David Williams v. Scott Horner

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2453
___________
Jeanene Zebley, individually and as *
surviving mother on behalf of *
Fallon Zebley, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Heartland Industries of Dawson, Inc., *
*
Appellee. *
__________
Submitted: May 13, 2010
Filed: November 12, 2010
___________
Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.
___________
RILEY, Chief Judge.
Fallon Zebley (Fallon), a young woman with mental disabilities, died after she
jumped from the fifth-floor fire escape on a building in Fargo, North Dakota. At the
time of her death, Fallon was under the care and supervision of Heartland Industries
of Dawson, Inc. (Heartland), a licensed non-profit day training, habilitation, and
employment services provider. Fallon’s mother, Jeanene Zebley (Zebley), brought
this wrongful death action against Heartland. A jury returned a verdict in Heartland’s

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favor. The district court 1 denied Zebley’s post-trial motion attacking the jury’s
verdict. Zebley appeals. We affirm.
I. BACKGROUND2
A. Fallon and the Team
Fallon was born in 1981. In 1997, Fallon contracted encephalitis. Following
four months in a coma, Fallon emerged from the coma with severe brain damage.
Fallon’s brain injuries resulted in unpredictability, poor judgment, impulsivity,
suicidal ideations, seizures, and poor balance and gait. When Fallon became agitated,
her unpredictability, poor judgment, and impulsivity worsened. Fallon did not
understand the consequences of her actions, avoided responsibility and undesirable
activities, sought attention through negative means, and was verbally aggressive and
argumentative when “asked to do things she [did] not want to do.”
Various organizations helped Zebley and her husband care for Fallon after her
brain injury. Heartland provided Fallon with supported employment services,
including a “job coach.” Divine House provided residential support and maintained
Fallon’s residence, an apartment in Moorhead, Minnesota. SOLUTIONS Behavioral
Healthcare Professionals, Inc. (Solutions) provided behavioral management services.
Representatives from each of these organizations, along with Zebley’s parents and a
representative of Clay County, Minnesota, constituted Fallon’s interdisciplinary team
(team).
1The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
2
We recite the facts in the light most favorable to Heartland, affording Heartland
all reasonable inferences from the factual findings implicit in the jury’s verdict. See
Jones v. Nat’l Am. Univ., 608 F.3d 1039, 1046 (8th Cir. 2010).
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B. The RMAP and the BPP
The team identified various risks Fallon might encounter in life and approved
two plans designed to minimize Fallon’s exposure to those risks. Heartland developed
Fallon’s Risk Management and Assessment Plan (RMAP), and Solutions created
Fallon’s Behavior Program Protocol (BPP).
The RMAP, which detailed Fallon’s mental and physical impairments,
instructed Fallon’s care providers to “verbally and physically redirect Fallon as
needed to assure her safety.” The RMAP elaborated, “If Fallon engages in behavior
that jeopardizes her safety (i.e. walks away from staff . . .) staff may need to
physically intervene and if necessary follow . . . policies on emergency control
procedures.”
The BPP provided Fallon’s care providers with detailed guidance on how to
respond if Fallon exhibited certain behaviors. For outbursts in the workplace, the BPP
generally advised:
When Fallon becomes agitated and argumentative she will be given one
verbal prompt to find a quiet place to calm down. . . . She will be given
no longer than 30 minutes to calm and comply with the staff’s request to
process the incident,[3 ] due to vocational time constraints at her job site.
If, after 30 minutes, Fallon is not calm and refusing to process, her
vocational staff will contact [Aaron Benson, Heartland’s Fargo-
Moorhead Site Coordinator and Fallon’s Qualified Mental Retardation
Professional] and [Fallon’s] residential Program Coordinator to inform
them that Fallon be returned to her apartment.
3 “Process” is a term of art. To “process,” Fallon and her job coach would
analyze Fallon’s behavior, discovering why the incident occurred and how to avoid
such behavior in the future.
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In the event of a “physical outburst,” including “running away” or “throw[ing]
. . . items,” the BPP instructed Fallon’s job coach to immediately disengage from
Fallon so long as Fallon was not in danger. Christine Bietz, M.S., who authored the
BPP for Solutions, believed “physical intervention wasn’t really appropriate unless
there was an extreme health or safety risk.” In case of danger, the BPP advised
Fallon’s job coach to assess whether verbal or physical intervention was appropriate
under the circumstances. For example, the job coach might verbally prompt Fallon
to “calm” in a quiet and safe place. If the job coach was uncomfortable attempting to
intervene without assistance from other staff members, the BPP recommended the job
coach contact Solutions or a supervisor.
