Barbie v. Minko Construction, Inc.

20080214 Jody Barbie, Plaintiff and Appellant
v.
Minko Construction, Inc.
and Comstock Construction, Inc., Defendants and Appellees

Appeal from: District Court, East Central Judicial District, Cass County
Judge Steven E. McCullough
Nature of Action: Personal Injury
Counsel:
Appellant: Kennelly & O'Keeffe, Ltd.
Appellee: Pearson Christensen & Clapp, PLLP
Appellee: Pearce & Durick
Term: 12/2008   Argument: 12/19/2008  10:45am
ND cite: 2009 ND 99
NW cite: 766 N.W.2d 458

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
109/03/2008 NOTICE OF APPEAL: 08/29/2008
209/11/2008 ORDER FOR TRANSCRIPT: 09/03/2008
309/17/2008 TRANSCRIPTS DATED MAY 21, 2008, JUNE 16, 2008, & JUNE 26, 2008.
409/17/2008 DISK-TRA (5/21/08, 6/16/08, 6/26/08).
509/18/2008 CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS.
609/30/2008 ROA & SEPARATES (ENTRY NOS. 17, 23, 28, 40 & 43). NOT REC'D (ENTRY NOS. 13, 45, 48, 49 & 64).
710/27/2008 APPELLANT BRIEF (E-filed) (PDF)
810/27/2008 E-FILED BRIEF (atb)
910/27/2008 APPELLANT APPENDIX (E-FILED)
1010/27/2008 E-FILED APPENDIX (ata)
1110/28/2008 Received $25 surcharge for ATB (Receipt No. 18292)
1210/29/2008 Received copies of ATA from Central Duplicating Services
1310/30/2008 Received 7 copies of ATB from Central Duplicating.
1411/25/2008 APPELLEE BRIEF (Comstock Construction)
1511/25/2008 APPELLEE APPENDIX (Comstock Construction)
1611/25/2008 DISK - AEB (Comstock Construction) (CD-ROM)
1711/26/2008 APPELLEE-MINKO CONSTRUCTION BRIEF (E-FILED) (PDF)
1811/26/2008 E-FILED BRIEF:AEB-MINKO (PDF)
1911/26/2008 APPELLEE-MINKO APPENDIX (E-FILED) PDF
2011/26/2008 E-FILED APPENDIX (AEB-MINKO) PDF
2111/28/2008 Received $25 surcharge for AEB-Minko (Receipt #18836).
2212/02/2008 Received copies of AEB - Minko Const. from Central Duplicating Services
2312/02/2008 Received copies of AEA - Minko Constr. from Central Duplicating Services
2412/19/2008 APPEARANCES: Timothy M. O'Keefe, Tatum O. Lindbo, Jody Barbie; Sarah S. Barron; Zachary E. Pelham
2512/19/2008 ARGUED: O'Keefe; Barron; Pelham
2612/19/2008 ORAL ARGUMENT WEBCAST
2706/17/2009 DISPOSITION: AFFIRMED
2806/17/2009 UNANIMOUS OPINION: Crothers, Daniel John
2906/17/2009 Costs on appeal taxed in favor of appellee
3006/18/2009 Judgment Mailed to Parties
3107/15/2009 MANDATE
3207/21/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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