Barbie v. Minko Construction, Inc.
Jody Barbie, Plaintiff and Appellant
Minko Construction, Inc.
and Comstock Construction, Inc., Defendants and Appellees
East Central Judicial District,
Judge Steven E. McCullough
|Nature of Action:||Personal Injury|
|Term:||12/2008  Argument: 12/19/2008|
|ND cite:||2009 ND 99|
766 N.W.2d 458
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
I. Did the District Court err in determining as a matter of law that Comstock and Minko cannot be liable to Barbie in this negligence action when the Court found that Barbie is unable to prove all of the elements of negligence, despite lay witness testimony to the contrary?
II. Did the District Court err in determining that there is no genuine issue of material fact as to defeat Summary Judgment as to Barbie's claims against Comstock and Minko on Barbie's claims based in the doctrine of res ipsa loquitur?
Appellee's Statement of the Issues:
Comstock Construction, Inc. ("Comstock") performed construction work at Fargo North High School. Jody Barbie ("Barbie") alleges she was injured when a removable door post fell onto her. Barbie speculates that Comstock, or others, improperly replaced the post. Barbie also speculates Comstock exclusively controlled the post. But she fails to offer competent admissible evidence of negligence. Did the district court properly grant Comstock's motion for summary judgment?
Appellee's Statement of the Issues:
I.Whether the District Court abused its discretion in holding that the lay opinions of Dahl and Semanko that construction workers were responsible for failing to secure the mullion bar that injured Barbie were inadmissible because they were speculative and therefore could not be used by Barbie to create a disputed issue of material fact to defeat summary judgment?
II.Assuming the District Court did not abuse its discretion in excluding the lay opinion testimony of Dahl and Semanko, whether the District Court erred as a matter of law by failing to consider other circumstantial evidence and granting summary judgment in favor of Minko when this evidence could not lead a jury to reasonably infer that it was Minko who failed to replace the mullion bar correctly?
III.Whether the District Court erred as a matter of law in holding that Barbie could not rely on the doctrine of res ipsa loquitur to create a rebuttable presumption that Minko was negligent since Barbie failed to present any evidence that Minko had exclusive control of the mullion bar that injured her, an essential element of the doctrine of res ipsa loquitur?
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|1||09/03/2008 NOTICE OF APPEAL: 08/29/2008|
|2||09/11/2008 ORDER FOR TRANSCRIPT: 09/03/2008|
|3||09/17/2008 TRANSCRIPTS DATED MAY 21, 2008, JUNE 16, 2008, & JUNE 26, 2008.|
|4||09/17/2008 DISK-TRA (5/21/08, 6/16/08, 6/26/08).|
|5||09/18/2008 CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS.|
|6||09/30/2008 ROA & SEPARATES (ENTRY NOS. 17, 23, 28, 40 & 43). NOT REC'D (ENTRY NOS. 13, 45, 48, 49 & 64).|
|7||10/27/2008 APPELLANT BRIEF (E-filed) (PDF)|
|8||10/27/2008 E-FILED BRIEF (atb)|
|9||10/27/2008 APPELLANT APPENDIX (E-FILED)|
|10||10/27/2008 E-FILED APPENDIX (ata)|
|11||10/28/2008 Received $25 surcharge for ATB (Receipt No. 18292)|
|12||10/29/2008 Received copies of ATA from Central Duplicating Services|
|13||10/30/2008 Received 7 copies of ATB from Central Duplicating.|
|14||11/25/2008 APPELLEE BRIEF (Comstock Construction)|
|15||11/25/2008 APPELLEE APPENDIX (Comstock Construction)|
|16||11/25/2008 DISK - AEB (Comstock Construction) (CD-ROM)|
|17||11/26/2008 APPELLEE-MINKO CONSTRUCTION BRIEF (E-FILED) (PDF)|
|18||11/26/2008 E-FILED BRIEF:AEB-MINKO (PDF)|
|19||11/26/2008 APPELLEE-MINKO APPENDIX (E-FILED) PDF|
|20||11/26/2008 E-FILED APPENDIX (AEB-MINKO) PDF|
|21||11/28/2008 Received $25 surcharge for AEB-Minko (Receipt #18836).|
|22||12/02/2008 Received copies of AEB - Minko Const. from Central Duplicating Services|
|23||12/02/2008 Received copies of AEA - Minko Constr. from Central Duplicating Services|
|24||12/19/2008 APPEARANCES: Timothy M. O'Keefe, Tatum O. Lindbo, Jody Barbie; Sarah S. Barron; Zachary E. Pelham|
|25||12/19/2008 ARGUED: O'Keefe; Barron; Pelham|
|26||12/19/2008 ORAL ARGUMENT WEBCAST|
|27||06/17/2009 DISPOSITION: AFFIRMED|
|28||06/17/2009 UNANIMOUS OPINION: Crothers, Daniel John|
|29||06/17/2009 Costs on appeal taxed in favor of appellee|
|30||06/18/2009 Judgment Mailed to Parties|
|32||07/21/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|