This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Beth Ann Stevens, et al.,

through her Guardian Ad Litem, Scott Stevens, et al.,





Allen J. Makitalo,



Triple R Enterprises of Duluth, Inc.,

d/b/a Blue Max Resort,



Jauert, Inc.,

d/b/a Eagle’s Nest Resort,



Filed June 18, 2002


Kalitowski, Judge


St. Louis County District Court

File No. C400600551


Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for appellants)


Steven E. Tomsche, Chandelle L. Heyer, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent Jauert, Inc.)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Beth Ann, Taylor, Scott, and Mary Stevens contend the district court erred by (1) denying their motion for judgment notwithstanding the verdict (JNOV); (2) erroneously instructing the jury regarding the definition of “obviously intoxicated”; (3) submitting an improper special verdict form; (4) improperly allowing respondent Eagle’s Nest Resort (resort) to cross-examine a police officer about information in a police report; (5) improperly excluding testimony from appellants’ expert witness; (6) improperly limiting appellants’ closing argument; (7) allowing the resort’s bartender to recant his testimony four days before trial and give inconsistent testimony during trial; (8) allowing the bartender to testify concerning his involvement in a car accident; and (9) denying their motion for a new trial based on alleged misconduct, lack of disclosure, and dishonesty by the resort and its counsel.  We affirm.



            In this dram shop action appellants argue they are entitled to a JNOV because the evidence shows that Allen Makitalo was exhibiting signs of obvious intoxication when served by the Eagle’s Nest Resort bartender.  We disagree.

JNOV is proper when a jury verdict is contrary to the applicable law or cannot be sustained by the evidence.  Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990).  The district court reviews any evidence in the light most favorable to the verdict and grants the motion only when the evidence is conclusive against the verdict “and reasonable minds can reach only one conclusion.”  Id. (quoting Nadeau v. County of Ramsey, 277 N.W.2d 520, 522 (Minn. 1979)).  A district court’s grant of JNOV is a question of law and this court reviews it de novo.  Id. at 449.

Here, the resort’s bartender testified that Makitalo did not exhibit signs of obvious intoxication when he served him a single beer.  And appellants provided no evidence concerning Makitalo’s behavior while at the resort prior to being served the beer.  Rather, appellants based their argument on estimates regarding the quantity of alcohol consumed by Makitalo and testimony from Makitalo’s boss concerning Makitalo’s conduct earlier in the day.  But the jury, as the finder of fact, judges witness credibility and the weight to be given to witnesses’ testimony.  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).  On this record we conclude the district court did not err in determining that the evidence was not conclusive against the verdict.


Appellants contend the district court erred because its choice of words in the jury instruction prejudiced appellants by singling out and weakening evidence favorable to their case.  We disagree. 

District courts have considerable latitude in selecting language used in the jury charge and in determining the propriety of a specific instruction.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  The district court’s charge “must be viewed in its entirety and from a practical and common-sense point of view.”  Cameron v. Evans, 241 Minn. 200, 208, 62 N.W.2d 793, 798 (1954) (citations omitted).  Provided that the jury instructions appropriately stated the law, this court will not reverse simply because a party preferred other language.  Alholm, 394 N.W.2d at 490. 

Here, the challenged instruction included the sentence:

A person is not obviously intoxicated within the meaning of the dram shop statute simply by virtue of having reached a certain blood alcohol content level.


Contrary to appellants’ assertion, this instruction did not advise the jury that blood alcohol content could not be considered as circumstantial evidence of a person’s intoxication.  Moreover, the Minnesota Supreme Court has stated that a high blood alcohol reading alone is not sufficient as a matter of law to establish obvious intoxication.  Seeley v. Sobczak, 281 N.W.2d 368, 371 (Minn. 1979).  We thus conclude that the jury instruction did not misstate the law.


            Appellants argue that the language in the special verdict form was an error of law because it suggests a higher standard is needed to find the resort liable than the Minnesota Dram Shop Act requires.  We disagree.

