No. 92-173 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JESSICA LYNN MORALLI, 

Plaintiff and Respondent, 

-vsLAKE COUNTY, MONTANA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel W. Hileman and James E. Vidal, Murray & 

Kaufman, Kalispell, Montana 

For Respondent: 

Douglas J. Wold, Wold Law Firm, Polson, Montana 

Submitted on Briefs: July 9, 1992 

Decided: October 8, 1992 

CL.ERI< OF SLIPREIVIE COURT 

STATE OF MONTANA 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

plaintiff, Jessica Moralli, brought a negligence action 

against Lake County, Montana in the Twentieth Judicial District 

Court, Lake County, Montana. Lake County contended that Ms. 

Moralli negligently caused her own injuries. A jury found that 

Lake County was 70% negligent and that Ms. Moralli was 30% 

negligent. Defendant appeals from the judgment and order denying 

its motion for judgment notwithstanding the verdict. We affirm. 

The issues presented for review are as follows: 

1. Whether the District Court erred in denying Lake County's 

motion for directed verdict. 

2. Whether the District Court erred in admitting evidence of 

medical expenses without proper foundation. 

3. Whether the District Court erred in refusing to instruct 

on premises liability. 

4. Whether plaintiff's counsel's improper closing arguments 

require a reversal of the jury's verdict. 

5. Whether there is sufficient credible evidence to support 

the jury's verdict. 

Jessica Moralli pled guilty to criminal charges arising from 

a hit-and-run accident in Polson, Montana in July of 1988 and was 

sentenced to seyGe- sixteen days in the Lake County jail. She 

served eight consecutive days following her arrest and was allowed 

to finish the remaining eight days of the sentence on weekends. 

She served two of these days on September 6 and 7, 1988. All ten 
days were served without incident in a women's cell with a bathroom 

which included a full-length shower curtain. Each time, Ms. 

Moralli was given a two-piece suit and a pair of slippers to wear 

while she was in jail. 

The remaining six-day sentence was subsequently amended, only 

requiring Ms. Moralli to serve the four days from September 13 to 

September 16, 1988. When Ms. Moralli returned to the Lake County 

jail on September 13, 1988 to serve the four days, jail personnel 

placed her in a different cell. Ms. Moralli requested footwear; 

none was given to her. She then requested that she be allowed to 

wear her own socks or her own tennis shoes. Jail personnel denied 

this request also. 

Ms. Moralli and another witness testified that the cell Ms. 

Moralli was placed in had a shower with a shower curtain ending 

eighteen inches above the floor. Ms. Moralli testified about the 

accident and her actions just prior to the accident as follows: 

She and another inmate both took showers, after which Ms. Moralli 

returned to the bathroom to use the toilet and to comb her hair. 

By this time, up to one-half inch of water had accumulated on the 

floor of the bathroom. As Ms. Moralli rose from the toilet and 

pulled up her pants, the wet pant legs stuck to her heels and her 

feet slipped out from under her. At the same time she arose from 

the toilet she twisted her body away from the open doorway for 

privacy reasons. As she slipped, she fell backwards, hitting her 

head, shoulders and back against the wall. 
The testimony indicates that Ms. Moralli's cellmates came to 

her assistance when she fell. They notified the jailer on duty, Mr. 

Fairchild, who did not respond. Hours later, a second jailer, Mr. 

Emerson, after being informed of the fall, removed Ms. Moralli from 

her cell and transferred her to a holding cell while he made 

telephone calls to the Polson city judge to arrange for her release 

from confinement and to Morallils boyfriend to arrange for a ride 

from the jail. Emerson advised Moralli's boyfriend to take her to 

the hospital because she was injured. Moralli saw a physician the 

next morning. 

Ms. Moralli filed a claim against Lake County for injuries 

suffered from the fall in its jail. At the time she fell, she was 

barefoot. The floor surface was smooth concrete. Ms. Moralli 

claimed that her bare feet, the soapy water from the shower leaking 

onto the bathroom floor, and the smooth concrete surface all 

combined to create a dangerous condition resulting in her injuries 

and that Lake County was negligent in operating the facility. 

Since the time of the injury in the Lake County jail, Moralli 

claims she has suffered from the injury and incurred over $5,000 in 

medical expenses. At trial, Moralli presented testimony from her 

chiropractor that she would continue to incur medical expenses 

during her lifetime relating to the 1988 injury. The jury returned 

a verdict for Ms. Moralli with damages totalling $35,400.00. 

