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BIGALK v. BIGALK11/22/1995
Plaintiff, Gertrude Bigalk, appeals from an adverse judgment in her personal injury litigation against defendant, Donald Bigalk, to whom she is distantly related by marriage. Plaintiff claims to have been injured by falling into an unguarded stairwell on property owned by defendant and rented to plaintiff's friend, Anna Chance. Following a jury trial, defendant was found not to be at fault, and plaintiff's petition was dismissed.
In arguing to the court of appeals and to this court, plaintiff contends that the district court committed reversible error in the trial of her claim with respect to (1) not instructing the jury with respect to specific allegations of negligence that were supported by the evidence, and (2) permitting plaintiff to be cross-examined concerning a statement she had given to an insurance adjuster. The court of appeals agreed with plaintiff as to both assignments of error and ordered a new trial. We agree that the first assignment of error requires a new trial but conclude that no abuse of discretion has been established concerning the challenged cross-examination. Consequently, we affirm the decision of the court of appeals in part and vacate it in part. The judgment of the district court is reversed, and the case is remanded to that court for a new trial of all issues.
I. The Jury Instruction Issue.
Plaintiff challenges the manner in which the district court instructed the jury on her specific claims of negligence. Plaintiff's friend, Anna Chance, rented one unit of a duplex owned by defendant. It was plaintiff's theory that defendant, as the possessor of a common area in the duplex, owed to Anna's guests at least those duties applicable to licensees under Restatement (Second) of Torts section 342 (1965). These duties are:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.
Restatement (Second) of Torts ยง 342 (1965). Plaintiff alleges that defendant breached these duties in at least four ways: (1) failing to warn her of the danger, (2) providing inadequate illumination in the area of the stairwell, (3) not covering the open stairwell, [540 NW2d Page 249]
and (4) not providing a railing around the stairwell.
The district court in its Instruction No. 15 advised the jury as to the duty that section 342 of the Restatement places on a possessor of land as to licensees. Then, in Instruction No. 16, the jury was advised:
The Plaintiff Gertrude Bigalk must prove all of the following propositions:
1. The Defendant knew or in the exercise of reasonable care should have known of a condition on the premises at 242 Third Avenue, West, Cresco, Iowa, and that it involved an unreasonable risk of injury to a person in the Plaintiff's position.
2. The condition was one that a person in the Defendant's position should have expected would not have been discovered or realized by the Plaintiff.
3. The Plaintiff did not know or have reason to know of the condition and the risk involved.
4. The Defendant was negligent in failing to make the condition (open stairway) safe or in failing to warn
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