No. 88-378 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

KATHRYN ANN NELSON, 

Plaintiff and Respondent, 

-vsFAIRMONT HOT SPRINGS RESORT, INC., 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ross P. Richardson; Henningsen, Purcell, Vucurovich 

and Richardson, Butte, Montana 

For Respondent: 

Clinton H. Kammerer, Missoula, Montana 

Submitted on Briefs: Oct. 6, 1988 

Decided: November 1, 1988 

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LL LJ L-.~ Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Fairmont Hot Springs, Inc. (Fairmont), appeals an order 

of the Second Judicial District, Silver Bow County, setting 

aside a jury verdict for the defendant and ordering a new 

trial for plaintiff Kathryn Nelson (Nelson) on ner personal 

injury suit. 

The issues on appeal are as follows: 

1. Did the District Court abuse its discretion by 

setting aside the jury verdict in favor of the defendant 

because there was substantial credible evidence in the record 

to support the verdict? 

2. Did tne District Court err in failing to give 

Defendant's Proposed Instruction No. 24 on subsequent injuries and damages? 

3. Does the 45-day limit imposed by Rule 59, 

M.R.Civ.P., apply to plaintiff's post-trial motions after 

remand by this Court directing the District Court to reconsider those motions? 

We reverse. 

Nelson was on the Fairmont premises on December 30 and 

31, 1984, while visiting relatives, who leased a Fairmont 

time-share condominium. After dinner and drinks, Nelson and 

her companions decided to go swimming in the Fairmont pools. 

Fairmont closes its pools to the general public at 10:OO p.m. 

However, hotel guests and condominium owners can still access 

the pools with a special key. It was just after midnight 

when they accessed the pools with one of these keys. 

After swimming indoors for a short time, they decided 

to go outside to the outdoor pool to experience the cold. 

Although it was a cold December evening, near zero degrees, 

the Nelson party wanted to swim in the outdoor heated pools 
while experiencing the cold weather around them, and they 

went outside for this express purpose. 

W'nile hurrying back indoors along the pathway leading 

to the indoor pool, Nelson slipped and fell and injured 

herself. She made no report to the resort management of her 

fall and injuries; however, she filed complaint against them 

on May 5, 1986, and a jury trial was had in September 1987. 

The jury returned a defense verdict. Plaintiff made 

post-trial motions for judgment N.O.V. or, in the alternative, for a new trial. 

The District Judge ordered a new trial and defendants 

appealed in October 1987. This Court remanded that appeal on 

January 12, 1988, with instructions for the trial judge to 

reconsider those post-trial motions and to make specific 

findings if either of the motions were granted. It was not 

until June that the District Court held another hearing and 

then adopted verbatim plaintiff ' s findings of fact and conclusions of law to support a new trial. The findings and 

conclusions determined that there was insufficient evidence 

to support the jury's defense verdict. The court issued an 

order for a new trial pursuant to S 25-11-102(6), MCA. We 

disagree and vacate the District Court's order granting a new 

trial. 

Because we reverse on Issue 1, there is no need to 

discuss appellant's further issues. 

I. NEW TRIALS 

(a) Standard of Review 

The District Court abused its discretion in ordering a 

new trial because there was substantial credible evidence in 

the record to support the jury's verdict. 

Granting a new trial is discretionary with the trial 

judge; however, this discretion is not without limitation. 
AS we stated in Kincheloe v. Rygg (19681, 152 Mont. 187, 191, 

448 P.2d 140, 142: 

Although the granting of a new trial for 

insufficiency of the evidence is a 

discretionary power of the trial court 

which will not be disturbed except for 

abuse of discretion, the trial court's 

discretion is exhausted when it finds 

substantial evidence to support the 

verdict. 

Thus, if there is substantial credible evidence to 

support the jury's verdict, it must stand. Townsend v. State 

of Montana (Mont. 1987), 738 P.2d 1274, 44 St.Rep. 1014. 

This Court has defined substantial evidence as any 

relevant evidence which a reasonable mind might accept as 

adequate to support a conclusion. State v. Lamb (1982), 198 

Mont. 323, 646 P.2d 516. A review of the trial transcript 

reveals such substantial evidence. The jury which heard the 

defendant's testimony determined it to be credible. "If 

there is conflicting evidence in the record, the credibility 

and weight given to such conflicting evidence is the province 

of the jury and not of this Court." Wilkerson v. School 

District No. 15, Glacier County (Mont. 1985), 700 P.2d 617, 

621, 42 St.Rep. 745, 748. The evidence reviewed by this 

Court must be viewed in a light most favorable to the prevailing party. Gunnells v. Hoyt (Mont. 1981), 633 P.2d 1187, 

1191, 38 St.Rep. 1492, 1495. We will now review the evidence 

which substantially supports the jury verdict. Because 

sufficiency of the evidence is the critical question on 

appeal, a detailed review of the record is necessary. 

(b) The Trial Record 

Nelson's complaint alleged that Fairmont was negligent 

in failing to warn the plaintiff of the hazardous condition 
on the deck area around the outside pool and by failing to 

maintain and police the same. 

The defendant maintained that it took all reasonable 

steps to eliminate hazards and adequately warned of any 

possible hazards. Additionally, it asserted that Nelson 

assumed the risk of swimming past 10:OO p.m. at night and her 

accident was caused by her own negligence by swimming after 

consuming alcohol and by failing to use ordinary care in 

negotiating the obviously icy pathway. Lastly, the defense 

contended that the head, neck, back and shoulder injuries 

suffered by Nelson were not proximately caused by her fall at 

Fairmont since she was subsequently involved in an altercation in which her nose was broken and then involved in a car 

wreck which rendered her unconscious. 

Testimony at trial was conflicting on some points. 