C. Supported Employment
Heartland employed Fallon as an apartment cleaner and trained Malena Rock
to supervise Fallon while Fallon worked at various worksites in the Fargo-Moorhead
area. Rock started working for Heartland as Fallon’s one-on-one job coach in August
2004. Rock’s duties included supervising Fallon’s work, assisting Fallon if she
needed help, keeping Fallon always within eyesight, motivating Fallon, ensuring
Fallon’s safety, and processing with Fallon after Fallon behaved improperly.
Rock and Fallon enjoyed a good working relationship, and Fallon improved
substantially under Rock’s tutelage. Fallon stopped “eloping” from worksites and
acting out physically, and her behavioral problems and need for processing
substantially diminished. Rock was Fallon’s best job coach, and served in that role
longer than any other person. Rock was calm, thorough, and consistent, and Fallon
craved consistency. Rock became very familiar with Fallon and utilized the RMAP
and BPP to ensure Fallon’s safety.
As of 2005, there was no identified acute risk Fallon would commit suicide.
Neither the RMAP nor the BPP specifically required Fallon’s care providers to
intervene with physical force to prevent Fallon from using stairs, balconies, or fire
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escapes. Fallon had not fallen down stairs—intentionally or accidentally—since 2001
or 2002. She lived in a second-floor apartment with access to a balcony and routinely
worked in multi-level buildings, including the six-story Ivers Building in downtown
Fargo.
Heartland inspected the Ivers Building for safety. Rock believed the Ivers
Building’s six-floor fire escape presented “challenges” in light of Fallon’s unsteady
gait and history of falling down stairs. The fire escape “scare[d]” Rock, who feared
Fallon “could get out there, [Rock] would not be in a position to deal with [Fallon,]
and something bad could happen.” Rock worried Fallon might fall, resulting in
serious injury or death. Unbeknownst to the rest of the team, however, Rock and
Fallon “cooled off” on the fire escape on hot days.
D. Death
On February 6, 2006, Rock picked up Fallon and drove her to the Ivers
Building for work. Fallon was in a good mood, joking, laughing, and talking about
the future. After they arrived, Fallon noticed some of the Ivers Building’s resident
employees were having a meeting. Fallon complained she was the only person
working in the building and that was not fair. Rock verbally redirected Fallon. Rock
explained the resident employees were having a meeting, just as Fallon occasionally
met with her team.
While cleaning the sixth floor, Fallon’s vacuum stopped working. Fallon
became agitated and complained Rock was throwing “stuff” on the floor to create
more work for Fallon. Rock again attempted to redirect Fallon verbally. Rock
explained that Rock and Fallon would need to go downstairs and get another vacuum
so Fallon could finish her work. Rock also told Fallon they would need to “process”
the incident. Fallon agreed to go downstairs.
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When Rock called the elevator, Fallon insisted upon using the stairs. Fallon
proceeded to the stairs with her broken vacuum. Rock “withdrew attention” from
Fallon and followed her down the stairs. Rock assumed Fallon was going to the
ground floor to pick up a new vacuum, but Fallon exited the stairwell at the fifth floor.
Rock then followed Fallon through a series of hallways. As Fallon navigated the fifth
floor, Rock thought Fallon might be looking for a place to calm, such as an interior
window ledge. On a previous occasion, Fallon sat down in the hallway after
becoming frustrated with Rock. Although Fallon’s designated calming place was on
the main floor, it was not uncommon for Fallon to choose her own calming place.
To Rock’s surprise and immediate consternation, Fallon suddenly slammed her
vacuum down and accelerated to a door leading to the fire escape. Rock was worried
Fallon might use the fire escape to leave the Ivers Building, but Rock did not have an
opportunity to stop Fallon from walking outside. Fallon glanced at Rock, opened the
door, and walked onto the fire escape. The door closed behind Fallon.
Rock ran to the fire escape, pushed open the fire escape door, and saw Fallon
sitting on the first step of the fire escape stairs leading up to the sixth floor. Fallon
was not agitated and appeared to be calming. Rock wanted to cajole Fallon inside but
worried physical intervention might agitate Fallon and cause her to run or possibly fall
down the fire escape stairs. Rock decided against climbing onto the fire escape,
instead propping the door open with her foot.
Rock told Fallon she should come back inside the Ivers Building, because it was
cold outside and they needed to process. Fallon refused. Rock made two cellular
telephone calls for backup. Solutions did not answer the first call, but on the second
call Rock was able to reach Heartland. Benson’s supervisor, Kerry Larson, told Rock
that Larson would send Chris Fester to help Rock process with Fallon. Larson
directed Rock to tell Fallon about Fester’s impending arrival to motivate Fallon to
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come inside. Rock told Fallon that, if Fallon did not come inside within five minutes,
Rock would call Fester to help Rock and Fallon process.
Fallon stood up and faced Rock. Rock initially thought Fallon was coming
back inside the Ivers Building, but Fallon suddenly threw her belongings down onto
the deck of the fire escape, turned away from Rock, grabbed the fire escape’s railing,
bent her knees, and jumped off the fire escape. Rock pushed the fire escape door open
when Fallon grabbed the railing, and reached for Fallon, but Rock could not stop
Fallon from jumping. Fallon died from injuries sustained in her fall.
E. Prior Proceedings
In 2007, Zebley filed this wrongful death action in the district court against
Heartland, “individually and as surviving mother of” Fallon. Zebley alleged
Heartland’s purported negligence was the direct and proximate cause of Fallon’s
death. Zebley pled three specifications of negligence: (1) failure to supervise Fallon
properly; (2) failure to train Rock properly; and (3) “[f]ailure to develop and
implement an appropriate program to protect Fallon from danger associated with her
disability and medical condition.”
In 2008, the district court presided over an eight-day jury trial. The jury
returned a verdict adverse to Zebley, finding Heartland was not “at fault in connection
with the death” of Fallon. The district court entered judgment in Heartland’s favor.
Zebley filed a motion for judgment as a matter of law or, in the alternative, for a new
trial, pursuant to Fed. R. Civ. P. 50 and 59 (post-trial motion), which Heartland
resisted. The district court denied Zebley’s post-trial motion, and Zebley appeals.
II. DISCUSSION
Zebley argues the district court erred in (1) instructing the jury on sudden
emergency and on hindsight, and (2) denying the post-trial motion. We examine these
two issues, in turn, after examining our jurisdiction. See Clark v. Baka, 593 F.3d 712,
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714 (8th Cir. 2010) (recognizing “every federal appellate court has a special
obligation to consider its own jurisdiction,” even if it must do so sua sponte) (quoting
McAdams v. McCord, 533 F.3d 924, 927 (8th Cir. 2008)).
A. Jurisdiction
Zebley invoked the district court’s diversity jurisdiction under 28 U.S.C.
§ 1332(a)(1), alleging the parties were citizens of different states and the amount in
controversy exceeded $75,000, exclusive of interest and costs. Zebley is a resident
of Fargo, North Dakota, and Heartland is a Minnesota corporation with its principal
place of business in Moorhead, Minnesota.
Before answering Zebley’s complaint, Heartland moved to dismiss under Fed.
R. Civ. P. 12(b)(1) for want of subject matter jurisdiction. Noting Fallon lived in
Moorhead, Heartland argued 28 U.S.C. § 1332(c)(2) destroyed diversity by deeming
Zebley to be a citizen of Minnesota.4 In relevant part, § 1332(c)(2) provides that “the
legal representative of the estate of a decedent shall be deemed to be a citizen only of
the same State as the decedent.” The district court denied Heartland’s motion. See
Zebley v. Heartland Indus. of Dawson, Inc., No. 2:07-CV-23, 2007 WL 2297196, at
*2-*3 (D.N.D. Aug. 6, 2007).
We agree with the well-reasoned decision of the district court. Section
1332(c)(2) is inapplicable because Zebley did not sue Heartland as “the legal
representative of [Fallon’s] estate.” Notwithstanding the fact Zebley styled her
complaint as a common law negligence action, Zebley sued Heartland in her capacity
as trustee for Fallon’s heirs under North Dakota’s wrongful death statute, N.D. Cent.
Code §§ 32-21-01, et seq. See also Armstrong v. Miller, 200 N.W.2d 282, 284 (N.D.
1972) (“At common law no action would lie to recover damages for the wrongful
death of a person. . . . The right of action for wrongful death is statutory.”). North
4Heartland now disavows this argument and concedes jurisdiction.
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Dakota’s wrongful death statute provides that any recovery on behalf of the decedent
does not redound to the decedent’s estate, but instead “inure[s] to the exclusive benefit
of the decedent’s heirs at law in such shares as the judge . . . shall fix.” N.D. Cent.
Code § 32-21-04. Although we have not previously analyzed the interplay between
North Dakota’s wrongful death statute and 28 U.S.C. § 1332(c)(2), we have found
diversity jurisdiction to be present in analogous circumstances. See Steinlage v. Mayo
Clinic Rochester, 435 F.3d 913, 917-20 (8th Cir. 2006) (examining 28 U.S.C.
§ 1332(c)(2) and Minn. Stat. § 573.02 which created a wrongful death cause of
action). The district court had subject matter jurisdiction under 28 U.S.C. § 1332(a),
and a fortiori we have jurisdiction under 28 U.S.C. § 1291.
B. Jury Instructions
1. Standard of Review
Our standard of review is narrow with respect to Zebley’s complaints about the
jury instructions.
We review a district court’s jury instructions for an abuse of
discretion. A district court possesses broad discretion in instructing the
jury, and jury instructions do not need to be technically perfect or even
a model of clarity. Our review is limited to whether the jury instructions,
taken as a whole, fairly and adequately represent the evidence and
applicable law in light of the issues presented to the jury in a particular
case. When sitting in diversity, a district court’s jury instructions must
fairly and adequately represent the law of the forum state. . . . And, even
if we find that a district court erroneously instructed the jury, we will
reverse only where the error affects the substantial rights of the parties.
McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 744-45 (8th Cir. 2010)
(citations and internal marks omitted).
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2. Sudden Emergency
Over Zebley’s objection, the district court gave the jury a sudden emergency
instruction. Final Jury Instruction No. 10 provided:
If suddenly faced with a dangerous situation the person did not
create, the person is not held to the same accuracy of judgment as one
would be if there were time for deliberation. The person is not at fault
if the person acted as an ordinary prudent person would act in a similar
emergency.
Zebley renewed her objection to the district court’s sudden emergency instruction in
her post-trial motion.
Zebley argues the sudden emergency instruction was improper because Rock
“created the emergency of Fallon being on the fire escape in the first place.” Zebley
excoriates Rock for “play[ing] a major part in creating the sudden emergency or
danger.” Zebley points out Rock was responsible for Fallon’s safety and, among other
things, was aware of Fallon’s unsteady gait, poor judgment, lack of impulse control,
history of falling down stairs, and suicidal ideation. Zebley stresses Fallon’s fall was
foreseeable to Rock, because Rock admits being wary about Fallon working in the
Ivers Building. Zebley surmises the sudden emergency instruction “prejudicially
lowered the standard of care.”
The district court did not abuse its discretion in giving the sudden emergency
instruction. The sudden emergency instruction was relevant to one of the issues in the
case—Rock’s response to at least the final part of Fallon’s conduct—and correctly
stated the law.
In Ebach v. Ralston, 510 N.W.2d 604 (N.D. 1994), the trial court gave a
materially similar sudden emergency instruction to the jury. Id. at 608-09. The
Ebachs were injured in an automobile accident and claimed the defendant, Ralston,
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negligently created a sudden emergency and then acted negligently during such
emergency. Id. at 610. The Ebachs argued the sudden emergency instruction
suggested a lower standard of care and warranted reversal. Id. at 608-09.
The North Dakota Supreme Court recognized the sudden emergency doctrine
was under siege in some jurisdictions, “because the typical sudden emergency
instruction may suggest a lower standard of care for a sudden emergency, thus
confusing responsibility for accidents under comparative negligence principles, and
because it adds little to ordinary negligence instructions.” Id. at 609.5 Nonetheless,
the court affirmed the trial court’s “carefully drafted” sudden emergency instruction.
Id. at 610-11. The court stressed the sudden emergency instruction, which “direct[ed]
that the emergency must not be created by the fault of the person claiming the
emergency,” was given in conjunction with an ordinary negligence instruction and did
not unduly emphasize the sudden emergency doctrine. Id. at 610. The court
concluded the trial court’s sudden emergency jury instruction
g[a]ve adequate guidance to the jury and latitude to the parties to argue
that a sudden emergency may have been caused by the [defendant]’s lack
of prior care and should have been anticipated. . . . The court’s
instructions allowed the Ebachs to present evidence and argue that
Ralston failed to exercise ordinary care in operating his truck both before
and during the alleged emergency. Those instructions do not require a
different standard of care than ordinary negligence . . . . [T]he jury
5Elsewhere, the North Dakota Supreme Court has explained “the focus for
determining tort liability has been shifted from traditional, doctrinal labels to the
singular, inclusive concept of ‘fault,’” Erickson v. Schwan, 453 N.W.2d 765, 768
(N.D. 1990), and has characterized the sudden emergency instruction as “not
indispensable,” Kreidt v. Burlington N. R.R., 615 N.W.2d 153, 156 (N.D. 2000). The
North Dakota Supreme Court has not, however, forbidden giving the instruction. Cf.
