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Davis v. Gabriel12/11/1990
Roger Davis sued his former attorney, Elizabeth Gabriel, alleging that her legal malpractice caused him not to pursue a meritorious personal injury claim before the expiration of the statute-of-limitations period. The district court granted Gabriel a directed verdict on the ground that Davis's underlying personal injury claim was without merit. We reverse. After noting that the district court misremembered the trial testimony, we examine the duty of a possessor of land with respect to open and obvious dangers. We also consider Gabriel's contention that the directed verdict should be upheld on a ground not relied upon by the district court.
Davis was injured when he fell in the hallway outside his office at Los Alamos National Laboratories. He slipped on debris left by a contractor that was remodeling the building. If Davis did not have a meritorious claim against the contractor, his malpractice claim would fall. See . In directing a verdict for Gabriel, the district court said:
he construction project had been in process for a sufficient period of time for the plaintiff to be aware of it. Debris and debris barriers in the hallway immediately opposite his office door were apparent. On the day of the accident he twice saw the debris. First, going out of his office. Then, he says, he stepped over it. Second, returning to his office, when he stated that he stepped into it. Plaintiff testified that by walking near the wall he could have avoided the debris, but he chose not to do so; rather, he walked into the debris, assumed a risk of what might have been lying there, and as a result caused his own fall.
On appeal from a judgment entered pursuant to a directed verdict, we resolve all conflicts in the evidence in favor of the losing party. See , cert. denied, 488 U.S. 822 (1988). A directed verdict is proper only when the jury could not reasonably reach any other conclusion from the evidence presented. See .
The district court's recollection of Davis's testimony was Incorrect. Davis testified as follows:
Q. (By Gabriel's attorney): It would have been possible, would it not, Mr. Davis, on that day you came in the north entrance and came around this corner, saw this debris -- in fact you tried to maneuver around it, step over it -- could have gone a little further around and gone to your office. Could you?
A. Not without walking through the debris.
Q. The debris was everywhere?
A. Yes sir, it was all over the hall.
Even if there had been contrary evidence concerning the availability of a clear path to Davis's office (although none has been brought to our attention), the district court could not disregard the quoted testimony in rendering its directed verdict. Viewing the evidence in the light most favorable to Davis, the district court could not permissibly conclude that Davis could have avoided the debris by walking near the wall but "chose not to do so."
Apparently recognizing that the district court erred in its recitation of Davis's testimony, Gabriel contends on appeal that the directed verdict should still be affirmed because the contractor could not be liable if Davis perceived the debris and appreciated the hazard. Davis does not challenge the factual premise of that proposition. He does, however, correctly contend that the proposition is legally unsound in the context of this case.
We begin by considering the contractor's duty to persons such as Davis. That duty was the same as if the work had been performed by Los Alamos National Laboratories itself. Restatement (Second) of Torts Section 384 (1965) ("Restatement"), a
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