Judgment was entered for $24,780.00 plus interest and costs because 

the jury determined that Moralli was 30% negligent. 
I. 

Did the District Court err in denying Lake County's motion for 

a directed verdict? 

Lake County contends that there was no credible evidence to 

warrant submitting the case to a jury. A motion for a directed 

verdict should only be granted when there is a complete absence of 

any evidence to warrant submission to the jury and all factual 

inferences must be viewed in the light most favorable to the 

nonmoving party. Jacques v. Montana Nat'l Guard (1982), 199 Mont. 

493, 504, 649 P.2d 1319, 1325. A directed verdict for the 

defendant is not proper if reasonable persons could differ as to 

the conclusions drawn from the evidence when considered in a light 

most favorable to the plaintiff. Weber v. Blue Cross of Montana 

(1982), 196 Mont. 454, 464, 643 P.2d 198, 203. 

Issue I and Issue V are so interrelated that it is best to 

discuss them together. Issue V questions the sufficiency of the 

evidence to support the jury's verdict. When there exists in the 

record substantial evidence to support the jury's verdict, we will 

sustain a district court denial of a motion for a directed verdict. 

Krueger v. General Motors Corp. (1989), 240 Mont. 266, 277-78, 783 

P.2d 1340, 1347-48. In short, a verdict is binding upon this Court 

if it is based upon substantial evidence, although the evidence may 

appear inherently weak. Our review of a jury verdict is very 

narrow in scope. Substantial evidence need only be evidence which 

from any point of view could have been accepted by the jury as 
credible. Kitchen Krafters, Inc. v, Eastside Bank of Montana 

(1990), 242 Mont. 155, 164, 789 P.2d 567, 572. 

In order to sustain a claim of negligence, Moralli must 

present substantial evidence to prove that (1) the County owed a 

duty to Moralli, (2) the County breached that duty, (3) the breach 

was the actual and proximate cause of Moralli's injury, and (4) 

that damages resulted. 

1. What duty did Lake County owe to Moralli? 

Lake County had a duty to exercise reasonable and ordinary 

care for the life and health of the prisoner, to keep her safe and 

protect her from unnecessary harm. Lake County also had a duty to 

render medical aid when necessary, treat the prisoner humanely and 

refrain from oppressing her. Pretty On Top v. City of Hardin 

(1979), 182 Mont. 311, 315, 597 P.2d 58, 60-61. Clearly, Lake 

County had a duty to provide Moralli with a reasonably safe 

accommodation during the period of her incarceration. 

2. Did Lake County breach this dutv? 

Ms. Moralli presented evidence that the county knew or should 

have known that the condition of the bathroom floor was far from 

ideal. Another inmate had fallen there within the previous month. 

Pretty On Top requires only reasonable and ordinary care for the 

life and health of the prisoner. Prettv On TOE, 597 P.2d at 60. 

However, evidence presented by Ms. Moralli indicates that the 

condition of the floor in the bathroom was slippery and that jail 

personnel knew the floor was slippery. Ms. Moralli also presented 
evidence that she asked for footwear and when that request was 

denied, she asked if she could keep her own footwear and that 

request also was denied. The evidence presented by Ms. Moralli 

also indicates that the county provided no medical assistance 

although the jailer was aware that Ms. Moralli had fallen in the 

cell's bathroom and that he later released her, advising her 

boyfriend to take her to the hospital. At that time, Moralli still 

had two days of her sentence to serve. We conclude that there is 

substantial evidence from which the jury could properly have found 

that Lake County breached its duty. 

3. Did the County's conduct cause Moralli's injurv? 

A jailer is not liable for injury resulting from an inmate's 

intentional conduct. Pretty On Top, 597 P.2d at 61. This issue 

often arises in cases which result from a suicide, as in Pretty On 

m. Lake County contends that Ms. Moralli acted intentionally by 

entering the bathroom, that she was aware of the floor condition at 

that time and should have been careful--that her own negligence 

caused her injury. Lake County also contends that the proximate 

cause of her injury was when she hooked her pant leg on her heel. 

Again, viewing the evidence in a light most favorable to Ms. 

Moralli, the jury could have found that it was foreseeable that the 

floor would become wet and slippery from inmates ' showers, t-hat 

footwear or some other protection was a necessary precaution 

against slips and falls, and that the inmates might need to use the 

bathroom facility when the floor was wet with standing water. Ms. 
Moralli's intentional conduct was insufficient to break the chain 

of causation. 

