Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson

Appellate Court of Illinois, Second District

September 12, 2018, Order Filed

No. 2-17-0707

Reporter

2018 IL App (2d) 170707-U *; 2018 Ill. App. Unpub. LEXIS 1529 **

TRACEY GROSCH, Individually and as Mother and Next Friend of Riley Grosch, a Minor, Plaintiff and Counterdefendant-Appellant, v. BRIAN ANDERSON, JO ANDERSON, CARY-GROVE EVANGELICAL FREE CHURCH, d/b/a Living Grace Community Church of Cary, Defendants and Counterplaintiffs-Appellees.

Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

Prior History:  [**1] Appeal from the Circuit Court of Kane County. No. 14-L-619. Honorable James R. Murphy, Judge, Presiding.

Disposition: Affirmed.

Judges: JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Burke concurred in the judgment.

Opinion by: BIRKETT

Opinion

JUSTICE BIRKETT delivered the judgment of the court.

Justices McLaren and Burke concurred in the judgment.

ORDER

 [*P1] 
Held: The trial court properly granted summary judgment in favor of defendants because the fire pole was an open and obvious condition and no exception existed, and there were no genuine issues of material fact sufficient to preclude summary judgment.

 [*P2]  Plaintiff, Tracey Grosch, individually and as mother and next friend of Riley Grosch, a minor, appeals the judgment of the circuit court of Kane County, granting summary judgment in favor of defendants, Brian Anderson, Jo Anderson, and the Cary-Grove Evangelical Free Church d/b/a Living Grace Community Church on plaintiff’s claims of negligence related to Riley’s fall as he was attempting to slide down a fire pole in the Andersons’s back yard during an event sponsored by the Church’s youth ministry. On appeal, plaintiff argues that the trial court erred in relying on the open-and-obvious doctrine and in concluding [**2]  that there were no genuine issues of material fact sufficient to preclude summary judgment. We affirm.

 [*P3]  I. BACKGROUND

 [*P4]  We summarize the pertinent facts. On November 14, 2016, the Andersons were members of the Church; plaintiff’s family attended the Church, but were not members. According to Pastor Cory Shreve, quite a few more people attended the Church than were members. Shreve was the youth pastor and was responsible for running and administering the Church’s youth ministry. He was in charge of the Radiate program which provided for fellowship and religious mentoring of youths beginning in seventh grade and ending upon high school graduation. Radiate was open to members and attendees, and it incorporated youths from other churches and even the “unchurched” as well. Radiate had contacted the Andersons seeking to hold a bonfire at their home; the group had held a bonfire there previously.

 [*P5]  In the Andersons’ back yard, Brian had constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground. The platform was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection. The [**3]  platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3 1/2 inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.

 [*P6]  Brian explained that he built the platform and fire pole for his children. Both Brian and Jo testified in deposition that between 150 to 200 people had used the pole, all without injury. Brian testified that he was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work; no fall protection was installed or available on the platform. Brian testified that he did not research or follow any building codes for the platform and fire pole.

 [*P7]  On the day of the Radiate event, Shreve arrived 15-30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. Plaintiff dropped off Riley and then went shopping nearby, intending to finish shopping and then return for the balance of the [**4]  event. Jo was inside the house for the event, and she monitored the food and drinks, making sure that there was plenty for all of the guests. She also socialized with the other parents. Brian was also inside socializing. Shreve was monitoring the bonfire. At one point, he intercepted one of the youths who tried to jump over the bonfire and explained to the youth why that was not a wise decision. At the time of Riley’s accident, Shreve had gone inside.

 [*P8]  Riley, the Andersons, and Shreve all testified that it was a cool or cold evening, estimating the temperature was anywhere from the 20s to the 40s. According to Shreve and Brian, the point of the event was the bonfire and indoor fellowship; the youths attending were not expected to play in the back yard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool, basketball, and board games were available. After about an hour outside, Shreve went inside, planning to steer the event towards worship. One of the youths came inside and alerted Shreve and the adults that Riley was hurt.

 [*P9]  Riley testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the [**5]  platform while waiting for his turn, he put on gloves. Riley testified that the gloves were like ski gloves, and believed they were slick, possibly made of nylon. Riley testified that he awaited his turn along with several other youths. On that day, Riley was 13 years of age. He grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As Riley began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. Riley suffered a comminuted fracture of his left femur and broke several long bones in his right foot. Riley’s femur was repaired surgically, and he had a rod emplaced in the bone. There is a possibility that the rod may have to be removed at a future date. Riley also developed a foot drop following his fall from the platform.

 [*P10]  The adults came out to investigate after they were notified. One of the youths, an Eagle Scout, obtained a rigid table top, and after they had ascertained that Riley had no apparent head or spinal injuries, placed him on the table top and moved him inside. Their purpose was to get him off of the cold ground; Riley apparently was complaining of resting [**6]  on the cold ground. Plaintiff was informed and told to return to the Andersons’ house. According to Brian, she arrived in minutes; plaintiff and other deponents testified that it was closer to 20 minutes. Eventually, an ambulance was called. It appears that plaintiff made the call for an ambulance as the other adults wanted to defer to her wishes. The ambulance took Riley to the hospital where he was treated for his injuries.

 [*P11]  Shreve and the Andersons testified that, when the plans were made to use the Anderson property for the Radiate bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, Brian testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.

 [*P12]  Plaintiff’s expert, Alan Caskey, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. Caskey opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to Riley’s injury, because the excessive width of the pole decreased the strength of the user’s grip of the [**7]  pole. Caskey did not, however, offer any opinion about the effect of Riley’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. Caskey also specifically noted that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. Caskey also opined that the darkness could have contributed to Riley losing his grip on the pole because it obscured the size of the pole and its texture. However, Caskey admitted that these were assumptions on his part, and he conceded that there was no testimony specifically addressing these issues.

 [*P13]  As to the procedural posture of this case, on December 15, 2014, plaintiff timely filed her initial complaint; on February 19, 2015, plaintiff filed the first amended complaint at issue in this case. On April 28, 2016, the Andersons filed their motion for summary judgment followed on June 29, 2016, with the Church’s motion for summary judgment. The motions were stayed while plaintiff procured her expert testimony. [**8]  In November 2016, defendants filed their counterclaims against plaintiff.

 [*P14]  On March 16, 2017, plaintiff filed a motion for leave to file a second amended complaint, which the trial court granted. On March 31, 2017, the Church, joined by the Andersons, filed a motion to vacate the trial court’s grant of leave to file the second amended complaint. On April 6, 2017, the trial court vacated its order granting leave to file the second amended complaint and reinstated the briefing schedule on defendants’ motions for summary judgment.

 [*P15]  On May 15, 2017, the trial court apparently heard the parties’ arguments regarding defendants’ motions for summary judgment. On that date, the trial court continued the cause until June 2, 2017, for ruling. On June 2, 2017, the trial court entered summary judgment in favor of defendants and against plaintiff. The court specifically held that:

“defendants owed no duty to plaintiff based on the open and obvious nature of the subject condition [(the platform and fire pole)] on the property; there being no proximate cause between the condition on the property and the injury to [Riley]; and there being no question of material fact raised by plaintiff.”

The trial court [**9]  entered judgment for defendants and dismissed plaintiff’s case. No transcripts of either the argument or the pronouncement of judgment were included in the record.

 [*P16]  On June 30, 2017, plaintiff filed her motion to reconsider. On August 11, 2017, the trial court denied plaintiff’s motion to reconsider, and plaintiff timely appeals.

 [*P17]  II. ANALYSIS

 [*P18]  On appeal, plaintiff argues that the trial court erred in holding that the platform and fire pole presented open and obvious conditions precluding the imposition of a duty. Plaintiff specifically contends that the design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious; alternatively, plaintiff argues that the distraction doctrine should apply. Plaintiff also contends that there is a genuine issue of material fact regarding “the true cause” of Riley’s fall. We consider the arguments in turn.

 [*P19]  A. General Principles

 [*P20]  This case comes before us following the trial court’s grant of summary judgment in favor of defendants. In deciding a motion for summary judgment, the court must determine whether the pleadings, depositions, admissions, and affidavits in the record [**10]  show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). The purpose of summary judgment is not to try a factual issue but to determine if a factual issue exists. Monson v. City of Danville, 2018 IL 122486, ¶ 12. While summary judgment provides an expeditious means to resolve a lawsuit, it is also a drastic means of disposing of litigation. Id. Because of this, the court must construe the record strictly against the moving party and favorably towards the nonmoving party, and the court should grant summary judgment only if the moving party’s right to judgment is clear and free from doubt. Id. We review de novo the trial court’s judgment on a motion for summary judgment. Id.

 [*P21]  Here, plaintiff alleged that defendants were negligent regarding the platform and fire pole. In a negligence action, the plaintiff must plead and prove that the defendant owed the plaintiff a duty, that the defendant breached the duty owed, and that an injury proximately resulted from the breach. Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578, ¶ 12, 394 Ill. Dec. 906, 37 N.E.3d 385. The existence of a duty is a question of law and may properly be decided by summary judgment. Id. If the plaintiff cannot demonstrate the existence of a duty, no recovery by the plaintiff [**11]  is possible, and summary judgment in favor of the defendant must be granted. Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067, ¶ 12, 396 Ill. Dec. 315, 39 N.E.3d 1141. With these general principles in mind, we turn to plaintiff’s contentions.

 [*P22]  B. Open and Obvious

 [*P23]  Plaintiff argues the trial court erred in determining that the platform and the fire pole were open and obvious conditions precluding the finding of a duty on the part of defendants. As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 384, 502 N.E.2d 826, 104 Ill. Dec. 329 (1986). The analysis of duty with respect to children follows the customary rules of negligence. Id. This means that a dangerous condition on the premises is deemed one that is likely to cause injury to a general class of children, who, by reason of their immaturity, might be unable to appreciate the risk posed by the condition. Id. However, the open-and-obvious doctrine may preclude the imposition of a duty. Id.

 [*P24]  Recently, this court gave a thoroughgoing analysis of the open-and-obvious doctrine, how exceptions to that doctrine are accounted for, and, ultimately, how duty is imposed [**12]  in these types of cases. Bujnowski, 2015 IL App (2d) 140478, ¶¶ 13-46.1 We concluded that, in cases in which the open-and-obvious doctrine applies, the court will consider whether any exception to the doctrine applies, such as the distraction exception (id. ¶ 18 (discussing Ward v. K Mart Corp., 136 Ill. 2d 132, 149-50, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990) (it is reasonably foreseeable to the defendant that the plaintiff’s attention might be distracted so that the plaintiff will not discover or will forget what is obvious)) or the deliberate-encounter exception (id. ¶ 32 (discussing LaFever v. Kemlite Co., 185 Ill. 2d 380, 391, 706 N.E.2d 441, 235 Ill. Dec. 886 (1998) (it is reasonably foreseeable to the defendant that the plaintiff, generally out of some compulsion, will recognize the risk but nevertheless proceed to encounter it because, to a reasonable person in the same position, the advantages of doing so outweigh the apparent risk)). When no exception applies, the court proceeds to the general four-factor test for imposing liability: (1) whether an injury was reasonably foreseeable; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. Id. ¶ 19 (quoting Ward, 136 Ill. 2d at 151).

