuber, 254 Minn. 168, 94 N.W.2d 265 (1959), cases that reverse a verdict overlooking evidence on the amount of special damages. In both of these cases, the supreme court held that an award of damages in an amount less than proven special damages indicated passion and prejudice. In the immediate case, the jury awarded stipulated medical expenses and a percentage of lost income. Appellant does not claim that the jury erred in its determination of special damages.

Although the denial of general damages is in spite of undisputed pain associated with at least the initial injury, there is no precedent for requiring an award of general damages. As respondent urges, the jury instructions on general damages advising that "[t]here is no yardstick by which you can value these items exactly" correctly explicates the fact that the law does not compel a general damages award.

As the trial court noted, the jury may have concluded that appellant or her supporting witnesses were exaggerating her pain. This possibility is suggested by the orthopedic surgeon's testimony that appellant's fracture healed normally within six to eight weeks; the surgeon's August 1995 note that appellant reported "she is doing almost everything that she wants to"; the surgeon's March 1996 note that appellant "is able to walk without difficulty"; the fact appellant was placed on no work restrictions; appellant's failure to pursue physical therapy aggressively; and a priest's testimony that during the trial he observed appellant readily navigating the stairs. The verdict of no general damages can be reconciled with this record. Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993) (special verdict should not be disturbed if it can be reconciled on any theory); Bresson v. Stoskoph, 370 N.W.2d 80, 83 (Minn. App. 1985) (upholding verdict of no damages for pain and suffering because proof about significance of injury was not sufficient to mandate finding of compensable damages), review denied (Minn. Sept. 13, 1985).

2. Uniform Building Code

Under Minn. Stat. § 16B.72 (1996), rural counties are not required to adopt the state building code. We have previously held that it is appropriate to limit testimony regarding nonconformity with a building code where no showing has been made that the structure in question was required to comply with the code. Rowe v. Goldberg, 435 N.W.2d 605, 607 (Minn. App. 1989), review denied (Minn. Apr. 24, 1989). But absent a clear abuse of discretion, we leave rulings on the admissibility of evidence to the sound discretion of the trial court unless it is demonstrated that the alleged error was prejudicial. Thies v. St. Paul's Evangelical Lutheran Church, 489 N.W.2d 277, 279 (Minn. App. 1992).

Here, the building code was not admitted to suggest negligence per se. Rather, the jury was instructed that the evidence concerning industry standards was not conclusive but should be considered with all of the other evidence in deciding whether respondent was negligent. Considering all of the evidence submitted, this was not prejudicial error meriting reversal of the trial court's evidentiary ruling. Cf. Mervin v. Magney Const. Co., 399 N.W.2d 579, 582 (Minn. App. 1987) (where used to establish negligence per se, admitting a safety manual that had never been enacted as a statute or ordinance was prejudicial error).

Affirmed.

1 Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.