This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-960

Carmen Parr, as Parent and Natural
Guardian of the Minor C.P.-P.,
Appellant,

vs.

Jerry Carl Immerman, et al.,
Respondents.

Filed January 25, 2000
Affirmed in part, reversed in part, and remanded
Holtan, Judge[*]

Ramsey County District Court
File No. C8983081

Gary B. Bodelson, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

Dan T. Ryerson, James T. Martin, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina, MN 55435 (for respondents)

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

On March 13, 1998, an action commenced in district court against respondent Jerry Immerman, alleging that Immerman negligently struck the minor appellant, C.P.-P., with an automobile on November 25, 1994. On March 15, 1999, the jury returned a unanimous verdict finding that neither appellant nor respondent were negligent. The jury found the reasonable value of medical supplies and hospital and medical expenses, including expenses for a personal care attendant, necessary for treatment and care of C.P.-P. up to the time of trial was $182,628.21. The jury found the reasonable value of medical supplies and medical and psychological expenses of every kind necessary for treatment of C.P.-P. in the future was $60,000. The jury found C.P.-P. sustained damage in the amount of $200,000 because of a loss of future earning capacity resulting from the accident. However, the jury found C.P.-P. did not sustain any damages for past or future pain, disability, or emotional distress and appellant is not entitled to recover damages from respondent. We affirm in part, reverse in part, and remand.

FACTS

On November 25, 1994, at approximately 3:30 p.m., C.P.-P., a 12-year-old male, was injured in a collision with a car driven by Jerry Immerman. Joshua Immerman, Jerry Immermanís nephew, was in the front passenger seat at the time of the collision. C.P.-P. was on foot, proceeding east across Marion Street, which runs north and south. C.P.-P. was crossing the street south of the intersection of Thomas and Marion Street, and he was not in a crosswalk. Jerry Immerman was traveling south on Marion Street and neither he nor his nephew saw C.P.-P. on the west side of Marion. Suddenly, there was a loud thump on the passenger side of the car and the passenger side window broke, spraying glass inside the car. The Immerman car came to a stop about 114 feet down the street, without either driver or passenger realizing the car had collided with a pedestrian. After backing up a short distance and getting out of the car, the Immermans realized C.P.-P. had been struck and was lying unconscious in the street.

The St. Paul police department, including Officer Mark Moran, arrived at the accident scene within a few minutes after the accident. Officer Moran found Jerry Immerman to be visibly shaken and very quiet. Moran noted the damage on the Immerman vehicle, particularly the smashed windshield and the cracked right passenger window, and he observed debris in the street. He and other officers took measurements and photographed the vehicle and accident scene.

C.P.-P. was taken by ambulance to St. Paul Ramsey Hospital, where he was treated for severe head injuries. C.P.-P. remained in a coma for nearly seven days after the accident, and he remembers nothing regarding the accident. C.P.-P. participated in intensive rehabilitative therapy for approximately one month following the accident, prior to his hospital release. Appellant presented several witnesses who commented on C.P.-P.ís physical and mental capacities before and after the accident.

The speed limit on Marion Street is 30 mph. At trial, there was conflicting evidence regarding the speed of the Immerman vehicle. Appellant presented a witness who had been driving northbound on Marion. The witness testified the Immerman vehicle was traveling 35 to 40 mph as it approached the accident scene and the impact took place in the Thomas/Marion intersection. The driver of another car, proceeding southbound on Marion a few car lengths behind Immerman, testified she was driving about 25-30 mph behind the Immerman car and it did not increase its distance from her as it approached the accident scene. The trial court did not allow another witness, Tanika Butler, to give an opinion regarding speed of the Immerman car. Jerry Immerman testified he was driving less than 15 mph.

Over objection, the trial court permitted Officer Moran to state it was his opinion the initial impact of C.P.-P. with the car was on the windshield by the passenger side of the car.

Appellant also objected to the testimony of Kevin Grantz, an independent investigator whose interview with Tanika Butler in part impeached her testimony. Grantz was disclosed as an investigator in respondentís discovery responses and on respondentís witness list filed February 22, 1999. The court allowed Grantzís testimony, but prohibited cross-examination regarding his initial employment with respondentís liability insurer.

D E C I S I O N

I.

During trial, respondent introduced Officer Moran as a witness. Officer Moran testified about his perception of the accident scene, including his opinion regarding the point of impact between the car and C.P.-P. Appellant argued that Officer Moran was a "surprise" expert witness, appellant was not given notice of Officer Moranís expert testimony, and Officer Moranís expert testimony was highly prejudicial to appellant.

Rulings on the admission or exclusion of evidence are generally left to the broad discretion of the trial court. Such rulings are not disturbed on appeal, unless they are based on an erroneous view of the law or constitute an abuse of the courtís discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Whether "to permit the use of expert testimony, even on short notice, is within the discretion of the trial court." Newmaster v. Mahmood, 361 N.W.2d 130, 133 (Minn. App. 1985) (citation omitted).

Appellant argues that even though Officer Moran was listed on respondentís witness and exhibit list, there was inadequate notice because Officer Moran was not listed as an expert witness. Throughout Officer Moranís testimony, the trial court never conceded that Officer Moran was an expert witness. Appellant concluded Officer Moran was an expert witness because he gave his opinion regarding the point of impact between C.P.-P. and the car, and in appellantís opinion, only an accident reconstructionist is qualified to offer such an opinion.

Even if appellant is correct in concluding Officer Moran was an expert witness, the trial court did not err in allowing Officer Moran to testify. Where a party knows, before trial, what the testimony will consist of, that precludes any claim of "surprise." Swanson v. Williams, 303 Minn. 433, 435, 228 N.W.2d 860, 862 (1975). Even if expert testimony is introduced for the first time at trial, that does not constitute unfair surprise where the testimony consists only of evidence that "should be expected" in a case of that type. Rands v. Forest Lake Lumber Mart, Inc., 402 N.W.2d 565, 568 (Minn. App. 1987).

Once again, Officer Moranís name appeared on respondentís witness and exhibit list prior to trial. This case involves an accident with police reports, diagrams, photographs, and measurements from the accident scene. Appellant was in possession of every aspect of the police report. Considering appellant knew the contents of the police report and Officer Moranís name appeared on respondentís witness list, it is unlikely that appellant could not foresee Officer Moran discussing the accident at trial. There was no abuse of discretion.

II.

Rulings on the admission or exclusion of evidence are generally left to the broad discretion of the trial court. Such rulings are not disturbed on appeal, unless they are "based on an erroneous view of the law or constitute[ ] an abuse of discretion." Uselman, 464 N.W.2d at 138. If the trial courtís decision was correct, it should not be reversed merely because the stated reason for the decision was not correct. Brecht v. Schramm, 266 N.W.2d 514, 520 (Minn. 1978). Error that "does not affect the substantial rights of the parties" is harmless and does not furnish grounds for granting a new trial. Minn. R. Civ. P. 61. It is the burden of the appellant to demonstrate that alleged errors prejudiced her by affecting the result in the case. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).

A. The record shows appellant objected to the testimony of Officer Moran concerning what Jerry Immerman told Moran at the accident scene, and the objection was overruled by the trial court. The court stated, "I overruled the hearsay objection under 801.1--or 801(d)(1)(C)--or not C, D--thatís it--and other exceptions and other parts of the hearsay rule."

A statement is not hearsay if it is a prior statement of the declarant who is subject to cross-examination and it describes or explains an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. Committee comments to rule 801(d)(1)(D) explain the statement must be made "at or near the time" the declarant perceives the event. Minn. R. Evid. 801(d)(1)(D) 1989 comm. cmt. An automatic safeguard exists in requiring that the declarant be subject to cross-examination. Minn. R. Evid. 801(d)(1)(D). There is no precise rule defining how many minutes constitute "at or near the time" of the event. However, the supreme court held oral statements made to police "within a few minutes" after an accident are admissible, whereas written statements, different from the immediate oral statements, taken within an hour after the event are not admissible. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

Appellant argues that Jerry Immermanís statement was not made at or near the time of the event because the police arrived after C.P.-P.ís motherís arrival a few minutes following the accident. However, no evidence indicates that a substantial amount of time, beyond a few minutes, passed prior to arrival of the police. Appellant failed to show that too much time passed from when the accident took place until Jerry Immermanís statement was taken for the statement to be admitted under rule 801(d)(1)(D). There was no abuse of discretion.

B. The supreme court has held that absent a clear abuse of discretion by the trial court, its decision regarding sufficient foundation for opinion testimony will not be reversed. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990). Tanika Butler testified she turned to her left and saw C.P.-P. immediately before he entered the street and was hit by the Immerman car. The trial court thus sustained the objection to her opinion on speed, based on lack of foundation. Given that Butler testified she saw the accident as it happened, but she did not witness the scene for a substantial time leading up to the accident, it is reasonable to conclude Butler was incapable of judging the speed of the Immerman car. There was no abuse of discretion.

C. It is within the trial courtís discretion to permit rebuttal testimony by an expert witness who was not disclosed on pretrial answers. Dorn v. Home Farmers Mut. Ins. Assín, 300 Minn. 414, 419, 220 N.W.2d 503, 506 (1974). In this case, Grantz was listed as a potential witness, both in interrogatory answers and on the witness list. Grantzís conversation with Tanika Butler, impeaching Butler, was not disclosed until February 22, 1999. Appellant argues the disclosure of the impeaching testimony was untimely and should be excluded. The trial court permitted the testimony both because it was rebuttal testimony impeaching a witness and because Grantz was delayed from speaking to Butler due to Butlerís erroneous address and telephone number. Appellant was on notice prior to trial that Grantz might present testimony impeaching Butler, yet appellant still called Butler to the stand. This may be a strategic error on behalf of appellant, but it is not an abuse of discretion by the trial court.

D. Minnesota courts have long recognized that mention or even suggestion of the presence or absence of liability insurance in negligence trials is improper. See Olson v. Prayfrock, 254 Minn. 42, 44, 94 N.W.2d 540, 542 (1958) (stating that counselís statement was made to convey to the jury that the defendant was not insured and was therefore improper). It was clear to the jury that Grantz testified on behalf of the defendant. Given the trial courtís broad discretion, there was no abuse of discretion in prohibiting mention of Grantzís employment due to the potential prejudicial effect on the jury.

III.

In reviewing the denial of a motion for a new trial, based on the ground that the evidence was insufficient to support the juryís verdict, this court should view the evidence in the "light most favorable to the verdict." Gordon v. Hoffman, 303 N.W.2d 250, 252 (Minn. 1981). The evidence supporting the verdict should be accepted as true, and the prevailing party is to be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. See Majerus v. Guelsow, 262 Minn. 1, 7, 113 N.W.2d 450, 454 (1962) (affirming the trial courtís denial of a directed verdict, judgment notwithstanding the verdict, and a new trial).

Clearly, substantial evidence supported the verdict. Appellant argues there was also evidence contradicting the verdict, thus the verdict should be overturned. Both appellant and respondent presented witnesses who testified regarding the speed of the vehicle, the location of the accident, damage to the vehicle, and injury to C.P.-P. The jury weighed the evidence and concluded neither appellant nor respondent was negligent. There was no abuse of discretion.

IV.

Whether or not to grant a new trial on the ground of inadequate damages is left to the discretion of the trial court. The denial of a new trial on that ground will not be reversed absent a clear abuse of discretion. Ramfjord v. Sullivan, 301 Minn. 238, 245, 222 N.W.2d 541, 546 (1974). The trial courtís determination as to the adequacy of damages will not be reversed "except in the most unusual circumstance." Parr v. Cloutier, 297 N.W.2d 138, 140 (Minn. 1980). If a jury finds the defendant not liable in a negligence case, even arguably inadequate damages will not warrant a new trial. Hernandez v. Renville Pub. Sch. Dist., 542 N.W.2d 671, 675 (Minn. App. 1996), review denied (Minn. Mar. 28, 1996).

The juryís finding for special damages, but no general damages, is most unusual and contradictory. It is illogical to determine C.P.-P. suffered medical, psychological, and future earning capacity damages, yet also determine C.P.-P. sustained no damages for past or future pain, disability, or emotional distress. A person who suffers medical, psychological, and future earning capacity damages certainly sustains future pain, disability, and emotional distress damages. The trial courtís finding on damages represents a clear abuse of discretion.

We affirm the trial courtís decision but for the issue of damages. We reverse on the damages issue and remand to the trial court.

Affirmed in part, reversed in part, and remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.