 [*P25]  We held that the case law had developed into two approaches in applying the four-factor [**13]  duty test. In one approach, the first two factors will favor the defendant (because the danger is open and obvious), and the court must consider the third and fourth factors which could, at least theoretically, counterbalance the first two factors. Id. ¶ 46. Under the second approach, which we deemed to be more consistent with section 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts § 343A (1965)) on which our supreme court had relied, the last two factors could never outweigh the first two factors, so even if the burden and consequences were minimal, the defendant necessarily would not have any duty to the plaintiff. Bujnowski, 2015 IL App (2d) 140478, ¶ 46.

 [*P26]  Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 885, 916 N.E.2d 1153, 334 Ill. Dec. 265 (2009). The risk that confronted Riley as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk. We next turn to whether there is an available exception to the open-and-obvious doctrine.

 [*P27]  Plaintiff first argues that the distraction exception applies here. The distraction exception had its genesis in Ward, 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288. In that case, a shopper exited the store carrying large mirror he had just purchased and was injured when he walked into a [**14]  concrete post. Id. at 135. The court explained that, even though the post was an open and obvious condition, harm was nevertheless reasonably foreseeable because the store had reason to expect that its customer’s attention may have been distracted so that the customer would not have discovered what is obvious, or would have forgotten what was discovered, or would have failed to protect himself. Id. at 149-50.

 [*P28]  In support of her argument that the distraction exception should apply, plaintiff cites only Ward and Sollami v. Eaton, 201 Ill. 2d 1, 15-16, 772 N.E.2d 215, 265 Ill. Dec. 177 (2002). Ward gave several examples of circumstances in which the distraction exception could apply. As an example, stairs are generally not unreasonably dangerous, but they may be so if, under the circumstances, the plaintiff may fail to see the stairs. Ward, 136 Ill. 2d at 152. Additionally, an open and obvious condition may nevertheless be unreasonably dangerous if it exists in an environment in which the plaintiff is attending to his or her assigned workplace duties and encounters the condition. Id. at 153. For example, a builder carrying roof trusses steps into an open hole in the floor, or a dock worker unloading a truck steps off of a lowered dockplate while unloading a truck, or a customer falls when he or she misses the step off of the stoop [**15]  at the entrance to the store, are all instances in which the defendant should have foreseen the risk of harm caused by the otherwise open and obvious condition.

 [*P29] 
Sollami, by contrast, involved a child “rocket jumping” on a trampoline with several other children when she injured her knee after being “rocketed” to a greater-than-usual height and landing on the surface of the trampoline. Sollami, 201 Ill. 2d at 4. After briefly discussing the parameters of the distraction exception (id. at 15-16), the court held that there was no evidence to show that the child was distracted while jumping on the trampoline (id. at 16). In other words, the child was using the trampoline as she intended to, and she was fully aware of the danger jumping on it may have presented.

 [*P30]  Considering the evidence in the record, we conclude that there was no evidence of distraction presented in the record. Riley climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with [**16]  only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that Riley was distracted. He was not going about his profession or avocation as in the examples in Ward when he encountered the condition. Rather, he was participating in using the fire pole as he intended, as in Sollami. Indeed, Riley attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.

 [*P31]  Plaintiff argues that the darkness of the evening distracted Riley from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. Riley had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, Riley would have perceived it as he grasped it. Brian Anderson testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around [**17]  it. Riley testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.

 [*P32]  We also note that there is no evidence that Riley stepped through the opening while trying to use the fire pole, which would, perhaps, have brought the circumstances within the examples in Ward in which workers encountered a condition that was otherwise open and obvious while performing work-related tasks. Instead, Riley testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that Riley was distracted by the darkness and the other children, or that the presence of darkness and other children were sufficient to demonstrate a factual issue in the absence of any evidence [**18]  that these purported distracting circumstances contributed in Riley’s fall.

 [*P33]  The deliberate-encounter exception is usually raised in cases in which an economic compulsion (such as employment) causes the plaintiff to encounter the dangerous condition because, to a reasonable person in that position, the advantages of doing so outweigh the apparent risk. Sollami, 201 Ill. 2d at 15-16. Plaintiff does not contend that the deliberate-encounter exception is applicable to the circumstances. While the deliberate-encounter exception may not be limited to circumstances of economic compulsion, there is no evidence that Riley was under any compulsion, such as peer pressure, to attempt to slide down the fire pole. Because there is no evidence, we hold the deliberate-encounter exception does not apply.

 [*P34]  In the Bujnowski analytical framework, we now turn to the four-factor duty test. Because the condition was open and obvious, namely falling from a height, Riley’s injury was not reasonably foreseeable, because falling from a height is among the risks that even very young children (and Riley was not a very young child but 13 years of age) are capable of appreciating and avoiding that risk. Qureshi, 394 Ill. App. 3d at 885. Likewise, the likelihood of injury is [**19]  small because the risk was apparent. Thus, the first two factors strongly favor defendants.

 [*P35]  The remaining factors appear to be split between plaintiff and defendant. The burden of guarding against the injury appears relatively slight. Defendants could have forbidden the children to use the platform and fire pole. The consequences of placing the burden on defendants are perhaps greater. The Andersons testified that they erected the structure for the amusement of their children. They also testified that of hundreds of users and uses, no one had ever been injured, from young children to older adults. (Plaintiff testified that one of the Andersons told her that one of their children had been injured using the fire pole; the Andersons denied making this statement and denied that any of their children had been injured using the fire pole.) The consequences of forbidding the structure’s use that evening would have been miniscule; the consequences of forbidding access altogether would have been much greater. Even if this calculus on the final two factors favors plaintiff, we cannot say that, in light of the open and obvious nature of the hazard, that they outweigh the first two factors. See [**20] 
Bujnowski, 2015 IL App (2d) 140578, ¶ 55 (no published case has held both that the open-and-obvious doctrine applied without any exception being present and the defendant still owed a duty to the plaintiff). Accordingly, we hold that defendants did not owe Riley any duty in this case.

