This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-857

Wendy Garman,
Respondent,

vs.

Darlene Kaska,
Appellant.

Filed January 25, 2000
Affirmed
Willis, Judge

St. Louis County District Court
File No. C097100374

Darrold E. Persson, David A. Arndt, Matonich & Persson, Chtd., 2031 Second Avenue East, P.O. Box 127, Hibbing, MN 55746 (for respondent)

Robert H. Magie, III, Steven J. Sheridan, Magie, Andresen, Haag, Paciotti, Butterworth & McCarthy, 1000 Alworth Building, P.O. Box 745, Duluth, MN 55801 (for appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Darlene Kaska argues that she is entitled to a new trial because the district court refused to allow into evidence a portion of an accident report prepared by a police officer who died before trial. We affirm.

FACTS

On March 9, 1995, the parties were involved in an automobile accident in which their vehicles collided nearly head-on at the centerline of a city street in Gilbert. Officer Patrick Hogan of the Gilbert Police Department responded to the accident and prepared an accident report.

At trial of this negligence suit in March 1999, each party alleged that the other had crossed the centerline and caused the accident. Because Officer Hogan’s accident report described on which side of the centerline he observed accident debris, and he was not available to testify because of his death before this lawsuit was filed, Kaska sought to introduce a portion of the accident report at trial. The district court ruled the report inadmissible under Minn. Stat. § 169.09, subd. 13(b) (1998), and the jury found each party 50 percent at fault. Kaska’s motion for new trial was denied, and this appeal followed.

D E C I S I O N

Kaska argues that the district court erred in refusing to allow into evidence a portion of Officer Hogan’s accident report. The evidentiary rulings of a district court will not be disturbed absent an erroneous view of the law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

The statute under which the district court ruled Officer Hogan’s report inadmissible provides that no accident report "shall be used as evidence in any trial, civil or criminal, arising out of an accident." Minn. Stat. § 169.09, subd. 13(b) (1998). Kaska argues that section 169.09 does not preclude the use of portions of a traffic report that reflect the observations of a police officer, citing Larson v. Montpetit, 275 Minn. 394, 147 N.W.2d 580 (1966), and Ackerman v. Theis, 281 Minn. 82, 160 N.W.2d 583 (1968).

But the supreme court in Larson affirmed use of an accident report only for the purpose of impeaching the testimony of the officer who prepared the report. Larson, 275 Minn. at 400-04, 147 N.W.2d at 585-87. The jury was not allowed to see the report. Id. at 400, 147 N.W.2d at 584. In Ackerman, the court concluded that the statute does not bar a testifying officer who prepared an accident report from referring to the report to refresh his recollection. Ackerman, 281 Minn. at 85, 160 N.W.2d at 584; see State v. Schultz, 392 N.W.2d 305, 307 (Minn. App. 1986) (stating that police officer may use report to refresh his memory while testifying to facts within his knowledge even though report itself is inadmissible). Neither of these cases, which both involve "use" of an accident report in connection with witness testimony, supports Kaska’s argument that an accident report, or a portion of a report, may be admitted into evidence in clear contravention of the language of Minn. Stat. § 169.09. The district court did not err by refusing to admit any portion of the accident report.

Affirmed.