McClymont v. Morgan, 470 N.W.2d 768, 771-72 (Neb. 1991); Simonson v. White,
713 P.2d 983, 989-90 (Mont. 1986); Knapp v. Stanford, 392 So. 2d 196, 198-99
(Miss. 1980).
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instructions, as a whole, correctly and adequately advised the jury on
Ralston’s duty to exercise ordinary care under the circumstances.
Id. at 610-11 (citations omitted).
The same analysis applies with equal force here. Final Jury Instruction No. 10
accurately states the sudden emergency doctrine, reminding the jury that such doctrine
does not apply to self-created emergencies. Taken as a whole, the district court’s
instructions allowed Zebley to present evidence and argue Heartland’s negligence
created the emergency. In other instructions, the district court emphasized ordinary
principles of negligence governed and accurately stated the general principles of
comparative fault. Instruction No. 10 does not purport to require a standard of care
lower than ordinary negligence.
3. Hindsight
Over Zebley’s objection, the district court gave the jury a hindsight instruction.
Final Jury Instruction No. 9 provided:
In considering past conduct, you are not to use hindsight.
Negligence, as applicable here, is based upon what a reasonable person,
while exercising ordinary care, would have foreseen and would have
done in the light of reasonable foresight under the circumstances then
existing. The foreseeability contemplated by this instruction is not that
the exact harm was foreseeable, it is sufficient that the risk of harm be
generally foreseeable. The hallmark of ordinary care in this
circumstance is what a reasonable and prudent person, while exercising
ordinary care, would have done under the same or similar circumstances.
Zebley renewed her objection to the district court’s hindsight instruction in her post-
trial motion.
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Zebley argues the district court’s hindsight instruction is unprecedented and
unjustified—unprecedented because “[t]here is no North Dakota law supporting this
type of instruction in a negligence case” and unjustified because Heartland did not
adduce any “after acquired [sic] facts” tending to show Fallon’s death was
unforeseeable. Zebley maintains “[t]he instruction required the jury to ignore the
foreseeability of the dangers associated with Fallon being on the fire escape, to ignore
expert testimony, and to unduly focus on Rock’s and Fallon’s actions immediately
before Fallon fell when she was already on the fire escape.” Zebley points out
Heartland referred to the hindsight instruction during closing argument to discredit
Zebley’s expert witness, Dr. Kevin Schumacher. 6
The district court did not abuse its discretion in giving the hindsight instruction.
The district court’s hindsight instruction correctly stated North Dakota law. See
Martinson Bros. v. Hjellum, 359 N.W.2d 865, 874 (N.D. 1985) (remarking in a
negligence action that “[c]riticism in hindsight of one of many courses of action is not
probative of negligence”) (quotation omitted); Bjerke v. Heartso, 183 N.W.2d 496,
502 (N.D. 1971) (stating negligence must be determined “without the aid of
hindsight”). The instruction embodies the familiar principle that foresight, not
hindsight, is the measure of negligence. Cf. Oceanic Steam Navigation Co. v. Aitken,
196 U.S. 589, 595-96 (1905) (Holmes, J.) (“[N]egligence must be determined upon
the facts as they appeared at the time, and not by a judgment from actual consequences
which then were not to be apprehended by a prudent and competent man.”); Klisch v.
Meritcare Med. Group, 134 F.3d 1356, 1359 (8th Cir. 1998) (applying Minnesota law
and affirming the use of a similar hindsight instruction which charged the jury that
“[f]oresight, not hindsight, is the standard of negligence”). Far from directing the jury
to ignore relevant evidence, the hindsight instruction echoed Instruction No. 5, the
district court’s general negligence instruction, by stressing that “[t]he hallmark of
6Zebley did not object during closing argument.
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ordinary care in this circumstance is what a reasonable and prudent person, while
exercising ordinary care, would have done under the same or similar circumstances.”
Zebley’s allegation of prejudice concerning Heartland’s reference to the
hindsight instruction during closing argument is speculative. Dr. Schumacher testified
he “backtracked” from the fact Fallon died while in Heartland’s care “to see what
happened that day, . . . whether there were parts of the . . . [BPP] that might have led
to her death, whether there were decisions made that may reflect poor training . . . and
whether there might have been judgments made that were not appropriate.” In
context, Heartland’s reference to the hindsight instruction in closing merely reminded
the jury that the jury should not use hindsight to “backtrack,” but should instead focus
on what was reasonably foreseeable on or before February 6, 2006. Cf. Diesel Mach.,
Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 838-39 (8th Cir. 2005) (examining
propriety of statement during closing argument in context to evaluate potential
prejudice). Heartland’s closing argument did not, as Fallon seems to suggest,
encourage the jury to disregard Dr. Schumacher’s testimony simply because he
formed his opinion after the events in question. Indeed, if this were Heartland’s
closing argument, it would have undercut the testimony of Heartland’s own expert
witnesses.
4. Summary
On the whole, the district court’s jury instructions fairly and adequately
represented the evidence and applicable law in light of the issues presented. In any
event, Heartland cannot demonstrate prejudice.
C. Post-Trial Motion
1. Standards of Review
“We review a district court’s denial of a motion for judgment as a matter of law
de novo.” Heaton v. The Weitz Co., 534 F.3d 882, 887 (8th Cir. 2008). “We ‘must
affirm the jury’s verdict unless, after viewing the evidence in the light most favorable
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to [Zebley], we conclude that no reasonable jury could have found in [her] favor.’”
Id. (quoting Moysis v. DTG Datanet, 278 F.3d 819, 824 (8th Cir. 2002)). “We ‘will
not set aside a jury verdict unless there is a complete absence of probative facts to
support the verdict.’” Id. (quoting Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 769
(8th Cir. 2004)). “We review the district court’s denial of [Zebley’s] motion for a new
trial for abuse of discretion, and give the district court’s ruling high deference.” PFS
Distribution Co. v. Raduechel, 574 F.3d 580, 592 (8th Cir. 2009). “The crucial
determination ‘is whether a new trial should have been granted to avoid a miscarriage
of justice.’” Id. at 589 (quoting Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997)).
2. Analysis
In her post-trial motion, Zebley argued there was insufficient evidence to
support the jury’s verdict and, in the alternative, there was so little evidence to support
the verdict that the verdict represented a miscarriage of justice warranting a new trial.
The gravamen of Zebley’s argument, which she reasserts on appeal, was the trial
evidence overwhelmingly demonstrated that Heartland neglected its duty to keep
Fallon safe. Zebley opines the jury’s verdict “defies common sense and logic and
shows that the jury instructions affected the jury’s verdict.”
The district court did not err in denying the post-trial motion. There was
sufficient evidence to support the jury’s verdict, and the district court did not abuse
its discretion in determining the verdict does not represent a miscarriage of justice.
As indicated previously, the district court’s sudden emergency and hindsight
instructions correctly stated the law.
A reasonable jury also could find Heartland exercised ordinary care under the
circumstances. Heartland’s primary witness, Dr. David Mank, an expert in the field
of supported employment services, testified the BPP was “very well constructed, . . .
followed well and . . . there was no indication of . . . neglect of any kind.” Dr.
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Schumacher characterized the BPP as “beautifully written” and was unable to find
fault in its terms.
A reasonable jury could find Fallon’s suicide was unforeseeable. Fallon was
in good spirits on the morning of her death. Over time, Fallon’s behavior had
improved substantially under Rock’s supervision. Heartland inspected the Ivers
Building for safety, Fallon lived without incident in a second-story apartment with
access to a balcony, and Fallon had not fallen down stairs in approximately five years.
One of Heartland’s witnesses, Lori Flores, the Director of Divine House, opined Rock
could not have anticipated Fallon was in imminent danger until the moment Fallon
leaned over the fire escape’s railing. Dr. Mank agreed.
A reasonable jury could believe Rock acted appropriately at all times on
February 6, 2006. A reasonable jury could credit Rock’s testimony that she lacked
any opportunity physically to prevent Fallon from alighting the fire escape after Fallon
slammed down her vacuum, notwithstanding Dr. Schumacher’s speculation that Rock
“could have physically intervened.” A reasonable jury could find any further
intervention once Fallon climbed onto the fire escape would only have made matters
worse. Dr. Schumacher, Dr. Mank, and Flores agreed it would have exacerbated
matters if Rock had tried to force Fallon inside the Ivers Building. Dr. Mank
concluded Rock could not have foreseen Fallon would kill herself until she jumped.
The evidence sufficiently supports the jury’s verdict.
III. CONCLUSION
We affirm.
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