 [*P36]  Plaintiff argues that the hazard in this case was not open and obvious. Plaintiff argues first that the fire pole, being almost twice the diameter recommended in the industry, was a hidden and dangerous condition. We disagree. The risk posed by the structure was a fall from a height, and the evidence shows that Riley made the climb up to the platform and fell when he had donned slick nylon-shelled ski gloves and did not wrap his arms and legs around the pole.

 [*P37]  Plaintiff argues that the darkness of the evening concealed the width of the pole from Riley. Riley did not testify that he fell through the opening because it was too dark to see. Rather, he testified that he fell when he tried to slide down without wrapping his arms and legs around the pole and when his slick gloves caused his grip to fail. We reject plaintiff’s contentions.

 [*P38]  Plaintiff contends that, due to the construction of the structure and the darkness of the evening, the dangers [**21]  associated with it were not obvious to Riley. We disagree. Riley climbed up to the platform, so he knew that he was very high above the ground. The risk of a fall from a height was therefore clearly apparent, as even very young children are deemed to appreciate the risk of a fall from a height. Qureshi, 394 Ill. App. 3d at 885. We therefore reject plaintiff’s contention and persist in holding that the risk was open and obvious.

 [*P39]  As plaintiff has neither convinced us that the risk was not open and obvious nor that any exception to the open-and-obvious doctrine was applicable, we affirm the judgment of the trial court on this point.

 [*P40]  C. Factual Issues

 [*P41]  Plaintiff argues there is a factual issue whether Riley’s slick gloves or the 3 1/2-inch diameter of the pole caused Riley’s fall. Plaintiff contends that Caskey testified that the pole was so wide that Riley had inadequate grip strength to descend safely (perhaps implying the converse that, if the pole were narrower, Riley’s grip strength would have been adequate). Plaintiff concludes that there is a factual issue regarding the mechanism of Riley’s fall, and this issue should have precluded summary judgment.

 [*P42]  We disagree. Even conceding a factual issue in the mechanism [**22]  of Riley’s fall, defendants did not owe Riley any duty because the risk of a fall from a height was open and obvious, no exception to the open-and-obvious doctrine applied, and the final two factors of the four-factor duty test did not outweigh the first two factors. Thus, the factual issue regarding the mechanism of Riley’s fall was not material in the absence of a duty.

 [*P43]  Plaintiff also contends that defendants owed a duty to instruct Riley on the use of the pole. While this contention is perhaps structurally misplaced in plaintiff’s argument, it is unavailing. The danger of the structure to Riley was open and obvious: a fall from a height. If, as plaintiff appears to contend, Riley did not know how to descend a fire pole, the risk of a fall from a height was still something he could appreciate. Under the law, then, Riley is deemed to be able to appreciate and avoid that risk, including his own limitations on using the fire pole to descend from the height. Accordingly, we reject plaintiff’s contentions.

 [*P44]  We close with the following observation from Bujnowski: “[t]ragic as the facts of this case are, they are not extraordinary in a legal sense and do not call for a result that would [**23]  appear to be without precedent.” Bujnowski, 2015 IL App (2d) 140578, ¶ 55.

 [*P45]  III. CONCLUSION

 [*P46]  For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

 [*P47]  Affirmed.

End of Document


Failing to let go, “volunteer” teacher falls of zip line & recovers $1,650,000

No defenses, no release, just a trail and an appeal which the plaintiff lost. Have EVERYONE sign a release, including staff and volunteers of your guests

Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576

State: Minnesota

Plaintiff: Linda Timmer and her husband Jere Timmer

Defendant: Shamineau Adventures

Plaintiff Claims: Negligence

Defendant Defenses:

Holding: For the Plaintiff, final damages of $1,650,000

Year: 2005

There is not a lot of factual information to be learned in this case. There are several procedural issues that can be helpful in understanding the law as well as identification of a gaping hole in the risk management planning for this defendant. A risk-management weakness that cost the defendant $1,650,000.

The plaintiff was a teacher employed by the school district that was attending the ropes’ course. The case does not state whether this is a worker’s comp subrogation case or whether the plaintiff was working at the time and covered by worker’s compensation.

The ropes course director asked the plaintiff if she wanted to assist with the students at the zip line. The court went into a detailed explanation of the zip line and how it operated. Basically, the zip line was 300 feet long going from a tower to a platform across a valley. The zip line sagged in the middle so the riders slowed as the approached the platform going uphill.

The plaintiff was given a few minutes of instruction and was shown how to detach riders from the zip line on the platform. A student arrived at the platform, and the plaintiff grabbed her and attempted to disconnect her from the zip line. The student started to drift backwards still attached, and the plaintiff grabbed her. The student and plaintiff drifter backwards to the low point of the zip line which left the plaintiff holding on 25’ above the ground. The plaintiff let go and fell suffering injuries.

The plaintiff sued, and the defendant lost at trial. The jury awarded $4.5 million to the plaintiff and split the damages 60% of the liability to the defendant and 40% to the plaintiff. This resulted in an award for the plaintiff of $2,783,949.

Analysis: making sense of the law based on these facts.

The issues on appeal were whether the defense had time to deal with the new plaintiff’s expert witness, whether the jury apportioned the damages correctly, whether a motion for the new trial should have been granted and whether all of this should have allowed the defense to have a continuance. All of those issues are discretionary. That means the judge has discretion to make decisions and unless those decisions are so grossly out of line the appellate court will not over turn them.

One issue that is worth examining, and that is the remittitur. A remittitur is a reduction in the amount awarded by the jury by the judge. The jury awarded $2,783,949. The judge reduced the amount to $1,650,000 in an effort to resolve some of the issues in post-trial motions. Normally, this is done by the judge because the amount awarded by the jury exceeds the amount the plaintiff asks for. The alternative is the judge orders a new trial. This places the plaintiff in a quandary. Try again at trial to get more money or take what the judge has offered.

Here the defense was arguing the amount awarded was excessive, and the other issues enumerated above and the plaintiff had to accept less money than awarded or go through the entire process again.

The appellate court agreed with the trial court on all of its decisions. None of the arguments presented on appeal by the defendant concerned defenses so it is difficult to determine what was a defense at trial.

So Now What?

The hole that is evident in this mess is the plaintiff did not sign a release. A release might have barred a claim by the plaintiff and by any insurance company or worker’s compensation insurance company under its subrogation rights. A release might have stopped this lawsuit. Minnesota has strict requirements on how a release should be written, and a badly written release would have not been effective.

Many times “staff” of the group coming to the event are skipped in the paperwork process. No one should be allowed on the property without signing a release. The staff could have signed up on line or when they arrived. Their releases could have been part that was handed back in when the parents signed releases for their kids. A release for a minor would not have worked in Minnesota if it went that far, but even so, releases may stop someone from suing who is unsure of the legal value of a release.

Always have a well-written release signed by everyone coming to your business, program or activity. That one release might have been worth $1,650,000, interest, costs and the legal fees to defend the case.

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Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576

Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576

Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant.

A04-2458

COURT OF APPEALS OF MINNESOTA

2005 Minn. App. Unpub. LEXIS 576

December 13, 2005, Filed

NOTICE: [*1] THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

SUBSEQUENT HISTORY: Review denied by Timmer v. Shamineau Adventures, 2006 Minn. LEXIS 73 (2006)

Subsequent appeal at, Remanded by Timmer v. Shamineau Adventures, 2007 Minn. App. Unpub. LEXIS 351 (2007)

PRIOR HISTORY: Morrison County District Court. File No. CX-03-261. Hon. John H. Scherer.

DISPOSITION: Affirmed.

COUNSEL: For Appellant: Robert G. Haugen, Jason M. Hill, Johnson & Lindberg, P.A., Minneapolis, MN.

For Respondent: Luke M. Seifert, Michael, T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., St. Cloud, MN.

JUDGES: Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge. 1

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

OPINION BY: RANDALL

OPINION

UNPUBLISHED OPINION

RANDALL, Judge

This is an appeal from the district court order denying a motion for JNOV but granting a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering. After respondents accepted the conditional remittitur, appellant brought this appeal contending: (a) it is entitled to a Schwartz hearing based on a juror’s allegations of misconduct in reaching the verdict; (b) it is entitled to an unconditional new trial because of juror misconduct on the face of the special [*2] verdict form; (c) it is entitled to a new trial on liability due to the erroneous admission into evidence of an unqualified expert’s opinions; and (d) the court erred in allowing respondent’s expert to testify to opinions undisclosed prior to trial and denying appellant’s request for a continuance. Respondents filed a notice of review arguing that the conditional remittitur was unsupported by the evidence. We affirm on all issues.

FACTS

This appeal stems from a tort action brought by respondents Linda Timmer and her husband Jere Timmer (collectively “respondents”) against appellant Shamineau Adventures. Appellant is one of five subdivisions that are collectively referred to as “Shamineau Ministries.” Appellant’s subdivision consists of a ropes course that includes various elements and obstacle courses. One of the elements of the ropes course is a zip line that consists of a 300-foot cable that is secured to a tower structure on a hill, traverses a valley, and ends at a tree located at a lower point on the opposite side. The cable drapes across the valley, and gradually rises as it nears the landing area in front of the tree to which it is attached. The cable is threaded through [*3] a pulley system and a lanyard rope is attached to the pulley. At the end of the lanyard is a carabiner that has a hinged gate on one side that is spring loaded. A zip line rider is specially body-harnessed by camp personnel, and connected to another carabiner clip attached to the harness. Both carabiners are equipped with screw-lock devices and spring tension hinges that prevent them from opening accidentally.

To ride the zip line, the rider’s harness carabiner is attached to the zip line carabiner. The rider then steps from the higher end platform, gliding down the cable across the valley. The rider slows as the calibrated slack in the cable and the resulting incline brings the rider to a slow landing on the gradual upslope of the lower end hill. The harness carabiner is then disconnected from the zip line by an assistant stationed at the lower end of the hill, and the pulley and lanyard assembly is walked back up to the higher end platform by the rider using a tow-rope attached to the lanyard.

In October 2001, a group of students and teachers from the Little Falls School District went to Camp Shamineau. Included in the group was Timmer, a special education teacher in the Little [*4] Falls School District. On October 11, while “roving” the ropes course and generally supervising her students, Timmer was approached by Troy Zakariasen, the ropes course director. Zakariasen asked Timmer if she would be willing to help uncouple students at the receiving end of the zip line while he briefly attended to other duties. Timmer agreed, and Matthew Stanghelle, a Shamineau staff member, showed Timmer how to unhook the zip line riders. Stanghelle spent approximately five minutes with Timmer, showing her the procedure by demonstrating on incoming zip line riders. Stanghelle then left the landing area to assist other students, teachers, and staff. Although Timmer had been to Camp Shamineau three or four times prior to October 11, she had never attended any training relative to the ropes course, which typically includes two to three weeks of training riders.

After Stanghelle left, the next rider on the zip line was 14-year old Tracie Boser. When Boser arrived at the landing area, Timmer grabbed Boser and tried to unhook her from the harness. As Timmer tried to unscrew the safety harness, Boser began drifting backwards. Timmer instinctively grabbed onto Boser to prevent her from [*5] coasting back to the sender, but Timmer was unable to maintain her footing. Boser then glided back toward the middle of the zip line with Timmer hanging onto Boser’s harness. When they reached the mid-point, approximately 25 feet above the valley, Timmer was unable to maintain her grip on the harness, and she fell to the ground, sustaining serious injuries. Timmer brought this tort action alleging negligence on the part of Shamineau Adventures. Jere Timmer filed a claim for loss of consortium.

Four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Richard Gauger, an engineer retained by respondents to serve as an expert witness. Gauger’s memorandum concluded that, in his opinion, the landing area of the zip line was unsafe, and that the landing area should involve one or more trained persons working together to assist the rider in arriving safely. Appellants moved for an order excluding Gauger’s new opinions, or, in the alternative, for a continuance due to the untimely disclosure of the new evidence. The district court denied the motion, holding that the issue of the landing area could reasonably have been anticipated in light of the [*6] nature of the case.

A jury trial was held from June 21, 2004, through June 29, 2004. At trial, Gauger testified that he has a bachelor’s degree in industrial engineering, and that he is a consulting engineer licensed as a professional engineer. Gauger also testified that his work history included assisting with design and development of construction projects, and some investigative work with regard to recreational activities. Appellant objected to Gauger’s testimony on the basis that he was unqualified as an expert witness. The district court overruled the objection, and Gauger testified in accordance with his June 17 memorandum, that the zip line was dangerous because the slope exceeded the American with Disabilities Act (ADA) standards for ramps and other standards typically used on construction projects.

The jury heard extensive testimony concerning Timmer’s injuries and her present physical condition. Dr. Joseph Nessler testified that as a result of her accident, Timmer suffered “multiple injuries, including pelvic fractures, sacral or tailbone fractures, spinal fracture, left femur fracture, left tibia fracture, and right calcaneus fracture.” Dr. Nessler, Dr. Jeffrey Gerdes, [*7] and Dr. Gregory Schlosser all testified that Timmer suffers from various permanent disabilities as a result of the accident, and all agreed she will have problems lifting, bending, stooping, twisting, and standing. Timmer testified that she is medically disabled and was forced to retire from teaching as a result of the fall.

On the verdict form, the jury determined that appellant was 60% at fault and Timmer was 40% at fault. The jury awarded appellant damages in excess of $ 4.5 million, and after applying the mathematical formula called for by the jury allocation of fault, the net verdict to respondents was $ 2,783,949. Shortly thereafter, James Albrecht, a juror in the case, sent a letter to the district court and the attorneys for both parties. Albrecht stated that the jury had made a mistake in selecting the damages. According to Albrecht, the jury had selected the damages believing that respondents would recover 20% of the damages awarded; deriving this figure by taking appellant’s 60% fault and subtracting respondent’s 40% fault. Appellant subsequently moved the district court for a Schwartz 2 hearing based on Albrecht’s letter. The district court first ruled the letter [*8] inadmissible, and then denied the motion for a Schwartz hearing.

2 See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).

Following the district court’s order denying the request for a Schwartz hearing, appellant moved for a new trial and JNOV. The district court denied the motion for JNOV, but granted a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering, reducing the amount of the recoverable verdict from $ 3,000,000 to $ 1,650,000. Respondents accepted the conditional remittitur. Shamineau appealed. Respondents then served and filed their own notice of review objecting to the remittitur.

DECISION

I.

Appellant argues that it is entitled to a Schwartz hearing based on Albrecht’s letter stating that the jury had made a mistake in selecting the damages. [HN1] “The standard of review for denial of a Schwartz hearing is abuse of discretion.” State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). [*9]

In Schwartz, the supreme court established a method for inquiring into allegations of juror misconduct. 258 Minn. at 328, 104 N.W.2d at 303. A Schwartz hearing may also be conducted to correct a clerical error in a jury verdict. Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (1990), review denied (Minn. Sept. 20, 1990).

[HN2] Although trial courts are urged to be fairly lenient in the granting of Schwartz hearings, their purpose is to determine juror misconduct, such as outside influence improperly brought to bear on jurors. The purpose of a Schwartz hearing does not include the correction of a miscomprehension by a juror or jurors. The assertion that the jury was confused and did not understand the effect of the verdict has been rejected as a basis for a Schwartz hearing. Jurors may not impeach their verdict on the basis that they did not understand the legal effect of that verdict.

Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (quoting Frank v. Frank, 409 N.W.2d 70, 72-73 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)), review denied (Minn. Apr. 15, 1988).

[*10] Here, the district court reviewed the letter for purposes of the Schwartz hearing motion, and concluded that:

There has been no evidence of juror misconduct in this matter. The evidence received did not relate to actions outside of the deliberations that would constitute misconduct. On the contrary, the evidence reveals that during deliberations the jury may have misunderstood or misapplied the law as presented in the jury instructions. However, under Minnesota cases, this does not constitute juror misconduct such that a Schwartz hearing must be held.

The record supports the district court’s conclusion that there were no clerical errors and no evidence of jury misconduct. Albrecht’s letter fails to demonstrate evidence of juror misconduct, but, instead, indicates that the jury may have misapplied the law. The district court properly denied appellant’s request for a Schwartz hearing. See Senf, 419 N.W.2d at 648.

For purposes of the motion, appellant concedes that even if Albrecht is correct and that the jury misunderstood the instructions regarding comparative fault, that “misunderstanding” is not grounds for a new trial. Instead, appellant [*11] argues that the letter is evidence of a “compromise verdict,” and that a compromise verdict is grounds for a new trial. Appellant argues that because a compromise verdict constitutes juror misconduct, it is entitled to a Schwartz hearing.

[HN3] A “compromise” verdict occurs when the jury awards an amount that reflects a compromise between liability and proven damages. See Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971). When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate. Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).

We agree with the district court that [HN4] just a claim that the jury misapplied jury instructions in apportioning damages does not equate to a compromised verdict. Case law uniformly revolves around allegations by plaintiffs that damages were compromised too low based on proven liability. See, e.g., Vermes v. American Dist. Tele. Co., 312 Minn. 33, 44, 251 N.W.2d 101, 106-07 (Minn. 1977) (holding that because the jury simply misunderstood proof of damages and gave [*12] an inadequate award, it was not a compromise verdict);Schore, 290 Minn. at 190, 186 N.W.2d at 702 (remanding for a new trial because the jury’s award of damages was not supported by the evidence in light of the plaintiff’s proven damages and represented a compromise verdict); Kloos v. Soo Line R.R., 286 Minn. 172, 177-78, 176 N.W.2d 274, 278 (1970) (ordering a new trial on the basis that the jury’s award of inadequate damages constituted a compromise verdict). This case is novel. Appellant does not argue that the damages were inadequate, but rather argues that the damages awarded were in excess of the jury’s intent. We conclude that even if the jury did not fully grasp the mathematics of comparative negligence (an unfortunate but true syndrome that goes back decades to the origins of comparative negligence), plaintiffs and defendants have understood for all those years that if even after careful argument by attorneys in their closing arguments, juries do not exactly “get” comparative negligence. It is not “misconduct” and does not call for a Schwartz hearing.

Appellant next argues that in light of Albrecht’s letter indicating that the jury made [*13] a mistake in apportioning damages, its due process rights to a fair trial were violated. Appellant argues that except for purposes of the Schwartz hearing motion, the district court held that under Minn. R. Evid. 606(b), 3 the letter was inadmissible for purposes relative to other post-trial motions, such as a motion for a new trial, remittitur, or JNOV. Appellant argues that it cannot be granted a new trial for juror misconduct without the excluded evidence, and a Schwartz hearing is only available when admissible evidence of juror misconduct is already in the record to justify the proceeding. Thus, appellant contends that the district court’s ruling of inadmissibility under Rule 606(b) denied it the opportunity to prove jury misconduct through a Schwartz hearing, thereby depriving appellant of the opportunity to develop a record supporting its right to a new trial.

3 Minn. R. Evid. 606(b) states:

[HN5] Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

[*14] [HN6] The Minnesota Supreme Court set forth the rationale for the exclusion of juror testimony about a verdict or the deliberation process. See State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000). In Pederson, the supreme court explained: “The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts.” Id. The court further explained the rationale of rule 606(b) by noting the concern that jurors be protected from harassment by counsel after the verdict. Id. These are legitimate public policy concerns that support Minn. R. Evid. 606(b). The accepted fact that from time to time juries make mathematical mistakes in rendering their verdict does not rise to the constitutional level of a due process violation of a party’s right to a fair trial. In essence, this second argument of appellant is a remake of the first argument that there was a compromise verdict. Since we conclude there was not a compromise verdict, the judge properly did not order a Schwartz hearing based on either theory.

[*15] II.

Appellant argues that it is entitled to an unconditional new trial due to evidence of juror misconduct on the face of the special verdict form. Appellant argues that the special verdict form is evidence of misconduct because, appellant claims, certain listed damages are irreconcilable. Specifically, appellant points out that: (1) the jury awarded Linda Timmer $ 3,000,000 in future pain and suffering, but only $ 150,000 in past pain and suffering; and (2) Linda Timmer’s award of $ 150,000 for past pain and suffering is the same as Jere Timmer’s past loss of consortium. Appellant asserts that the only logical explanation for the jury’s irrational damages awards is that the jury carefully attempted to engineer respondents’ net recovery, which constitutes misconduct.

[HN7] Anew trial may be granted when, among other things, the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive. Minn. R. Civ. P. 59.01. The district court has the discretion to grant a new trial and this court will not disturb its decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). [*16] An appellate court will uphold the denial of a motion for a new trial unless the verdict “is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

The district court did take note of the difference between future and past pain and granted appellant’s motion for a new trial on the issue of future pain and suffering if respondents declined the court’s remittitur reducing that portion of the verdict from $ 3,000,000 to $ 1,650,000. However, respondents accepted the court’s remittitur, and that benefited appellants in the amount of $ 1,350,000. As an appellate court on review, we cannot now conclude that the remaining verdict is too high as a matter of law. Appellant is not entitled to a new trial based on its allegation that jury misconduct in calculating damages denied it of its right to a fair trial.

III.

Appellant argues that under the Frye-Mack, Daubert, and Kumho standards for expert testimony, it is entitled to a new trial because the district court erroneously admitted Gauger’s expert [*17] testimony. 4 [HN8] The decision to admit expert opinion testimony is within the broad discretion of the district court. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977). To obtain a new trial based on evidentiary error, a claimant must show not only that the ruling was erroneous, but also that it resulted in prejudice. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).

4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

[HN9] Recently, the Minnesota Supreme Court reaffirmed its adherence to the Frye-Mack standard. See Goeb v. Tharaldson, 615 N.W.2d 800, 813-14 (Minn. 2000). 5 Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied. [*18] Id. at 814. But if the expert’s opinions do not relate to “novel scientific methods,” a Frye-Mack analysis is not necessary. See State v. DeShay, 645 N.W.2d 185, 191 (Minn. App. 2002) (holding that a Frye/Mack analysis was not necessary where expert testimony based on the ten-point gang-identification criteria did not constitute novel scientific evidence), aff’d 669 N.W.2d 878 (Minn. 2003).

5 The court in Goeb also refused to adopt the principals of Daubert and its progeny, and, therefore, appellant’s reliance on the Daubert is misguided. 615 N.W.2d at 814-15.

Based on the scope of Gauger’s testimony, his opinions related to the safety of the zip line landing site, not the actual zip line itself, as claimed by appellant. An expert opinion as to whether the zip line landing area was unsafe, and whether there is something in the condition of the work site that is inherently dangerous does not involve a novel scientific theory. [*19] Gauger’s expert opinion testimony did not constitute “novel scientific testimony” and a complete Frye/Mack analysis was not necessary.

Although a Frye/Mack analysis was not necessary to be admissible, Gauger’s testimony must at least meet the requirements of Minn. R. Evid. 702. This rule provides [HN10] “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.

Appellant contends that the district court abused its discretion by admitting Gauger’s testimony, claiming Gauger was not qualified to be an expert witness. We affirm the district court. The district court found that: (1) Gauger is a professional engineer and has completed investigative work involving recreational facilities; (2) Gauger has reviewed hundreds of sites for safety purposes; and (3) Gauger has a background and familiarity with work sites and recreational facilities such as playgrounds and the Camp Snoopy amusement park at the Mall of America. The record [*20] reflects that Gauger visited the accident site on more than one occasion and viewed the zip line and landing area in use. The record reflects that Gauger reviewed a manual from the camp and criteria developed by the Association of Challenge Course Technology. Gauger testified extensively as to his opinion that the landing area was unsafe, and explained his reasoning. We find there was proper foundation for Gauger’s expert opinions, and the district court properly admitted his testimony.

IV.

Appellant argues that it is entitled to a new trial because the district court failed to grant appellant’s motion for a continuance after respondents’ late disclosure of Gauger’s opinion testimony. [HN11] When a district court denies a continuance at trial, this court reviews the ruling for a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial. Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

The record shows that, four days prior to the commencement of trial, respondents served [*21] upon appellant a memorandum issued by Gauger stating his opinions that the landing area was unsafe. In denying appellant’s motion for a new trial on the basis of the district court’s refusal to grant a continuance, the district court stated that “the late or new disclosures regarding Mr. Gauger’s testimony were really nothing more that a re-disclosure of what had previously been disclosed.” The court further noted that:

Previous disclosures indicated that Mr. Gauger felt that the workplace or landing site was unsafe because Linda Timmer was required to stand on a slope. This opinion did not change. The only disclosure that appeared to be at all new and different was a reference to the ADA slope percentage recommendations, and that Mr. Gauger adopted this slope percentage as a reasonable standard.

In addressing appellant’s claim that it could not respond to the new information because of the fact that its expert had already been deposed and the testimony was established, the court stated:

the fact of the matter is that [appellant’s] expert simply expressed the opinion that the zip line was safe and reasonable, and that the design of the landing area was necessary for [*22] the zip line to function properly. He did not offer any opinion as to what would have been a safe grade for the landing area of the zip line. If there had been a disagreement as to the actual percentage of slope or the standard to be applied, then there may be some basis for the argument. However, that is clearly not the situation at hand. Additionally, [appellant] was aware that the slope grade of the landing area was a basis for the negligence claim prior to the deposition of its expert witness, Bart Broderson. [Appellant] had the opportunity to ask Mr. Broderson his opinion relative to the degree or percentage slope of the landing area. No inquiry was made. [Appellant] cannot later claim prejudice when the subsequent disclosure differed little from the prior disclosure.

The record supports the district court’s decision. We conclude the district court properly denied appellant’s motion for a continuance.

V.

As is their right, even though respondents agreed to the conditional remittitur, once appellant challenged the verdict, respondents cross-reviewed on the issue of the remittitur. Respondents argue that the district court abused its discretion by granting a conditional [*23] remittitur of the damages awarded for future pain and suffering. The district court did reduce the amount of recoverable damages by approximately $ 1,350,000. Respondents argue that reduction was uncalled for in light of the medical testimony.

[HN12] Generally, a district court has broad discretion in determining if damages are excessive and whether the cure is a remittitur. Hanson v. Chicago, Rock Island & Pac. R. Co., 345 N.W.2d 736, 739 (Minn. 1984). When a district court has examined the jury’s verdict and outlined the reasons for its decision on a motion for remittitur, an appellate court is unlikely to tamper with that decision absent an abuse of discretion. Sorenson v. Kruse, 293 N.W.2d 56, 62-63 (Minn. 1980).

In ordering the conditional remittitur, the district court explained that:

The jury awarded $ 150,000 for past pain and suffering. Approximately 2.7 years had transpired from the date of the injury to the date of trial. Therefore, the $ 150,000 award equates to $ 55,555.56 per year for her past pain and suffering. On the other hand, the jury was advised that Linda Timmer had a 29-year life expectancy. The award of $ 3,000,000 for future [*24] pain and suffering, divided among those 29 years, would result in an annual award of damages for future pain and suffering in the amount of $ 103,448.28.

The district court addressed all the of the doctors’ expert testimony on future pain and suffering, and concluded that “although the medical testimony spoke of the need for future care or treatment, and the possibility of some degeneration, there was no specific testimony regarding future pain and suffering associated with any future surgery, care, or degeneration. Thus, the district court concluded that the drastic difference between the annual damages for past pain and suffering and future pain and suffering were not supported by the record.

In support of their claim that the remittitur was an abuse of discretion, respondents cited an exhaustive list of problems or potential problems and potential problems that Timmer will experience as a direct result of the accident. Respondents present a good argument. The record does not jump out on appellate review, as a record where a lack of a remittitur would be a miscarriage of justice. But, as noted, the decision to grant or deny a conditional remittitur is a highly discretionary [*25] decision within the purview of the district judge’s examination and weighing of the evidence. We conclude the district court’s conditional remittitur was reasoned and supported by the record.

Affirmed.