We conclude that the county has failed to demonstrate a 

complete absence of evidence to warrant submission of the case to 

the jury. We hold that the District Court properly denied the 

County's motion for a directed verdict. 

We further conclude that the record contains substantial 

evidence to support the jury's verdict. We therefore hold there 

was sufficient credible evidence to support the jury's verdict. 

11. 

Did the District Court err by admitting evidence of medical 

expenses without proper foundation? 

Lake County contends that Ms. Moralli provided no foundation 

that the expenses reflected on Exhibit 3, a summary of medical 

expenses resulting from the accident, were related to the slip and 

fall in the Lake County jail. In Cain v. Stevenson (1985) , 218 

Mont. 101, 706 P.2d 128, the appellant made a similar argument. We 

held that a claimant is competent to testify as to his past and 

present condition, but that his testimony, standing alone, is not 

surficient to establish cause for those aspects of an injury not 

apparently related to the accident in question. -, 706 P.2d at 

131. We noted that: 

not all injuries require medical expert testimony to prove 

permanency or causation. (It has been held that medical 

testimony is not necessary to prove permanent injuries or 

their cause where) the nature of the injury is such that 

laymen can plainly see, or infer from the injury, its cause 
and that it will be permanent, such as the loss of a limb. 

Respondent's back injury was not such an injury. 

w, 706 P.2d at 131. 

In u, we held that inadequate proof of permanent injury 

required a reversal, but only on the issue of damages. b, 706 

P.2d at 131-32. Moralli's testimony relating to past and present 

condition was competent under m, but she could not testify to 

future damages. That required qualified medical testimony from an 

expert witness. Dr. William F. Risch, Moralli's treating 

chiropractic physician for the six-month period prior to trial, 

testified to his history, observations and treatment and gave his 

opinion that more likely than not her injury was permanent. 

A plaintiff is not required to establish the causal connection 

between the accident and her injuries with certainty; she merely 

must do so with reasonable certainty or by a preponderance of the 

evidence. Allers v. Willis (1982), 197 Mont. 499, 505, 643 P.2d 

592, 595-96. Moralli testified that she had been free of symptoms 

from a prior injury for five years before this injury. Together, 

~oralli's testimony relating to her past and current condition and 

Dr. Risch's testimony relating to her current and future condition 

were sufficient foundation for medical expenses. 

We hold that the District Court did not err in admitting 

evidence of medical expenses. 

111. 

Did the District Court err in refusing to instruct the jury on 

premises liability? 
Lake County proposed and the District Court refused the 

following jury instruction: 

The defendant has the duty to exercise ordinary care to keep 

his premises reasonably safe for all persons who foreseeably 

might come upon them, and to warn such persons of any hidden 

danger upon such premises. 

Neither of the parties contended that there was a hidden 

danger lurking on the premises. Rather, the County primarily 

contended that the condition was known or obvious and that Ms. 

Moralli was contributorily negligent by making use of the bathroom 

in such manner. While the above instruction is a correct statement 

of the law in Montana, it is inappropriate in a case such as this 

one where there is no hidden danger on the premises. 

Lake County also proposed and was refused two other 

instructions. Proposed instruction 16 provided: 

The defendant is not liable to plaintiff for physical harm 

caused by any activity or condition of the jail facility whose 

danger is known or obvious to the plaintiff, unless defendant 

should have anticipated the harm despite such knowledge or 

obviousness. 

208 

bus 

or 

This instruction, from Kronen v. Richter (1984), 211 Mont. 

, 211, 683 P.2d 1315, 1317, relates to nonliability of a 

iness owner to a business invitee for conditions which are known 

obvious to the plaintiff and is inappropriate for the facts of 

this case. 

Proposed instruction 17 states that a landowner is entitled to 

assume that the plaintiff will see and observe that which would be 

obvious through the reasonably expected use of an ordinary person's 

senses. Ms. Moralli freely admitted that she saw the water on the 
floor. She had no choice but to enter the bathroom. This 

instruction is also inapplicable to the facts of this case. 

Section 25-7-301(5), MCA, provides: 

. . . In charging the jury, the court shall give to it all 

matters of law which the court thinks necessary for the jury's 

information in rendering a verdict. 