            “The trial court has broad discretion * * * in framing special verdict questions.”  Dang v. St. Paul Ramsey Medical Ctr., Inc., 490 N.W.2d 653, 658 (Minn. App. 1992) (citations omitted), review denied (Minn. Dec. 15, 1992).  Further, if a party does not object to the wording in the special verdict form at the time of trial, such party is only entitled to relief if the alleged error constitutes a fundamental error of law.  Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. App. 1989), review denied (Minn. July 12, 1989).  Appellants did not object to the special verdict form at trial, and therefore are only entitled to relief if the district court committed a fundamental error.

            The special verdict form asked, “[d]id an employee from the Eagle’s Nest Resort make an illegal sale of alcohol to Allen J. Makitalo while he was obviously intoxicated?”  Appellants object to the inclusion of the word “illegal” in the form.  But in Rambaum v. Swisher, 435 N.W.2d 19 (Minn. 1989), the supreme court found a proper dram shop analysis occurred when the special verdict question asked, “[d]id * * * Croatian Hall illegally sell an alcoholic beverage to * * * Swisher?”  Id. at 21 n.1.  Given the substantial similarity between the Rambaum special verdict form and the special verdict form here, we conclude there was no fundamental error of law.


            Appellants argue the district court erred by allowing the resort to cross-examine the officer about information in the police report contending the report was not admissible under Minn. Stat. § 169.09 and statements in it prejudiced appellants by suggesting Makitalo was not exhibiting signs of obvious intoxication.  We disagree.

            If the district court erred either in admitting or in excluding evidence, a reviewing court assesses whether the error was harmless, asking what effect the error had on the jury’s verdict and whether the jury’s verdict was attributable to the error.  See State v. King, 622 N.W.2d 800, 811 (Minn. 2001).  The scope of cross-examination is left largely to the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).

            Here, appellants argue that the resort’s cross-examination of the responding officer regarding his police report violated Minn. Stat. § 169.09, subd. 13 (2000).  But the supreme court has held that that statute does not bar the use of a traffic accident report to cross-examine an officer regarding facts observed by such officer.  Larson v. Montpetit, 275 Minn. 394, 404, 147 N.W.2d 580, 587 (Minn. 1966).  Here, the report was not admitted into evidence, and the officer cross-examined by the resort was involved in the investigation and was at the scene soon after the accident.  We conclude the district court acted within its discretion when it allowed respondent to cross-examine the officer about the accident report. 


            Appellants contend the district court abused its discretion and committed reversible error by precluding appellants’ expert, a doctor, from offering certain opinions that were not disclosed before trial.  We disagree.

            The exclusion of expert medical testimony lies within the district court’s sound discretion, and “will not be reversed unless it is based on an erroneous view of the law, or it constitutes an abuse of discretion.”  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1993) (citation omitted).  If an attorney’s failure to disclose is “inadvertent but harmful,” the court should impose less drastic remedies, such as granting a continuance and assessing costs against the party who is at fault.  Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986) (quotation omitted).  But the ultimate decision rests within the discretion of the district court, which is in the best position to assess possible prejudice and available remedies.  Id.

            Here, appellants’ expert was asked his opinion regarding the number of drinks Makitalo had in his system when he was served a beer at the resort.  The district court sustained the resort’s objection to the testimony because appellants had failed to disclose it prior to trial.  But the court did allow the doctor to testify concerning both Makitalo’s blood alcohol content at the time of the accident and the rate of absorption of alcohol into the system.  Thus, although the district court should have precluded the expert testimony only as a last resort, appellants were able to make their case and argument to the jury and therefore were not prejudiced.  Absent prejudice, we cannot conclude the district court’s ruling constituted reversible error.


Appellants claim the district court abused its discretion by limiting appellants’ closing argument, contending that they should have been able to argue based on the number of drinks Makitalo had at the time he purchased alcohol at the resort.  We disagree.

Appellants wanted to make inferences based on their expert’s excluded testimony.  But closing argument should focus on evidence admitted and reasonable inferences therefrom, and should not be designed to inflame the passions of the jury or to prejudice them against the defendant.  State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990).  Because their expert was not allowed to testify concerning the number of drinks consumed, it was within the district court’s discretion to deny appellants’ request to include this in final argument.


            Appellants argue they are entitled to a new trial because the resort’s bartender recanted his testimony four days before trial and gave inconsistent testimony during trial.  We disagree.

