This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-1833

 

 

Christine L. Bottema, et al.,

Appellants,

 

vs.

 

Benjamin R. Dallenbach,

Respondent.

 

 

Filed June 10, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 18129

 

 

Paige J. Donnelly, Mark A. Lund, Paige J. Donnelly, Ltd., 325 Cedar Street, Suite 900, St. Paul, MN 55101 (for appellants)

 

Scott B. Lundquist, Lundquist Law Offices, P.A., 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for respondent)

 

 

Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Christine L. and Jon Bottema claim the district court erred by excluding portions of a police officer's testimony. The Bottemas also challenge the denial of their demand for a new trial, arguing the jury's verdict was not supported by a preponderance of the evidence and the award of damages was perverse. We affirm.

FACTS

On the morning of January 4, 1999, although there were some icy spots on I-694, the interstate was for the most part dry, and the visibility and weather conditions were good. Respondent Benjamin R. Dallenbach waited behind four or five cars at a metered entrance ramp before attempting to enter the traffic lane. When it was Dallenbach's turn, he saw a 100-yard gap in traffic, accelerated to match the speed of the other vehicles on the road, signaled his lane change, and began to merge.

While merging, Dallenbach's van spun out of control. The van stalled as Dallenbach tried to regain control. Appellant Christine Bottema, who was driving her car on I-694 near the on-ramp, saw Dallenbach's vehicle begin to fishtail. She braked and swerved to her right to avoid a collision. Despite both parties' efforts Christine Bottema's car struck Dallenbach's van.

The day after the accident, Christine Bottema began experiencing pain and stiffness in her neck. Approximately two weeks later, the pain became acute and she had surgery. Following her graduation from the University of Minnesota she accepted a job that paid nearly $8,000 less a year than another potential position because conditions at the higher-paying work place would put too much strain on her neck. She also had to forego an $8,000 signing bonus.

In December 2000, Christine and her husband Jon Bottema filed suit against Dallenbach. The Bottemas claimed Dallenbach was negligent in losing control of his vehicle and in his attempts to regain control, causing the accident.

The Bottemas called Polansky to testify at trial. Polansky had no specific recollections of the accident and had to rely on his report while testifying. During his testimony, Polansky opined that Dallenbach's vehicle was not on the shoulder when the collision took place as Dallenbach had claimed but was in fact in both the right and left lanes. Because Polansky's opinion was based on the parties' statements made at the time of the accident and Polansky had no independent recollection of the facts, the district court instructed the jury to disregard the portions of Polansky's testimony that attempted to reconstruct the accident.

The jury found that neither party was negligent. The jury found Christine Bottema had incurred over $100,000 in damages as a direct result of the accident but did not award any future damages. The court denied their demand for a new trial. This appeal followed.

D E C I S I O N

The Bottemas argue the district court erred by excluding portions of Polansky's testimony and deprived them of a fair trial by instructing the jury to give his testimony no more weight than any other witness's.

Absent erroneous interpretation of the law, the question of 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). Likewise, absent a showing that the district court exercised its discretion "arbitrarily, capriciously, or contrary to legal usage" a reviewing court is bound by the district court's decision. Id. at 46. An appellant must show prejudicial error when seeking a new trial based on alleged evidentiary errors. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

The Bottemas argue that the district court erred in excluding Polansky's accident reconstruction testimony. They asserted that although Minn. Stat. 169.09, subd. 13(b) (2002), prohibits an accident report from being used as evidence in a civil trial, the statute does not bar a witness from refreshing his or her memory with the report. The Bottemas are correct in their assertion that although the statute is designed to render the actual accident report privileged, "it is not intended to prohibit proof of the facts to which the report relate." Minn. Stat. 169.09, subd. 13(c).

Once proper foundation has been laid, a witness may use a report, not otherwise admissible, to refresh his or her memory. State v. Sletta, 279 Minn. 484, 485, 155 N.W.2d 392, 393 (1967). Minn. Stat. 169.09 does not bar police officers from testifying about information obtained from their own observation. Ackerman v. Theis, 281 Minn. 82, 85, 160 N.W.2d 583, 584 (1968). Officers may even quote from a report if their testimony is based on an independent recollection of the incident. State v. Schultz, 392 N.W.2d 305, 307 (Minn. App. 1986).

But in this case, Polansky's testimony is not based on an independent recollection. According to his testimony, Polansky investigates at least 120 accidents a year and the accident here occurred over three years prior to trial.

Polansky did not witness the accident. The accident reconstruction testimony was based solely on his conversations with the parties, of which he had no independent recollection. Polansky had no independent recollection of the accident or the investigation. His reconstruction testimony was based entirely on the statutorily protected material contained in his report and the parties' statements. We conclude that the district court did not err in excluding his testimony.

The Bottemas' claim that they were not given an opportunity to rehabilitate Polansky is not in accord with the facts. Prior to Polansky's testimony Dallenbach's counsel argued that Polansky's testimony would not be supported by adequate foundation. The Bottemas' counsel could have attempted to examine this issue during direct examination or attempted to rehabilitate Polansky during any of the three re-direct examinations. Given these facts the Bottemas' argument that they did not have an opportunity to more fully develop Polansky's testimony fails.

The Bottemas also claim that they were deprived a fair trial by the district court's instruction to the jury not to consider Polansky's reconstruction testimony. This argument is without merit. The district courts are given "considerable latitude" in selecting jury instructions language. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (quotation omitted). Absent an abuse of that discretion, the appellate courts will not reverse. Id. If the instructions fairly and accurately state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metro. Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). When a jury has been exposed to inadmissible testimony, the proper remedy is for the district court to provide the jury with a curative instruction. Oltmans v. Orthopaedic and Fracture Clinic, 278 N.W.2d 538, 540 (Minn. 1979).

Here, the jury received inadmissible evidence that had a potential to influence the outcome of the case. The district court told the jury to disregard only those portions of Polansky's testimony that were based on the inadmissible evidence. We assume the jury followed the court's instructions. Thus, we hold that the district court did not abuse its discretion by this instruction.

The Bottemas next argue the district court erred in denying their motion for a new trial because the evidence proved that Dallenbach was at least partially negligent. A jury's answer to a special-verdict question can only be set aside if no reasonable mind reach the same conclusion as the jury. Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn. 1997). On review, an appellate court will not set aside answers to special-verdict questions unless the answers are "perverse and palpably contrary to the evidence or where the evidence is so clear to leave no room for differences among reasonable people." Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb 12, 1993). If examination of the evidence in the light most favorable to the verdict reveals that the verdict is reconcilable to any theory of recovery the verdict will not be disturbed. Id.

The fact that there was an accident does not necessarily mean anyone was negligent. See Siegler v. Conner, 396 N.W.2d 612, 616 (Minn. App. 1986) (holding that, even though the defendant veered into oncoming traffic causing a two-car accident, evidence the defendant was not speeding, visibility was poor, another driver forced the defendant into a pile of slush that caused the defendant to lose control of his vehicle and both drivers had used reasonable care to avoid the accident supported the jury's finding that neither party was negligent). When a jury returns a verdict of no negligence, it simply means that a party did not sustain its burden of proof. Peterson v. Minneapolis Star Tribune Co., 282 Minn. 264, 270-71, 164 N.W.2d 621, 626 (1969).

Evidence produced at trial shows that on the day of the accident there were icy patches on the interstate. Further, Dallenbach testified that when it was his turn to enter the interstate, he prudently matched his speed to the oncoming traffic, signaled his intention to change lanes, and carefully attempted to merge. He testified that he hit a spot of ice, and despite his best efforts, lost control of his vehicle. Finally, Dallenbach testified that following the accident he noticed other vehicles fishtailing in the same area. Although other evidence contradicts Dallenbach's testimony, based on this record we cannot say the jury's verdict was unreasonable.

The Bottemas further contend that a new trial is necessary because the jury's finding on damages can only be characterized as perverse. A district court's decision to deny a new trial motion is within its sound discretion and will not be disturbed on appeal absent a clear abuse of that discretion. Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 790 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001). When a new trial is sought on the grounds that the evidence does not justify the damage award, the verdict will stand "unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict." Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quotation omitted). In addressing this issue, we ask "whether the jury award of damages is so inadequate or excessive that * * * it could only have been rendered on account of passion or prejudice." Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn. 1987) (omission in original) (quotation omitted).

The rule is that where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict perverse.

 

Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973) (quotation omitted). A jury's damage award is not inadequate as a matter of law unless there is enough evidence to impugn the motivation of the jury. Markowitz v. Ness, 413 N.W.2d 843, 846 (Minn. App. 1987).

Here, the Bottemas claim that because the jury awarded the substantial sum of $109,917 in future damages, yet failed to award anything for future pain and suffering, emotional distress, or lost income, the award is perverse and a new trial is required. A jury's decision to award damages is given considerable deference. Even when the parties stipulate to the amount of damages, a jury's award of a lesser amount is not inadequate as a matter of law. Flanagan, 404 N.W.2d at 800. For example, the supreme court recently held that where the jury was presented with conflicting evidence on the severity of the appellant's injuries, the jury's decision to award future medical expenses but not damages for future pain and suffering did not merit a new trial. Raze, 587 N.W.2d at 648-49. We cannot say on the record before us that that jury's finding on future damages was "manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict." Id.

Affirmed.