This opinion will be unpublished and

may not be cited except as provided by

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







Jennifer Lynn McClenahan, et al.,





Cory Donald Erickson,



Filed May 4, 2004

Affirmed in part, reversed in part

Hudson, Judge


Kandiyohi County District Court

File No. C8-02-88


Brian Wojtalewicz, Wojtalewicz Law Firm, Ltd., 139 North Miles, P.O. Box 123, Appleton, Minnesota 56208-0123 (for appellants)


Kathleen M. Loucks, Gislason & Hunter LLP, Suite 215E, 9900 Bren Road East, P.O. Box 5297, Hopkins, Minnesota 55343-2297 (for respondent)


            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


On appeal from the trial court’s denial of appellants’ motion for judgment notwithstanding the verdict (JNOV) and a new trial, appellants contend that the trial court erred by not finding respondent negligent as a matter of law and granting appellants a new trial on damages.  Because respondent was negligent as a matter of law for failing to yield the right-of-way and did not provide a valid justification for his failure to yield the right-of-way, we reverse the trial court’s decision denying appellants’ motion for JNOV.  But because the award of damages was not so inadequate as to be based on passion or prejudice, we affirm the trial court’s denial of appellants’ motion for a new trial.


On August 8, 1999, on a clear, sunny day, appellant Jonathan McClenahan was driving westbound on Highway 12 in rural Kandiyohi County.  His wife, appellant Jennifer McClenahan, and his son were passengers in the car.  Respondent Cory Erickson was driving southbound on County Road 4 and his wife was a passenger in his car.  Erickson testified that he made a complete stop at the stop sign at the intersection of Highway 12 and County Road 4.  He then looked to his left and then to his right, and at that time he did not see any vehicles approaching.  As he was looking to his right, he briefly discussed with his wife whether turning left onto the road was the correct direction.  He testified that after quickly determining that it was the correct decision, he slowly pulled out into the intersection.  Erickson then looked again to his left, and at this point a collision occurred between the Erickson vehicle and the McClenahan vehicle.  Erickson testified that there is a dip to the east of the Highway 12 and County Road 4 intersection that causes a person to momentarily lose sight of westbound traffic on Highway 12.  Jonathan McClenahan also acknowledged that there was a dip in the road.  Both parties testified that the distance from the dip to the stop sign is between 100 and 200 yards (300-600 feet). 

Jonathan McClenahan testified that as he approached the intersection, Erickson was moving very slowly but he was still rolling into the intersection, and that McClenahan was shocked that Erickson did not brake.  He testified that when he was looking at Erickson, immediately before the collision, Erickson was looking towards the right.  Erickson conceded at trial that there was no evidence of negligence on the part of Jonathan McClenahan. 

            Jennifer McClenahan was injured in the accident and suffers from severe headaches and chronic pain.  Jennifer testified that the headaches become severe enough that at times they cause her to vomit and the neck pain can travel into her upper back.  She contends that since the accident it is hard for her to complete her work, socialize with others, and participate in the activities she previously enjoyed.

            The case was tried to a jury on March 11 and 12, 2003.  The jury returned a special verdict on March 12, 2003, concluding that respondent Erickson was not negligent at the time of the accident and that appellant Jennifer McClenahan did not sustain permanent disfigurement as a result of the accident.  The jury awarded $8,500 for past pain, disability, and emotional distress; $5,535 for past treatment expenses; $5,200 for past diagnostic expenses; $3,000 to John McClenahan for past loss of his wife’s services and companionship; nothing for future loss of companionship; and nothing for Jennifer McClenahan’s future pain, disability and emotional distress.  Appellants moved the trial court for judgment notwithstanding the verdict (JNOV) and a new trial.  The trial court denied the motion, concluding that there was sufficient evidence for the jury to decide for Erickson.  This appeal follows.



This court reviews the denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Where the trial court has denied JNOV, on appellate review the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Id. (quotation omitted).  This court will not set the verdict aside unless the evidence is practically conclusive against the verdict.  Id.  “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.”  Id.

            The violation of a traffic regulation is prima facie evidence of negligence.  Minn. Stat. § 169.96(b) (2002).  Once the plaintiff has established a traffic violation, the burden shifts to the violator to present evidence of an excuse or justification for the violation.  Marshall v. Galvez, 480 N.W.2d 358, 361 (Minn. App. 1992).  But if the violator presents evidence of an excuse or a justification, the question of whether the violation constitutes negligence is for the jury to decide.  Gertken v. Farmers Elevator of Kensington, Minn., Inc., 411 N.W.2d 550, 554 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).  It is only when the violator offers nothing that could serve as an excuse or a justification that “the court should hold the violator negligent as a matter of law.”  Riley v. Lake, 295 Minn. 43, 53, 203 N.W.2d 331, 338 (1972).

            Erickson admits that he failed to yield the right-of-way in violation of Minn. Stat. § 169.20 (2002).  But Erickson raised an excuse for his failure to yield the right-of-way, contending that there was a dip in the road that impaired his vision.  McClenahan contends that the dip in the road does not excuse Erickson’s failure to yield the right-of-way because appellant had ample distance after the dip to see the McClenahan car and yield the right-of-way.

In Riley,the Minnesota Supreme Court acknowledged that whether the defendant has overcome the prima facie case for a violation of a traffic law is generally for the jury, and only in cases where the evidence permits just one inference is it permissible for the court to find the defendant negligent as a matter of law.  295 Minn. at 52, 203 N.W.2d at 337.  The general rule is “if there is no credible evidence to excuse a failure to comply with a statutory rule of the road, the prima facie case established by evidence of that failure has not been overcome.”  Id. at 54, 203 N.W.2d at 338. 

It is the duty of the person who is required to yield the right-of-way to keep a proper lookout for traffic coming from the right.  Seeger v. Dalton, 285 Minn. 220, 222-23, 172 N.W.2d 563, 565 (Minn. 1969).  But “[m]aking an observation at a time, place and speed that does not permit the driver to stop and yield the right-of-way is as hazardous as making no observation at all.”  Id. at 223, 172 N.W.2d at 565.

            Here, reviewing the record in the light most favorable to Erickson, we are persuaded that the evidence presented at trial only supports a single inference:  that Erickson failed as a matter of law to yield the right-of-way without a valid justification.  While Erickson argues that the dip in the road impaired his vision, the trial record does not support his argument.  At trial, it was undisputed that the dip was at least 300 feet from the stop sign, and it may have been possibly up to 600 feet from the stop sign.  Further, on the day of the accident the weather was clear and did not impair Erickson’s vision.  While Erickson testified that he looked both ways before turning left, it is clear he had a conversation with his wife prior to turning and that he failed to look back to the left after this conversation.  Thus, because Erickson had a clear view of at least 300 feet after the dip, there were no inclement weather conditions impairing Erickson’s vision, and he failed to look back to his left before turning out into the road, the evidence is so conclusive that it can only support the inference that Erickson failed to yield the right-of-way without a valid justification.  Accordingly, Erickson was negligent as a matter of law, and we reverse the trial court’s denial of the McClenahans’ motion for JNOV.

New Trial

The district court has the discretion to grant a new trial and this court will not disturb the decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  The verdict must stand unless it is “manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).  Generally, a new trial on damages will be ordered only when the verdict is so inadequate or excessive that it could only have been rendered out of passion or prejudice.  Seim v. Garavalia,306 N.W.2d 806, 813 (Minn. 1981). 

The McClenahans argue that a jury that finds no negligence on the facts of this case cannot be trusted in its damages award and contend that the jury’s award was arbitrary and against logic.  To support this contention the McClenahans point to the jury’s award of $5,535 for Jennifer McClenahan’s past treatment expenses, when her actual expenses totaled $13,535.  Further, the McClenahans argue that the jury’s award to Jonathan McClenahan of $3,000 for loss of consortium, when he asked that the jury award all of the damages to his wife, proves that the award was arbitrary. 

Here, the jury awarded the McClenahans $8,500 for past pain, disability, and emotional distress, $5,535 for past treatment expenses, $5,200 for past diagnostic expenses, and $3,000 for past loss of consortium; a damage award amounting to $22,235.  Although it is not clear how the jury arrived at some of the amounts making up the award of damages, we are not persuaded that the award was so inadequate that it could only be based on passion or prejudice.  Thus, we conclude the trial court did not abuse its broad discretion by denying the McClenahans’ motion for new trial on damages. 

Affirmed in part, reversed in part.

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