This jury, based on the evidence, chose to believe the defendant, and that is their right. The trial judge is not allowed to weigh the evidence on a motion for new trial when 

conflicting evidence is presented. Lindquist v. Moran 

(1983), 203 Mont. 268, 662 P.2d 281. Such is the province of 

the jury. It is an abuse of discretion for the District 

Court to grant a new trial under the facts of this case. 

Lindquist, 662 P.2d at 285. 

It was clear that guests who swam after 10:OO p.m. did 

so at their own risk. Ten o'clock p.m. was the time when the 

lifeguards went off duty and the doors were locked to the 

general public. There were large signs on the entrance to 

the pool area and on the door to the outside pool stating 

this policy. 

Dan Klemann, executive assistant at Fairmont, testified 

regarding the pool facility and procedures of maintenance. 

He testified that on the roof of the adjacent building there 

are two 400-watt Mercury vapor lights which light the outdoor 
walkway to the pool. Pictures of the same were admitted into 

evidence and given to the jury to show the well-lit view of 

the walkway. 

Jake Maciag, a certified lifeguard employed at Fairmont 

during the time in question, also testified regarding the 

specific winter operation of Fairmont's outdoor pools. After 

Labor Day, the pool was only open to the general public from 

5:00 p.m. to 10:OO p.m. during the week, and from 1:30 p.m. 

to 10:OO p.m. on weekends. Additionally, doors to the outside pool from the men's and women's dressing rooms were 

sealed and access to the outdoor pool came only from one main 

door connecting the indoor pools. The door always had a 

large warning sign on it which read "CAUTION, ICE" or "WATCH 

FOR ICE." This door swung out to the pool so that anyone 

going to the outdoor pool necessarily would have to see the 

sign. 

Additionally, there was a specific procedure for 

"clearing the path" from the door to the edge of the outdoor 

pool. Lifeguards would come to work at 1:30 p.m. and immediately clean the pathway from the building to the edge of the 

outdoor pool. If ice was present, they would use a pump to 

force hot water onto the area, and the ice would be chipped 

away by hand, if necessary. Then, the path would be vacuumed. Between 1:30 and 10:OO p.m., lifeguards would maintain 

the pathway in this manner, policing it every twenty minutes, 

keeping it free from snow and ice. After the sun went down, 

it made it more difficult to keep the ice off in the evenings. In that case, rubber-backed mats were thrown over the 

ice. If these became encrusted with ice, they were also 

cleaned. 

The lifeguards went off duty at 10:OO p.m. At that 

time, they would place clean mats over the ice and. make 

certain the warning signs were on the door. The pool was 
closed to the general public at that time and heavy floodlights lit the path making any ice that was present readily 

visible. 

Barbara Barr, the pool manager in 1984, also testifieg. 

at trial. Barr was a certified lifeguard and she utilized 

both the Red Cross and the State Department of Health in 

developing safety procedures for her pool operation. 

Fairmont was inspected twice a year by officials from the 

Health Department and met all standards promulgated by the 

Department and passed on all safety requirements. Additionally, a fire marshal also inspected the premises and was 

satisfied with its condition and maintenance. 

Rarr also testified as to why these procedures were 

enacted as opposed to alternatives. Sand could not be used 

on this path because it would clog the pool pumps, as would 

de-icer solutions and rock salt. Additionally, de-icer and 

rock salt would burn the patron's bare feet. A canopy overhead to protect from falling snow would block the floodlights, without really curing the problem because the ice on 

the path also formed from water dripping off the patrons as 

they walked from pool to pool. 

Both Barr and Maciag testified that they had crossed 

this pathway on numerous occasions without incident and that 

it was not a hazard, but could be negotiated without problem 

if the swimmer used care. Both enforced the rules promulgated by Fairmont and neither were aware of any accident on 

December 31, 1984, because it had not been formally reported. 

Two hundred fifty thousand people per year visit the 

Fairmont resort, and a formal accident reporting procedure is 

used there. Any injured patrons are requested to report the 

incident and complete an accident report form. Fairmont's 

records show no record of Nelson's December 31, 1984, accident report. 
Plaintiff Nelson testified that she and her companions 

saw the ice on the pathway in the early morning hours of 

December 31, 1984, and were aware that it was slippery. All 

crossed the path safely to enter the outside pool. Plaintiff 

presented conflicting testimony as to how much alcohol she 

consumed that night and when. She did not see the warning 

sign. 

Plaintiff also presented expert testimony by Gerry Van 

Ackeren that the icy conditions of an outdoor pool constituted a substantial hazard to the users of the pool. Plaintiff makes much of the fact that although this evidence was 

controverted by many Fairmont professional employees, it was 

not controverted at trial by any qualified expert produced by 

Fairmont to testify. 

There was ice present on the walkway in the early 

morning hours of December 31, 1984. This condition was open 

and obvious. Certainly there was a jury question as to 

whether a hazard existed; whether Fairmont negligently allowed the hazard, if any, to exist; and whether it adequately 

warned patrons of the possible hazard. The jury was properly 

instructed on these issues and determined them accordingly 

based on the foregoing substantial credible evidence. The 

jury's verdict of "not negligent" is supported by the evidence of precautionary steps taken and warnings given by 

Fairmont. This Court will not substitute its judgment for 

that of the jury when no misconduct or abuse of discretion 

has been shown. We do not hesitate to reinstate a verdict 

supported by substantial credible evidence. Nelson v. 

Hartman (1982), 199 Mont. 295, 648 P.2d 1176. 

Based on the lengthy trial record and the foregoing 

evidence recited, appellant convinces this Court that the 

District Court abused its discretion by setting aside the 

verdict and awarding a new trial. 
The order granting new trial is vacated. The jury's 

verdict of September 22, 1987 is reinstated. 

7/~dyChief Justice 

We concur: