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KRAGEL v. WAL-MART STORES9/20/1995
[537 NW2d Page 701]
In this slip and fall case, the plaintiff sued only the owner of the premises where she fell. Her husband joined in the lawsuit for loss of consortium. The owner cross-petitioned for contribution against an independent contractor whom the owner had hired to clear the premises of snow. The independent contractor in turn cross-petitioned against a subcontractor whom he hired to do the actual plowing. The owner then cross-petitioned for contribution against the subcontractor.
The jury returned a verdict finding that the owner was not at fault. Because the court would not allow the jury to assign fault against the contractor and subcontractor in the plaintiffs' action, the jury also assigned no fault to them.
The plaintiffs appealed, raising issues as to their requested jury instructions which the district court refused to give. The independent contractor cross-appealed, claiming error in an instruction the court did give. The subcontractor also cross-appealed but he did nothing more than adopt the owner's brief.
We reverse and remand for a new trial as to the appeal. We affirm on the cross-appeal.
I. Background Facts.
In September 1991, Wal-Mart Stores, Inc. contracted with James Laubscher to remove snow accumulations from the parking lot of its new Denison store down "to the asphalt." Brad Schaffner, the store manager, negotiated the contract. Unknown to Wal-Mart, Laubscher had subcontracted with Dennis Lobaugh to do this work whenever Laubscher was out of town.
A snowstorm hit Denison on October 31. The Wal-Mart store opened for business November 2. Two days later Bernadine Kragel slipped and fell on an accumulation of packed snow and ice on the store's parking lot. She sustained a fractured hip, fractured left elbow, and other injuries because of her fall.
Laubscher was out of town between October 31 and the date Bernadine fell. Lobaugh attempted to clear the parking lot of snow on the evening of October 31. Lobaugh was unable to clear the parking lot of the snow because the snow was too slushy and he had mechanical difficulties with his pickup. During the night the temperature dropped, causing the remaining slush and snow to freeze. [537 NW2d Page 702]
The next morning, Lobaugh returned to finish the job but was unable to remove this layer of ice and snow.
Schaffner was aware of Lobaugh's efforts the evening of October 31 but did not know Laubscher had subcontracted the plow work to Lobaugh. The next morning when Schaffner arrived at work, he noticed the job had not been completed. Schaffner tried to contact Laubscher but was not successful because Laubscher was still out of town.
Schaffner then hired another party who had an end-loader to complete the job . On the morning of November 2, this party — using the end-loader — was able to remove all but one to two inches of packed snow. Schaffner also enlisted the help of the city, whose snow removal crew spread sand containing a melting agent on the lot three times per day on November 2, 3, and 4.
After Bernadine fell, Laubscher revealed his arrangement with Lobaugh to Schaffner. Schaffner terminated Wal-Mart's contract with Laubscher.
II. Background Proceedings.
Bernadine filed a negligence action against Wal-Mart. Paul Jr., her husband, joined in her action with a loss of consortium claim.
Wal-Mart cross-petitioned against Laubscher, seeking contribution. Laubscher in turn cross-petitioned against Lobaugh, also seeking contribution. Wal-Mart then cross-claimed against Lobaugh for contribution and moved for summary judgment against the Kr
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