23CA1768 Farinas v 712 Mayor Patricia 12-12-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1768 Saguache County District Court No. 22CV30021 Honorable Christopher J. Munch, Judge
Luis Farinas,
Plaintiff-Appellee,
v.
712 Mayor Patricia, LLC, a Colorado limited liability company,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE KUHN Harris and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 12, 2024
Robinson & Henry, P.C., Benjamin C. Whitney, Denver, Colorado, for Plaintiff-Appellee
3I Law, LLC, April Greene Apking, Jessamyn L. Jones, Denver, Colorado, for Defendant-Appellant ¶1 In this negligence action, defendant 712 Mayor Patricia, LLC,
appeals the trial court’s order denying its motion for a directed
verdict against the plaintiff, Luis Farinas. We affirm.
I. Background
¶2 In the summer of 2021, 712 Mayor Patricia, a real estate
holding company, purchased a parcel of land in Saguache County
from South Platte Distributors, LLC. As part of that transaction,
712 Mayor Patricia agreed to (1) rent the premises to South Platte
and (2) replace an existing marijuana greenhouse on the property
with a different structure. In late November, LB Distribution, LLC,
bought the greenhouse for purposes of reusing its components. LB
Distribution agreed to disassemble and remove the structure from
the property.
¶3 Roughly two weeks later, a windstorm swept through the area,
blowing off multiple roof panels from the partially dismantled
greenhouse onto Farinas’s neighboring property. Some of the flying
debris hit Farinas’s two greenhouses, ripping through the protective
sheeting and exposing his marijuana plants to the freezing outside
environment. Following the storm, Farinas tried to patch the
damaged sheeting and restore appropriate temperature inside the
1 greenhouses using additional heaters. His attempts proved futile,
and he lost all 816 marijuana plants in his commercial crop.
¶4 Farinas brought a negligence action for the loss of his plants
against 712 Mayor Patricia, South Platte, and Duong Hau. Hau is
the owner of both 712 Mayor Patricia and South Platte. The
defendants filed a cross-complaint against LB Distribution, alleging
that it was negligent in the disassembly and removal of the
greenhouse from 712 Mayor Patricia’s property because “it failed to
adequately secure the [g]reenhouse during the windstorm.”1
¶5 The suit proceeded to trial and at the close of Farinas’s case,
the defendants moved for a directed verdict under C.R.C.P. 50.
They contended that Farinas “ha[d] failed to introduce . . .
permissible evidence of damages” and that he had failed to
establish that they owed him a legal duty of care at the time of the
accident. In addition, the defendants argued that there had been
no evidence that the corporate veil had been pierced with regard to
Hau. The trial court granted a directed verdict in favor of South
1 Because LB Distribution was unable to obtain representation, the
trial court dismissed it from the suit and designated it as a nonparty at fault.
2 Platte and Hau. But the court denied 712 Mayor Patricia’s motion
for a directed verdict and permitted it to make a further appellate
record by filing a supplemental written motion, which 712 Mayor
Patricia did.
¶6 The jury returned a verdict in Farinas’s favor, awarding him
$285,000 in damages and apportioning 75% of the fault to 712
Mayor Patricia and 25% to LB Distribution as a designated
nonparty at fault. Accordingly, the trial court entered judgment in
the amount of $213,750 against 712 Mayor Patricia.
¶7 On appeal, 712 Mayor Patricia contends that the court erred
by denying its motion for a directed verdict because Farinas failed
to establish (1) his damages with reasonable certainty and (2) that
712 Mayor Patricia owed him a legal duty of care at the time of the
accident. We disagree on both counts.
II. Analysis
A. Elements of Negligence and Standard of Review
¶8 To prevail on a negligence claim, a “plaintiff must show a legal
duty of care on the defendant’s part, breach of that duty, injury to
the plaintiff, and that the defendant’s breach caused the plaintiff’s
injury.” Day v. Johnson, 255 P.3d 1064, 1068-69 (Colo. 2011).
3 ¶9 C.R.C.P. 50 authorizes a party to move for a directed verdict
on a claim at the close of the evidence offered by the opposing party
or at the close of all the evidence. But “[d]irected verdicts are not
favored.” Langlois v. Bd. of Cnty. Comm’rs, 78 P.3d 1154, 1157
(Colo. App. 2003). A trial court may grant such relief “only if the
evidence, considered in the light most favorable to the nonmoving
party, ‘compels the conclusion that reasonable persons could not
disagree and that no evidence, or legitimate inference therefrom,
has been presented upon which a jury’s verdict against the moving
party could be sustained.’” State Farm Mut. Auto. Ins. Co. v.
Goddard, 2021 COA 15, ¶ 25 (quoting Burgess v. Mid-Century Ins.
Co., 841 P.2d 325, 328 (Colo. App. 1992)). Accordingly, the court
should deny a motion for a directed verdict “unless there is no
evidence that could support a verdict against the moving party on
the claim.” Parks v. Edward Dale Parrish LLC, 2019 COA 19, ¶ 10.
¶ 10 We review de novo the trial court’s ruling on a motion for a
directed verdict. Argo v. Hemphill, 2022 COA 104, ¶ 19. In doing
so, we apply the same standards the court does. Goddard, ¶ 25.
Whether a particular defendant owes a legal duty to a particular
4 plaintiff is also a question of law that we review de novo. See
Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 18.
B. The Trial Court Didn’t Err by Denying a Directed Verdict Based on the Evidence of Damages
¶ 11 712 Mayor Patricia contends that “[t]he trial court erred [by]
denying the motion for directed verdict because Mr. Farinas failed
to establish damages beyond mere speculation.” It contends that it
was entitled to a directed verdict on the issue of damages because
(1) Farinas “failed to present probative, credible, and competent
evidence of lost profits because he presented only his own
conclusory opinion of the gross revenue value of his [marijuana
plants]”; (2) Farinas presented no evidence as to whether his
destroyed plants were of “commercial quality” or had “value to
commercial buyers”; and (3) the sought lost profit damages were
improper given that “[t]he commercial marijuana industry is
speculative in nature.” We conclude that the first argument is not
preserved, and we’re not persuaded by the other two.
1. Applicable Law
¶ 12 “The principle of making the injured party whole underlies all
negligence cases.” Hodge v. Matrix Grp., Inc., 2022 COA 4, ¶ 13
5 (quoting Cope v. Vermeer Sales & Serv. of Colo., Inc., 650 P.2d 1307,
1309 (Colo. App. 1982)). “As a general rule, a party is entitled to
recover for damages that naturally and probably result from the
negligence of another.” Id. To do so, the party must prove the
damages they suffered with reasonable certainty. Boulders at
Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC, 2015
COA 85, ¶ 55.
¶ 13 However, “[t]he rule which precludes recovery of uncertain and
speculative damages applies only where the fact of damages is
uncertain, not where the amount is uncertain.” Cope, 650 P.2d at
1309 (citing Peterson v. Colo. Potato Flake & Mfg. Co., 435 P.2d 237,
239 (Colo. 1967)). Accordingly, once the party has established the
fact of damages, the party need not prove the measure of damages
with mathematical certainty. See Hoff & Leigh, Inc. v. Byler, 62
P.3d 1077, 1079 (Colo. App. 2002); see also Cope, 650 P.2d at 1309
(“Difficulty or uncertainty in determining the precise amount does
not prevent an award of damages.”). Rather, the party must only
“provide evidence sufficient to allow a reasonable estimate of the
loss sustained.” Byler, 62 P.3d at 1079.
6 2. Discussion
¶ 14 It’s a well-established rule that a property owner is competent
to testify about his opinion of the value of his own property without
being qualified as an expert, as long as that opinion is based on
proper considerations. See Vista Resorts, Inc. v. Goodyear Tire &
Rubber Co., 117 P.3d 60, 69 (Colo. App. 2004); In re Marriage of
Plummer, 709 P.2d 1388, 1389 (Colo. App. 1985); see also Denver
Urb. Renewal Auth. v. Berglund-Cherne Co., 568 P.2d 478, 483
(Colo. 1977) (extending this rule to the testimony about the value of
a company’s property from an officer of the corporation). Farinas
gave such an opinion in this case.
¶ 15 Farinas testified that he had lost in total 816 marijuana plants
due to the accident. In support, he presented a Metrc report that,
among other things, identified the reason for each plant’s death
(cold weather), its strain, the greenhouse it was grown in, and
whether the plant was in a vegetative or flowering phase.2 Farinas
2 Metrc is marijuana track and trace software that the Colorado
Department of Revenue, Marijuana Enforcement Division, utilizes to track medical and recreational marijuana markets through unique RFID identifiers that are integrated inside the software and assigned to each plant. Metrc, https://perma.cc/TPV2-432N.
7 had been growing commercial marijuana for about five years at the
time of trial. He stated that, in his experience, each plant could
produce between one and three pounds of flowers, which is the
portion of the plant he would sell. In calculating the value of his
plants, however, Farinas selected the lower end of this range and
assumed that each destroyed plant would have yielded one pound
of flowering material. Then, he multiplied 816 pounds of lost
product by the average market rate to arrive at the measure of his
damages — roughly $775,000.
¶ 16 Like the trial court, we conclude that Farinas’s opinion about
the value of his lost marijuana plants constituted sufficient
evidence to survive 712 Mayor Patricia’s motion for a directed
verdict and have the issue of damages submitted to the jury.
a. 712 Mayor Patricia Didn’t Preserve Its Net Profits Argument
¶ 17 In arguing otherwise, 712 Mayor Patricia asserts that Farinas
only presented his “self-serving testimony regarding what he
believed he would have sold his crop for.” Relying on Hoover v.
Shott, 189 P. 848 (Colo. 1920), it contends that Farinas was
required, but failed, to offer “evidence, by way of testimony or other
8 documentation, as to his overhead, cost of doing business, or
historical sales data to establish what his net profits would have
been had he sold his crops for the price stated.” In other words,
712 Mayor Patricia posits that it was entitled to a directed verdict
because Farinas’s damages calculation was based on his estimated
gross lost profits, not the profits he would have made after
incurring costs associated with the “maturing, harvesting, and
marketing” of his plants. See id. at 849.
¶ 18 But the record shows that 712 Mayor Patricia didn’t preserve
this argument in the trial court.3 At the close of Farinas’s case, 712
Mayor Patricia requested a directed verdict on the grounds that
Farinas didn’t present any documentation — such as receipts,
invoices, contracts, or manifests — in support of his opinion about
the market value of his plants, the amount of product his plants
would have yielded upon maturation, or whether he would have
been able to sell his product for the assumed price. 712 Mayor
3 We note that Farinas concedes preservation. However, we’re not bound by his concession because we have an independent, affirmative duty to determine whether this issue is preserved for appellate review. See People v. Tallent, 2021 CO 68, ¶ 11.
9 Patricia repeated those arguments in the supplemental motion for a
directed verdict it filed after the trial. It also supplemented its
arguments to point out that Farinas didn’t demonstrate he would
get a full crop, that he had any buyers, what they would purchase
the crop for, and whether he would get maximum return per plant.
And 712 Mayor Patricia argued that the marijuana market is
inherently speculative, preventing damages for lost profits. But at
no point did 712 Mayor Patricia contend that the measure of
Farinas’s damages was uncertain or speculative because it only
captured his gross, as opposed to his net, lost profits.
¶ 19 “It is axiomatic that issues not raised in or decided by a lower
court will not be addressed for the first time on appeal.” Melat,
Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61,
¶ 18; see also Valentine v. Mountain States Mut. Cas. Co., 252 P.3d
1182, 1188 n.4 (Colo. App. 2011) (“We review only the specific
arguments a party pursued before the district court.”). When a
party fails to advance an argument in the trial court, that argument
is generally deemed waived. Melat, Pressman & Higbie, L.L.P., ¶ 18.
Under the circumstances of this case, then, we conclude that 712
10 Mayor Patricia waived this issue. We thus decline to consider it
further.
b. Supporting Documentation for the Value of Farinas’s Plants
¶ 20 712 Mayor Patricia argues that a directed verdict was
warranted because Farinas presented no supporting documentation
— let alone expert testimony — about the market value of his
marijuana plants, that those plants would have produced the
amount of commercially viable product he assumed in calculating
his damages, or that he would have been able to sell the entire
expected yield to commercial sellers.
¶ 21 As we note above, Farinas didn’t need to be qualified as an
expert before he could opine about the value of the personal
property he had lost as the result of the accident. See Vista
Resorts, Inc., 117 P.3d at 69; Plummer, 709 P.2d at 1389. And
while, perhaps, supporting documentation and expert testimony
would have made Farinas’s case stronger, the absence of that
additional evidence doesn’t mean that “no evidence . . . has been
presented upon which a jury’s verdict against [712 Mayor Patricia]
could be sustained.” Goddard, ¶ 25 (citation omitted). Indeed, his
11 opinion as to the value of his plants constituted competent evidence
both as to the fact of damages and its amount.4 Byler, 62 P.3d at
1079.
¶ 22 Thus, what 712 Mayor Patricia effectively challenges here is
the weight to be given to that opinion considering that Farinas
didn’t introduce more evidence in support of his testimony. But the
weight to give to Farinas’s testimony — as well as his credibility —
when deciding damages were questions of fact for the jury to
resolve, not a question of law for the trial court to resolve at the
directed verdict stage of the proceedings. See Scholle v. Ehrichs,
2022 COA 87M, ¶ 50, aff’d in part and rev’d in part on other
grounds, 2024 CO 22.
c. Speculative Nature of Marijuana Industry
¶ 23 Finally, 712 Mayor Patricia posits that the trial court erred by
denying its motion for a directed verdict because the speculative
and unpredictable nature of the commercial marijuana industry
rendered the sought lost profit damages improper. It points out
4 Notably, 712 Mayor Patricia’s trial counsel conceded that, as the
owner of the plants, Farinas could testify about the average market rate for his plants.
12 that Farinas’s plants weren’t mature at the time of the storm and
that, in calculating the damages, he only speculated that they
would have reached maturity. Among other things, 712 Mayor
Patricia asserts that, while Farinas testified that a successful
cultivation required “good conditions,” he “failed to introduce any
evidence explaining these ideal conditions of growth, whether these
allegedly ideal conditions had the support of industry experts,
whether his greenhouse[s] met any of these conditions, or whether
he made any efforts to minimize the uncertain nature of crop
growth.”
¶ 24 But 712 Mayor Patricia can’t prevail on this argument because
Farinas did testify about these issues. He stated that, in his
experience, successful greenhouse marijuana cultivation was
dependent on the appropriate climate inside the greenhouse.
Farinas opined that a hot climate of about eighty degrees was ideal
and stated that he had maintained proper temperature inside both
greenhouses before they sustained damage. And he testified that,
at the time of the accident, the plants located in one greenhouse
were roughly three weeks out from harvest and those grown in the
other greenhouse would have been ready in about a month and a
13 half. This record shows that, even if we were to agree with 712
Mayor Patricia’s argument about the speculative nature of the
commercial marijuana industry as a whole, Farinas presented
evidence that his plants were close to maturity. Viewing this
evidence in the light most favorable to Farinas as the nonmoving
party, reasonable persons could conclude that his marijuana plants
— while immature at the time of the accident — would have fully
matured. See Goddard, ¶ 25.
¶ 25 In sum, we conclude that Farinas presented sufficient
evidence in support of his damages request for the trial court to
submit that issue to the jury and deny 712 Mayor Patricia’s motion
for a directed verdict. This claim thus fails.
C. The Trial Court Didn’t Err by Denying 712 Mayor Patricia’s Motion for a Directed Verdict on the Issue of Legal Duty of Care
¶ 26 712 Mayor Patricia next contends that the trial court erred
when it denied the motion for a directed verdict asserting that
Farinas had failed to establish that 712 Mayor Patricia owed him a
legal duty of care. Specifically, 712 Mayor Patricia contends (1) that
Farinas “presented no evidence that [712 Mayor Patricia] was the
possessor and in control of the greenhouse” that caused damage to
14 his property. It further asserts that, even if Farinas presented
sufficient evidence in support of the duty element of his negligence
claim, he didn’t (2) argue the proper standard for establishing a
legal duty “until the trial court gave him this information during the
[trial]” or (3) present any evidence regarding the proper standard of
care to establish a breach.
1. 712 Mayor Patricia Didn’t Preserve the Duty Argument Relying on Its Lack of Possession and Control of the Greenhouse
¶ 27 As an initial matter, in support of its argument that it had no
duty because it didn’t possess or control the greenhouse, 712
Mayor Patricia directs our attention to jury instruction number 9,
which the court drafted and provided to the jury after denying 712
Mayor Patricia’s motion for a directed verdict:
An owner of land is subject to liability for harm to persons outside of the owner’s land caused by activity of others on the owner’s land if landlord authorized the activity and if, but only if,
(a) the landowner, at the time of authorizing the activity, knew that the activity would be carried on, and
(b) the landowner knew or had reason to know that the activity would unavoidably involve an unreasonable risk without necessary precautions for safety being taken.
15 712 Mayor Patricia asserts that “[t]he trial court apparently based
this instruction” on the following language in section 54 of the
Restatement (Third) of Torts: “The possessor of land has a duty of
reasonable care for artificial conditions or conduct on the land that
poses a risk of physical harm to persons or property not on the
land.” Restatement (Third) of Torts: Liab. for Physical & Emotional
Harm § 54 (Am. L. Inst. 2012). Then, relying on the restatement’s
definition of a “possessor of land,” 712 Mayor Patricia contends that
LB Distribution, and not it, was the possessor of the greenhouse.
See id. at § 49. 712 Mayor Patricia then concludes that LB
Distribution owned the greenhouse and was solely responsible for
its disassembly and removal from the property.
¶ 28 But contrary to 712 Mayor Patricia’s assertion, the trial court
didn’t base its duty instruction on section 54 of the Restatement
(Third) of Torts. Instead, it relied on a case from a division of this
court. As the trial court told the parties during oral argument on
the motion for a directed verdict, it was basing the jury instruction
on a restatement provision that the division adopted in Gonzales v.
Bierman, 773 P.2d 629 (Colo. App. 1989). The Gonzales court
16 adopted section 379A of the Restatement (Second) of Torts (Am. L.
Inst. 1965), which says that
[a] lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,
(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.
Gonzales, 773 P.2d at 630.
¶ 29 Accordingly, 712 Mayor Patricia’s argument that it had no
legal duty under section 54 of the Restatement (Third) of Torts
because it wasn’t the possessor of the greenhouse is misplaced.
That argument is premised on the incorrect characterization of the
court’s instruction and inapplicable law.
¶ 30 Regardless, this argument is waived because 712 Mayor
Patricia failed to preserve it in the trial court. 712 Mayor Patricia
contended that it was entitled to a directed verdict on the issue of
duty because the Colorado Premises Liability Act (PLA) abrogated a
17 common law duty of a landowner to others. It further argued that,
even if a landowner’s duty continued to exist after the PLA was
enacted, LB Distribution — not 712 Mayor Patricia — was the
landowner “under the alternative definition of landowner created by
the PLA and the [Colorado] Supreme Court” in Jordan v. Panorama
Orthopedics & Spine Center, PC, 2015 CO 24. And in support of
this argument, 712 Mayor Patricia asserted that LB Distribution
conducted “an activity on the [p]roperty when [it took] possession of
its own greenhouse” and “legally created the condition during the
disassembly of the greenhouse.”
¶ 31 True, during argument on its oral motion for a directed
verdict, 712 Mayor Patricia argued that it had no duty because it
was “undisputed that [it] didn’t control, possess, or own the injury
causing circumstance” (i.e. the greenhouse). But it also premised
this argument on the PLA and the assertion that there was no
common law negligence claim. Specifically, 712 Mayor Patricia
cited Woods v. Delgar Ltd., 226 P.3d 1178 (Colo. App. 2009), to
argue that Gonzales and section 379A of the Restatement (Second)
of Torts didn’t apply here.
18 ¶ 32 But it didn’t argue what it argues on appeal: that the trial
court’s instruction adopted the duty standard set forth in section
54 of the Restatement (Third) of Torts; that 712 Mayor Patricia
didn’t owe a legal duty under that standard because it wasn’t a
“possessor of land” within the meaning of that term under section
49 of the Restatement (Third) of Torts; and that the court’s duty
jury instruction, in 712 Mayor Patricia’s words, “presupposed that
[712 Mayor Patricia] was the ‘possessor’ of the greenhouse at the
time of the alleged damage to Mr. Farinas’[s] crops, alleviating [him]
of his burden of proof related to [712 Mayor Patricia’s] duty to him.”
¶ 33 Because 712 Mayor Patricia failed to present these points in
its motion for a directed verdict, the trial court had no opportunity
to assess their merits when ruling on the motion. See Cuevas v.
Pub. Serv. Co. of Colo., 2023 COA 64M, ¶ 35 n.3 (noting that
although parties are not required to use “talismanic language” to
preserve issues for appeal, the district court must be presented with
an adequate opportunity to make findings of fact and conclusions of
law on the issue (quoting People v. Melendez, 102 P.3d 315, 322
(Colo. 2004))) (cert. granted in part July 1, 2024). Under these
19 circumstances, we consider this issue waived, and we decline to
address it further. See Melat, Pressman & Higbie, L.L.P., ¶ 18.
2. 712 Mayor Patricia Didn’t Preserve Its Instructional Challenge
¶ 34 712 Mayor Patricia also argues for the first time on appeal that
because Farinas didn’t provide a jury instruction setting forth “the
correct standard by which to establish a duty under a common law
negligence claim, it was error for the trial court to provide the
proper standard for him.”
¶ 35 However, the record shows that during oral argument on the
motion for a directed verdict, 712 Mayor Patricia itself agreed to the
jury instruction that the court prepared sua sponte. Specifically,
after the trial court observed that section 379A of the Restatement
(Second) of Torts set forth the governing duty of care standard, it
pointed out that neither party had requested “an instruction out of
the restatement.” Acknowledging that “generally, [courts] don’t give
instructions . . . sua sponte,” the trial court told the parties that it
had drafted a jury instruction based on the restatement and gave
them an opportunity to review the proposed draft. In response, 712
Mayor Patricia’s trial counsel stated, “I think you have to give this
20 instruction based on the case I read last night. So, I would agree.
I’m -- I’m in favor of this instruction.”
¶ 36 True, the record also shows that 712 Mayor Patricia later
objected to the duty instruction, stating that “just for the record,
. . . note [712 Mayor Patricia’s] objection to the inclusion of the
off-premise-landowner duty instruction . . . based on the
restatement.” But in doing so, 712 Mayor Patricia didn’t argue that
the instruction was improper because the court drafted it sua
sponte. See Vikell Invs. Pac., Inc. v. Kip Hampden, Ltd., 946 P.2d
589, 596 (Colo. App. 1997) (“A general objection to an instruction is
not sufficient to preserve a specific objection for appeal.”); see also
Valentine, 252 P.3d at 1188 n.4. Because 712 Mayor Patricia failed
to preserve this argument in the trial court, it is likewise waived,
and we decline to address it on the merits. See Melat, Pressman &
Higbie, L.L.P., ¶ 18.
3. Standard of Care for Disassembling and Removing a Greenhouse
¶ 37 Finally, we’re not persuaded by 712 Mayor Patricia’s argument
that it was entitled to a directed verdict because no reasonable jury
would have been able to find that it breached its legal duty of care
21 given that Farinas didn’t establish what a reasonable care was in
dismantling and removing a greenhouse. It’s true that Farinas
didn’t present specific evidence regarding, in 712 Mayor Patricia’s
words, “the proper way to disassemble and remove the greenhouse.”
But 712 Mayor Patricia doesn’t provide any compelling argument or
authorities indicating why such specific proof was required under
the circumstances of this case.
¶ 38 Indeed, there is other evidence in the record from which a
reasonable juror could have concluded what the duty of care was
and that 712 Mayor Patricia breached it. Aubin Kemp, the owner of
LB Distribution, testified that he had dismantled the greenhouse
with the help of his three friends. Kemp stated that neither he nor
his friends were licensed contractors or had experience with the
type of work they did on 712 Mayor Patricia’s property. He also
testified that the greenhouse panels were secured through an
interlock system that was supposed to hold them down if there was
any wind and that he detached the panels from that system during
the dismantling process. When asked what he did to secure the
panels once they were removed from the structure, Kemp testified
that he threw unusable panels into 712 Mayor Patricia’s dumpster
22 and put “rocks or something on them . . . because a lot of times if
something’s even laying on the ground [t]here, the wind can pick it
up and throw it around.” And he further stated that Timothy Dang,
who had brokered the greenhouse transaction on 712 Mayor
Patricia’s behalf, helped him dispose of those panels.
¶ 39 Viewing this evidence in the light most favorable to Farinas as
the nonmoving party, a reasonable jury could conclude that the
exercise of reasonable care required better securing the panels after
they were removed from the greenhouse. See Goddard, ¶ 25. The
court therefore didn’t err when it denied Mayor Patricia’s motion for
a directed verdict and submitted the issues of duty and breach to
the jury.
III. Disposition
¶ 40 The judgment is affirmed.
JUDGE HARRIS and JUDGE YUN concur.