            “Courts have traditionally looked with disfavor on motions for a new trial based on recantation unless there are extraordinary and unusual circumstances.”  State v. Davis, 422 N.W.2d 296, 299 (Minn. App. 1988) (citation omitted).  A court must analyze a claim of false trial testimony under the three-part test enumerated in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928).  Dukes v. State, 621 N.W.2d 246, 257-58 (Minn. 2001).  A court may grant a new trial after recantation if:  (1) the court is “reasonably well satisfied” that the trial testimony was false; (2) the court concludes that the jury might have reached a different result without the false testimony; and (3) the petitioner was taken by surprise at trial by elicitation of the false testimony or did not know of its falsity until after trial.  Id. at 258 (citation omitted).

            Here, four days before trial, the bartender recanted statements he had made in his earlier deposition that he did not remember serving Makitalo.  Appellants cross-examined the bartender during trial concerning his first deposition.  Thus, the jury was able to compare the bartender’s deposition statement with his testimony at trial that he remembered serving Makitalo a single beer and then refusing to serve him any more drinks because he was rude. Because the jury heard and apparently believed the bartender’s testimony at trial, we cannot say the district court erred in concluding that appellants did not satisfy the Larrison test and are not entitled to a new trial.


            Appellants argue that they are entitled to a new trial because the district court allowed the bartender to testify concerning his involvement in a car accident as a reason for his failure to remember Makitalo.  Appellants contend this excuse was not disclosed before trial, was not relevant, and was offered to invoke passion on the part of the jury.  We disagree.

            Absent erroneous interpretation of the law, whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). 

Relevant evidence is evidence having

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.


Minn. R. Evid. 401.  Relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


Minn. R. Evid. 403.

Here, the bartender was allowed to testify regarding a car accident he was in five days after his first deposition including detailed testimony concerning the severity of his injuries and his recuperation process.  The testimony was offered to explain why he waited almost a year to notify anyone that between his deposition and the accident he remembered serving Makitalo.  Because he was the only witness at the resort who saw Makitalo, the bartender’s credibility was crucial.  And the alleged reason he delayed in disclosing his recovered memory is relevant to his trustworthiness.  Moreover, it is unlikely that any sympathy the jury may have felt toward the bartender would be transferred to his former employer, the resort.  Therefore, we conclude it was within the district court’s discretion to admit the testimony.


            Appellants argue they are entitled to a new trial because respondent and its counsel engaged in misconduct, lack of disclosure, and dishonesty.

The question of granting a new trial for misconduct of counsel is governed by no fixed rules, but rests almost wholly in the discretion of the trial court.


Nadeau, 277 N.W.2d at 523.

The purpose of a new trial is not to punish counsel, but to cure prejudice.  A new trial is not warranted unless the misconduct of counsel clearly resulted in prejudice to the losing party.


Sather v. Snedigar, 372 N.W.2d 836, 839 (Minn. App. 1985) (citations omitted).  The district court judge “is present during the trial and is best positioned to determine whether or not an attorney’s misconduct has prejudiced the jury.”  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). 

            Appellants’ first contention is that the resort improperly made references to the “goodness” of the resort even after the court denied further “goodness” testimony.  But the “goodness” references are not of the nature to deny appellants a fair trial.  Thus the district court’s decision to deny a new trial on this ground was within its discretion.

            Appellants also contend that they are entitled to a new trial because the resort’s counsel improperly vouched for the credibility of the resort and the bartender.  Minn. R. Prof. Conduct 3.4 (e) states that a lawyer cannot state a personal opinion about the credibility of the witness.

            Here, the record shows the resort’s counsel argued that the bartender should be considered credible, not that counsel thought he was credible.  Moreover, the resort’s counsel specifically asked the jury to make its own assessment and to be fair and appellants did not object to counsel’s comments during trial.  Because the record does not show that appellants were prejudiced by the comment, we conclude the district court properly denied appellants’ motion for a new trial. 

            Finally, appellants argue that the resort’s counsel committed misconduct by making comments during closing arguments based on facts not in evidence.  We disagree.  The district court heard the closing arguments and witnessed the jury’s reaction.  Thus, the district court was in the best position to determine the effects of the closing arguments on the jury.  Moreover the record indicates the final argument was supported by evidence in the record.  We conclude the district court properly determined that the resort’s counsel did not commit misconduct and appellants were not entitled to a new trial.