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James v. Milt E. Erhart and Mary C. Erhart

May 25, 2011


Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. Richard D. Greenwood, District Judge.The judgment of the district court is affirmed.

The opinion of the court was delivered by: Eismann, Chief Justice

2011 Opinion No. 54

Stephen W. Kenyon,Clerk

This is an appeal from a judgment against landlords awarding damages resulting from injuries suffered from falling down a flight of stairs in the leased premises. The issues raised are whether there was sufficient evidence to support the jury's finding of causation and of willful or reckless conduct by a defendant and whether the district court abused its discretion in failing to grant a new trial on the issue of damages for loss of consortium. We affirm the judgment of the district court.


Milt and Mary Erhart are the owners of a commercial building in Meridian, Idaho, containing offices that they rent to various lessees. The building had external stairs consisting of carpet-covered, wooden steps from ground level to a landing and then from the landing to the second floor. There was a second-story cover over the stairs, but they were open to the elementson three sides. In October 2003, Mr. Erhart decided that the wooden steps and carpeting had deteriorated to the point that they constituted a hazard.

He talked with a salesman from a construction company, who suggested that he replace the wooden steps with preformed concrete treads. Mr. Erhart purchased the treads, and then over a weekend he and another man removed the existing steps and installed the concrete ones.

Installing the treads required attaching right angle brackets to the parallel wooden stringers and then attaching treads to the brackets. The length of each bracket was a few inches shorter than the width of the treads. Each bracket had two holes for attaching them to the stringers with lag bolts and two elongated holes for attaching the treads to the brackets using lag bolts screwed up into the bottoms of the treads.

Mr. Erhart and his assistant began installing the treads at ground level. The first flight had ten steps. When installing the eighth tread from the bottom (third from the top), Mr. Erhart discovered that the stringers were too far apart for the elongated holes on the top side of the installed brackets to align with the holes in the bottom of the tread. He decided simply to bolt the tread to the bracket on the right side (facing the stairs from the bottom) and to leave the opposite side of the tread just resting on the left-side bracket. He encountered the same problem with the next step up (second from the top), and did the same thing.

When asked whether he could have used washers as shims between the brackets and stringers to move the brackets closer together, he answered that he did not think that would have worked because as he recalls the distance necessary was about an eighth of an inch. When asked whether there was any problem using washers as spacers, he responded that they could have been used temporarily, but he did not think they would be stable long term. He testified that there were no washers on any of the brackets of the stairs. When shown a picture of a bracket in the upper flight of stairs with three washers used as a spacer, he stated that he had used the washers on one end of that bracket, but he did not believe he could have used three washers on the two treads in the lower flight of stairs. When asked whether he could have obtained a wooden shim, he answered that he could not have done so and finished the job that day. He did not consult with anyone to determine whether leaving one side of the treads unattached to a bracket would pose a hazard, and he did not attempt to shim the brackets so that he could attach both sides of the treads. There is no evidence that he had any expertise to know whether attaching only one side of the treads could create a hazard.

Jim Phillips had an office on the second floor of the Erharts' building. He weighed about 320 pounds. On March 20, 2006, he was walking down the stairs carrying a cardboard box with trash in it, and he fell while walking down the lower flight of steps. He was found lying face down on the concrete landing at the bottom of the stairs. He was taken by ambulance to the emergency room and released that day. He suffered various injuries including a closed head injury that caused permanent brain damage and a loss of memory.

The Phillipses filed this action on April 25, 2007, to recover damages resulting from his fall. The case was tried to a jury in April 2009, and the jury returned a verdict awarding Mr. Phillips $546,174 in economic damages and $562,000 in non-economic damages and awarding Mrs. Phillips $556,200 in non-economic damages for loss of consortium. The jury also found that Mr. Erhart was solely at fault for the accident and that his actions were willful or reckless.

The Erharts filed motions for a judgment notwithstanding the verdict, for a new trial, and for a remittitur. After a hearing, the district court denied the motions for a judgment n.o.v. and a new trial. It granted a remittitur, ordering a new trial unless the Phillipses accepted a reduction in economic damages to $253,014.49. The Phillipses accepted that reduction, and the court entered a judgment accordingly. The Erharts then timely appealed.


A. Was there sufficient evidence that Mr. Erhart's wrongful conduct was an actual cause of the fall?

B. Was there sufficient evidence that Mr. Erhart's conduct was willful and wanton misconduct?

C. Did the district court abuse its discretion in failing to grant a new trial with respect to Mrs. Phillips's damages for loss of consortium?


A. Was there Sufficient Evidence that Mr. Erhart's Wrongful Conduct Was an Actual Cause of the Fall?

"Proximate cause contains two components: actual cause, which is a factual question of whether a person's conduct produced a particular harm, and legal cause, which is a legal question of whether legal liability attaches to the conduct." Harrison v. Binnion, 147 Idaho 645, 652, 214 P.3d 631, 638 (2009). "Actual cause is the factual question of whether a particular event produced a particular consequence." Newberry v. Martens, 142 Idaho 284, 288, 127 P.3d 187, 191 (2005). "This Court will not overturn a jury verdict on proximate cause unless unsupported by substantial and competent evidence." McKim v. Horner, 143 Idaho 568, 572, 149 P.3d 843, 847 (2006). In cases questioning the sufficiency of the evidence, "the record must be reviewed to determine whether there is competent evidence to sustain the verdict; and if the litigant's case is one based on circumstantial evidence, whether such circumstantial evidence and reasonable inferences to be derived from the circumstantial evidence sustain the verdict." Henderson v. Cominco American, Inc., 95 Idaho 690, 696, 518 P.2d 873, 879 (1973). "Conflicts in the evidence and conflicts in the conclusions to be reached from the evidence remain questions for the trier of facts." Id. However, the verdict cannot rest upon conjecture. Id.

There were no witnesses to the accident, and by the time of the trial Mr. Phillips could not recall how the accident happened. He testified that he remembered walking down the stairs with some trash and then smelling concrete.

In February or March, 2006, a tenant in the Erharts' building reported to Mr. Erhart that a tread in the lower flight of stairs was loose. The tenant testified: "The tread actually moved back and forth on the supports that were holding it. It wasn't anchored to the side, so that if you pushed on it, it actually would slide backwards." He said that when he stepped on the stair, it jiggled, and that when he tried moving it, it moved more than a couple of inches. He also opined that if one were carrying something heavy, it would move more easily than if one was using only his or her body weight. Although Mr. Phillips was not carrying something heavy when he fell, his body weight was about 320 pounds. The tenant described the loose tread as being just up from the bottom, but later said he did not know exactly which step it was. Under the evidence, it could only have been one of the two treads that Mr. Erhart improperly installed because those are the only ones that would have been able to move as the tenant described.

When Mrs. Phillips learned of the accident, she called Mr. Phillips's father. He and Mr. Phillips's mother went to the hospital, and when the medical personnel stated that they were going to have an MRI done which would take about an hour, Mr. Phillips's father went to the scene of the accident. He met one of Mr. Phillips's co-workers in the parking lot, and they investigated the scene of the accident. They noticed that one tread in the lower flight of stairs was out of place, and took a picture of it. It was the third tread from the top. The photo showsthat the right side of the tread (when standing on top looking down) had moved backwards a few inches. They also discovered that there were no bolts holding that tread to the bracket. The co-worker then discovered that the upper end of the handrail for the lower flight of stairs was not attached to the baluster. The handrail had a groove the length of its underside that fit over the baluster. She lifted up the end of the handrail and saw that there were no screw or nail holes in the handrail, indicating that the upper end had never been attached to the baluster. The handrail was only attached at its lower end. She then walked under the stairs and saw that the head of one of two bolts holding the right angle bracket to the stringer had broken off. The Phillipses called a mechanical engineer as an expert witness. He testified that the treads that were not bolted down on both sides were deficient in structural integrity and that the handrail was too wide, making it more difficult to grip. Both were violations of the building code. Not having one side of the ...

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