In giving jury instructions, the trial court is required to 

give the relevant law favoring both sides. Demaree v. Safeway 

Stores, Inc. (1973), 162 Mont. 47, 508 P.2d 570. The District 

Court gave a general negligence instruction and an instruction on 

the duty of care for jail operators as established by Prettv On 

m, 597 P.2d at 60-61. When taken as a whole, if the instructions 

state the law applicable to the case, a party cannot claim 

reversible error. Goodnough v. State (1982), 199 Mont. 9, 647 P. 2d 

364. By giving the general negligence instruction and the 

instruction describing the duty of care owed by the ordinary and 

prudent jailkeeper, the District Court gave the jury a pertinent 

summary of the applicable Montana law. We cannot say that Lake 

County was prejudiced by the District Court's giving these 

instructions and refusing to give Lake County's proposed 

instructions numbered 15, 16 and 17. 

We hold that the District Court did not commit reversible 

error by refusing to give Lake County's proposed instructions 

relating to the duty that Lake County owed to Ms. Moralli. 
IV . 

Do plaintiff's counsel's closing arguments constitute 

reversible error? 

Lake County objected twice to comments made by Ms. Moralli's 

counsel during his closing argument. Lake County contends that 

these comments prejudiced the jury and prevented the County from 

obtaining a fair trial. 

The first such comment referred to Mr. Emerson's absence as a 

witness for Lake County. Emerson, the jailer on duty when Ms. 

Moralli was released, was still employed by the County at the time 

of the trial. Counsel for Ms. Moralli stated that the County did 

not have Emerson testify because "he would have hurt their case 

very badly." Lake County objected to this remark. The District 

Court sustained the objection and gave a curative instruction to 

the jury, advising them that they were not allowed to consider any 

statements made by plaintiff's attorney as to what Emerson's 

testimony may or may not have been. Plaintiff's counsel contends 

that the comments regarding Mr. Emerson were fair statements as to 

the inference that could be drawn by the County's failure to call 

a crucial witness, and were not improper comment. 

Improper argument requires reversal only when prejudice has 

resulted which prevented a fair trial. Gunnels v. Hoyt (1981), 194 

Mont. 265, 276, 633 P.2d 1187, 1194. In Gunnels, the defense 

counsel made improper comments upon and reference to excluded 
evidence, which indicated to the jury that the plaintiff was 

concealing evidence. We concluded that the district dourt properly 

instructed the jury "not to draw any inferences from rulings on 

evidence, not to consider rejected evidence, and not to conjecture 

or draw any inferences as to what an answer might have been, or as 

to the reason behind any obje~tion.?~ Gunnels, 633 P. 2d at 1194. 

We could not say that any prejudice resulted to the plaintiff in 

Gunnels. The argument in this case was even less prejudicial. 

Plaintiff's counsel did not comment on excluded evidence. He did, 

however, comment on what testimony might have been. This was 

improper, but sufficiently cured by the District Court Is 

instruction regarding the comment. Plaintiff's counsells reference 

to private logs kept by county employees was similarly handled by 

the District Court. 

Lake County argues that the best solution is for the Court to 

hold that prejudice will be presumed where counsel offers improper 

argument or comments during trial and would have us place the 

burden on the offending party to establish a lack of prejudice. We 

decline to do so. 

The other comments that Lake County objected to involve Ms. 

Morallits counsel's remarks about county employees taking him to 

the wrong jail cell and the jail supervisor not giving certain 

documents to him, followed by his remark that he did not feel there 

was an intentional deception. This objection, overruled by the 

District Court, involves what the County calls "an attempt to infer 
to the jury that there was some sort of deception on the County's 

part. It However, Ms. Moralli ' s counsel's comments related to 

properly admitted evidence. The jury can make inferences from 

properly admitted evidence. 

We conclude that these arguments, although not ideal, do not 

constitute reversible error. 

v. 

Is there sufficient credible evidence to support the jury's 

verdict? 

We addressed this issue along with Issue I and concluded that 

there was sufficient credible evidence from which the jury could 

find in favor of Ms. Moralli. 

Affirmed. 
October 8. 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Dmiel W. Hileman 

James E. Vidal 

MURRAY & KAUFMAN, P.C 

P.O. Box 728 

Kilispell, MT 59903-0728 

Douglas J. Wold 

WOLD LAW FIRM 

P.O. Box 1212 

Polson, MT 59860-1212 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA