This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Kevin Kelly,
as Trustee for the heirs and next-of-kin
of Kelly Ann Kelly, et al.,


Jason Ellefson,

Steven Eidemiller,

Supreme Transport Services, L.L.C., et al.,


Lido Café, Inc., d/b/a Lido’s Italian Market Café & Bar,



Filed March 8, 2005

Reversed and remanded

Stoneburner, Judge


Ramsey County District Court

File No. C8029047


Eric Magnuson, Patrick J. Sauter, Stephen P. Watters, Paula Duggan Vraa, Rider Bennett, L.L.P., Suite 4900, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Kelly)


Emilio R. Giuliani, Vincent I. Breza, La Bore, Giuliani, Cosgriff & Viltoft, Ltd., Box 70, 10285 Yellow Circle Drive, Hopkins, MN 55343 (for respondents Ellefson, et al.)


Katherine L. MacKinnon, Attorney at Law, 3744 Huntington Avenue, St. Louis Park, MN 55416; and


James F. Roegge, Katherine A. McBride, Meagher & Geer, P.L.L.P., Suite 4200, 33 South Sixth Street, Minneapolis, MN 55402 (for appellants)

            Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N




            Supreme Transport Services, L.L.C.; David White; Diana White; and D.L. Enterprises, Inc. appeal denial of their motion for a new trial arguing that the district court abused its discretion in making evidentiary rulings, provided the jury with fundamentally erroneous jury instructions, and failed to include a settling defendant’s fault on the special-verdict form.  Because the district court committed reversible error by failing to instruct the jury on all applicable bases of fault and eliminating a settling party from the special-verdict form, we reverse and remand for a new trial.



            A group of friends and co-workers who had been drinking at Lido’s Café decided to go to another bar.  Respondent Jason Ellefson drove his pickup truck with decedent Kelly Ann Kelly in the front passenger seat, Katherine Martinson seated behind Ellefson, and Ellefson’s brother seated behind Kelly Ann Kelly.  Defendant Steve Eidemiller drove his SUV, and co-worker Erica Eastep followed Eidemiller in her car.  The three cars proceeded west on County Road C in Roseville.  County Road C is a four-lane road.  At the intersection of Fairview and County Road C, Ellefson, in the outside west-bound lane, pulled his pickup parallel to Eidemiller’s SUV which was stopped at the light in the inside west-bound lane.  There was conflicting testimony about whether Ellefson and Eidemiller exchanged gestures while stopped at the light, but when the light turned green both cars accelerated quickly to speeds over the 45-mile-per-hour speed limit.  Eventually, Ellefson pulled ahead of Eidemiller.  Ellefson and Eidemiller denied that they were racing, but Martinson testified that she believed they were racing.

            As Ellefson was looking over his left shoulder in preparation for moving into the inside lane ahead of Eidemiller, appellant David White,[1] driving a semi-tractor trailer for appellant Supreme Transport Services, L.L.C., pulled out of a parking lot and turned west onto County Road C ahead of the Eidemiller and Ellefson vehicles.  Eidemiller saw that the semi was blocking the westbound lanes, applied his brakes, and easily came to a stop.  Ellefson’s passengers saw the semi before Ellefson did and screamed.  Ellefson applied his brakes, skidded, leaving 84.5 feet of skid marks, and struck the side of the semi-tractor, killing Kelly Ann Kelly.  Approximately two hours after the accident, Ellefson’s blood-alcohol concentration was .12.

            Respondent Kevin Kelly, as trustee for the heirs and next-of-kin of Kelly Ann Kelly, sued Ellefson, Eidemiller, and appellants, alleging that all of the drivers were at fault in causing Kelly Ann Kelly’s death.  Kelly amended the complaint to add a dram-shop claim against Lido Café, Inc., asserting that Lido’s served Ellefson alcohol when he was obviously intoxicated.  Appellants cross-claimed against Ellefson, Eidemiller, and Lido Café, Inc.

After the close of discovery, and only 15 days prior to trial, Kelly advised appellants of his intent to use a previously undisclosed videotaped re-enactment, diagram, and computer animation at trial.  Eleven days prior to trial, appellants were shown the diagram and a tape of the re-enactment.  Appellants first saw the animation on the morning of the first day of trial.

            Appellants moved in limine to exclude Kelly’s accident-reconstructionist’s testimony, the re-enactment, and the animation.  Appellants, who had twice moved to compel Kelly to provide more complete answers to discovery requests, argued that the disclosure of only Kelly’s expert’s conclusory opinions was insufficient, and the visual exhibits were untimely produced, confusing, and misleading.  The court explicitly denied appellants’ motion to exclude the diagram, re-enactment, and animation and implicitly denied appellants’ motion to exclude the expert’s testimony.

            Defendant Lido Café, Inc. settled with Kelly under a Pierrenger release just prior to trial.  Appellants then sought to keep Lido’s in the lawsuit based on their cross-claim, arguing that Kelly’s complaint and answers to interrogatories constituted admissions by Kelly that Lido’s had served Ellefson alcohol when he was obviously intoxicated.  Appellants also asserted that, based on Ellefson’s post-accident alcohol level, appellants’ expert toxicologist would testify that Ellefson was obviously intoxicated when he was served at Lido’s.  Lido’s and Kelly objected.  The district court concluded that the obviousness of Ellefson’s intoxication was no longer relevant and granted Kelly’s motion to exclude all reference to Ellefson’s alleged obvious intoxication and to remove Lido’s from the special-verdict form. 

            The district court also granted Kelly’s motion to exclude the testimony of a state trooper accident-reconstructionist.  And the district court excluded a diagram produced by the state trooper accident-reconstructionist, concluding that it was an inadmissible police report.

            Appellants requested special jury instructions on racing, driving while impaired, forfeiture of right-of-way, and speeding.  The district court declined to give any of these requested instructions.

            The jury found Ellefson 40%, appellants 60%, Eidemiller 0%, and Kelly Ann Kelly 0% at fault.  Damages, after reduction for no-fault benefits, were $2,690,820.79.  Appellants moved for a new trial on liability.  The district court denied the motion, and this appeal followed.



Because the district court has the discretion to grant a new trial, we 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).  Errors during a trial are not grounds for granting a new trial unless the error affects the “substantial rights of the parties.”  Minn. R. Civ. P. 61. 

I.          Jury instructions

            A district court has broad discretion in selecting jury instructions.  State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990).  Errors in instructions do not warrant a new trial unless they destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice.  D. H. Blattner & Sons, Inc. v. Firemen’s Ins. Co. of Newark, 535 N.W.2d 671, 675 (Minn. App. 1995), review denied (Minn. Oct. 18, 1995).  A new trial should be granted when an issue was submitted to the jury on an erroneous instruction unless the jury’s determination appears correct as a matter of law.  Kirsebom v. Connelly, 486 N.W.2d 172, 174 (Minn. App. 1992).        

            The supreme court has held that it is reversible error to fail to give an instruction on a party’s statutory duty, even when the party’s negligence for breaching a separate duty has been conceded or determined by the court as a matter of law.  This is so because violation of a “separate, independent duty” is a proper item for the jury to consider in evaluating the comparative fault of the parties.  Line v. Nourie, 298 Minn. 269, 275, 215 N.W.2d 52, 56 (Minn. 1974) (finding reversible error in trial court’s failure to give instruction on duty of pedestrian to maintain proper lookout, even though jury was instructed that pedestrian was negligent as a matter of law for walking on wrong side of road); Butler v. Engel, 243 Minn. 317, 340, 68 N.W.2d 226, 240 (1954) (holding that in case where defendant’s speed is unlawful, defendant forfeits whatever right of way he may have had, and failure to instruct on forfeiture of right of way lets jury consider a defendant’s contributory fault with the impression that defendant possessed statutory right-of-way notwithstanding speed, constituting error of fundamental law).  Line holds that the jury should be allowed to consider all items of a party’s fault in determining the degree of that party’s fault, and failure to so instruct the jury constitutes reversible error requiring a new trial.  298 Minn. at 273, 215 N.W.2dat 56.

            In this case, the jury was instructed that “a driver of a vehicle about to enter or cross a roadway from any place other than a roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.”  But the jury was not instructed that when the speed of a driver is unlawful, he forfeits whatever right-of-way he may have had.  Minn. Stat. § 169.20, subd. 1(d) (2004).[2]  The instructions gave the

erroneous impression that Ellefson had the right-of-way.[3]  Ellefson’s forfeiture of the right-of-way, because he was admittedly speeding, was a separate item that should have been included in the jury instructions in order to allow the jury to properly assess the comparative fault of all of the parties.

            For the same reason that failure to instruct on forfeiture-of-right of way constitutes a fundamental error of law requiring a new trial, we conclude that the district court’s failure to instruct on DWI and racing also constituted fundamental errors of law.  The

jury was instructed that “if a person was intoxicated, that does not necessarily prove he was negligent” and was not instructed, as requested by appellants, that driving under the influence of alcohol or with an alcohol concentration of .10 or more is a crime under Minn. Stat. § 169A.20, subd. 1(5) (2002).[4]  This court has held that evidence of a violation of the DWI statute constitutes prima facie evidence of negligence and that a jury should be instructed on the DWI statute in order to permit the jury to consider whether a party was negligent in violating the statute.  Kirsebom,486 N.W.2d at 175.  Failure to instruct the jury on DWI deprived the jury of consideration of another potential item of Ellefson’s negligence and causation that may have affected the jury’s determination of comparative fault.  Likewise, although the jury was asked to determine if Ellefson and Eidemiller were racing and, if so, whether racing in any way caused the accident, the jury was not instructed that racing on a roadway constitutes negligence as a matter of law.  Jones v. Peterson, 279 Minn. 241, 248, 156 N.W.2d 733, 737 (1968).

A party is entitled to an instruction setting forth his theory of the case if there is evidence to support it and if it is in accordance with applicable law.  Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81, 220 N.W.2d 281, 286 (1974).  In this case, there was evidence to support each of appellants’ requested instructions.  “[T]he instructions should be construed as a whole, having in mind the evidence in the case.  If the instructions . . . convey to the jury a clear and correct understanding of the law, they must be upheld.”  Id. at 81-82, 220 N.W.2d at 286.  The instructions given in this case permitted the jury to consider comparative fault through a set of instructions that focused only on some of the applicable traffic laws without informing the jury of other relevant traffic statutes establishing duties of the respondents.  Without knowledge of all items of fault, the jury could not properly assess comparative fault.  The district court’s failure to give the requested instructions entitles appellants to a new trial on liability.

II.        Evidentiary rulings

a.         Kelly’s admissions


            Absent erroneous interpretation of the law, the admission or exclusion of evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co.,567 N.W.2d 42, 45-46 (Minn. 1997).  After Kelly settled with Lido’s, the district court concluded that whether Ellefson was obviously intoxicated when he was served at Lido’s was no longer at issue.  The district court precluded appellants from introducing Kelly’s pleadings, interrogatory answers, and expert’s affidavit as admissions adopted by Kelly that Ellefson’s intoxication prior to the accident was obvious.  As a result, although the jury was instructed that “[a] person has a duty not to become a passenger and she can be negligent in choosing to ride with an intoxicated person if that person knows or has reason to know that the driver is intoxicated or under the influence of alcohol,” appellant was not allowed to submit evidence that the obviousness of Ellefson’s intoxication was admitted by Kelly Ann Kelly’s representatives.  Pleadings are admissible as party admissions.  See Minn. R. Evid. 801(d)(2) (defining party admissions and categorizing them as non-hearsay); Carlson v. Fredsall, 228 Minn. 461, 472, 37 N.W.2d 744, 751 (1949) (holding that amended or superceded pleadings are admissible as admissions against the party interposing them).  The pleadings, interrogatory answers, and Kelly’s expert’s affidavit, which were submitted to the district court as admissible evidence in opposition to Lido’s summary-judgment motion, demonstrate that Kelly adopted the position that Ellefson was obviously intoxicated prior to leaving Lido’s.  The admissions are evidence of Kelly Ann Kelly’s fault in choosing to be Ellefson’s passenger.  There is no requirement that an admission be made on personal knowledge.  See Minn. R. Evid. 801(d)(2) 1989 comm. cmt. (stating that “[t]he requirements of trustworthiness, firsthand knowledge, or rules against opinion . . . do not apply when dealing with party admissions. . . . [T]he rationale for their admissibility is based more on the nature of the adversary system than in principles of trustworthiness or necessity. . . .”)  We conclude that the district court erred by failing to allow appellants to introduce these admissions.  Because this evidence related directly to the decedent’s fault, appellants were prejudiced by the omission.

b.                  Evidence of Lido’s fault and exclusion of Lido’s from special verdict form


The district court excluded Lido’s from the special-verdict form, precluding the jury from considering Lido’s fault.  On appeal, respondents concede that when a party settles on a Pierrenger basis, the district court should submit the fault of the settling party to the jury if there is evidence of conduct that, if believed by the jury, would constitute negligence or fault on the part of that party.  Frey v. Snelgrove, 269 N.W.2d 918, 923 (Minn. 1978).  A district court is required to include the negligence of a person not party to the lawsuit if there is sufficient evidence of such negligence.  Radel v. Bloom Lake Farms, 553 N.W.2d 109, 112 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  Respondents argue that appellants failed to produce evidence sufficient to keep Lido’s on the special-verdict form.  But we conclude that the district court abused its discretion by excluding evidence offered by appellants that would have been sufficient to keep Lido’s on the special-verdict form.

The district court prevented appellants from eliciting testimony from their expert toxicologist, Van Berkom, that Ellefson would have had to consume 12-14 beers, many more than he admitted to consuming, in order to reach an alcohol concentration of .12 at the time he was tested, and that his intoxication would have been obvious while he was being served at Lido’s.  At trial, respondents convinced the district court that after Lido’s had settled, the obviousness of Ellefson’s intoxication was no longer relevant to the case.  But the issue of the obviousness of Ellefson’s intoxication remained relevant with regard to Kelly Ann Kelly’s and Lido’s fault, and the district court abused its discretion by excluding this evidence.

Respondents also argued to the district court that Van Berkom should be precluded from stating these opinions because they had not been specifically disclosed.  The record does not reflect that the district court excluded Van Berkom’s testimony on the basis of nondisclosure.  All parties were aware of Kelly’s claim of Ellefson’s obvious intoxication.  And Van Berkom’s disclosed opinions were sufficient to allow the district court to exercise its discretion to allow inquiry into the number of alcoholic drinks necessary for Ellefson to reach .12 at the time of testing and whether his “significant impairment” would have been obvious while he was at Lido’s. 

The record demonstrates that the district court exercised its discretion broadly to allow Kelly’s expert to testify extensively about matters not specifically disclosed prior to trial.  Given the wide latitude the district court afforded to Kelly’s expert, excluding Von Berkom’s testimony on these issues for nondisclosure, would have been arbitrary and an abuse of discretion.  See Kroning, 567 N.W.2d at 46 (stating that in determining whether there was an abuse of discretion, appellate court looks to whether there is “some indication that the trial court exercised its discretion arbitrarily, capriciously, or contrary to legal usage. . . ”). 

We conclude that the district court erred in excluding Van Berkom’s opinion on the number of drinks Ellefson must have consumed and the obviousness of Ellefson’s intoxication when he was served at Lido’s.  And because this testimony would have been sufficient to keep Lido’s on the special-verdict form, the district court committed reversible error by precluding the jury from considering Lido’s fault.

            Because we are reversing and remanding for a new trial for reasons stated above, we do not reach the issue of whether the district court abused its discretion by failing to exclude the testimony of Kelly’s expert accident-reconstructionist, the video re-enactment, and the animation as a sanction for Kelly’s violation of discovery rules.  But because some of the remaining issues raised by appellants may be significant in a new trial, we address them briefly.

            c.         Admission of animation

            We reject appellants’ assertion that State v. Stewart, 643 N.W.2d 281 (Minn. 2002), requires this court to find reversible error as a matter of law when a district court fails to give a cautionary instruction relating to an animation before playing the animation for the jury and in final instructions, even when such an instruction is not requested.  Stewart states that the district court, in a criminal case, “should issue” such instructions, but does not hold that a failure to give the instructions sua sponte constitutes reversible error as a matter of law.  643 N.W.2d at 296.  Whether failure to give a particular instruction creates prejudicial error is a determination made on a case-by-case basis. 

            In Stewart, the supreme court stated that “[b]ecause of its dramatic power, proposed animations must be carefully scrutinized for proper foundation, relevancy, accuracy, and the potential for undue prejudice.”  Id.  In this case, the animation was not consistent with Eidemiller’s testimony on the manner in which he braked to avoid the collision.  The animation showed Eidemiller performing nearly full-capacity braking, when no evidence supported that he applied his brakes in the manner depicted.  The animation also showed the Eidemiller and Ellefson vehicles accelerating gradually from the stop light and driving at a constant speed, but their testimony was that they accelerated rapidly from the stoplight.  In addition, a change in viewpoint within the animation made it appear that the semi-truck was not visible to Eidemiller or Ellefson until immediately prior to the collision.  The viewpoint change is misleading when compared with eyewitness testimony that the truck was visible well before impact. 

            These inaccuracies, coupled with the facts that the animation was not disclosed until the morning of the first day of trial and it was shown to the jury with no cautionary instructions, lead us to conclude that the district court abused its discretion by allowing the animation be played to the jury.  Because of the powerful impact of this type of visual aid, we conclude that admission of the animation prejudiced appellants. 

            d.         Admission of the video re-enactment

            At trial, Kelly introduced a videotaped re-enactment that was filmed during heavy rain, purporting to show sightlines and visibility.  It is undisputed that there was no rain on the night of the accident and conditions were clear.  To be admissible, re-enactments must be conducted under substantially similar conditions to be shown.  State v. Johnson, 291 Minn. 407, 413, 192 N.W.2d 87, 91 (1971); Johnson v. Engen, 386 N.W.2d 269, 271 (Minn. App. 1986).  A significant issue in this case was who could see what and when they could see it.  The rain-slicked roads on the night of the reenactment created reflections of the oncoming headlights, which heightened the visibility of the oncoming vehicles.  The videotape did not accurately portray conditions as they existed at the time of the accident.  Because of the powerful impact of this type of visual aid, we conclude that the district court abused its discretion by admitting the re-enactment and that its admission prejudiced appellants.


            e.         Exclusion of state trooper accident-reconstructionist’s testimony and diagram.


            The record does not clearly reflect the district court’s basis for excluding the testimony of the state trooper accident-reconstructionist, the only neutral expert to have examined the scene of the accident.  There is a statement on the record by appellants’ counsel indicating that the district court precluded the testimony as cumulative, and the district court did not disagree with this statement.  Rulings on cumulativeness will be reversed only if discretion was clearly abused.  Barna v. Comm’r of Pub. Safety, 508 N.W.2d 220, 221 (Minn. App. 1993).  Exclusion for cumulativeness requires a balancing test in which the probative value of the evidence is considered against the risk of admitting it.  State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992); State v. Buchanan, 431, N.W.2d 542, 551 (Minn. 1988).  There is no indication in the record that the district court conducted such a balancing test.

            Because the state trooper was not retained by either party and because his opinions were not identical to the opinions of the parties’ experts, we conclude that the district court erred by excluding his entire testimony as cumulative.  This witness was prepared to offer the opinion that White did not violate any traffic laws in the manner in which he turned onto the roadway.  Exclusion of this testimony was obviously prejudicial to appellants.  The district court also erred by concluding that Minn. Stat. § 169.09, subd. 13(b)-(c) (2002), precluded admission of the diagram prepared by the state trooper.[5]  The supreme court has held that this statute does not bar police officers from testifying about information obtained from their own observations.  Ackerman v. Theis, 281 Minn. 82, 85, 160 N.W.2d 583, 584 (1968).  The diagram reflected the trooper’s personal knowledge and observations, and therefore its admission was not precluded by Minn. Stat. § 169.09. 

            Reversed and remanded.

[1] Appellant Diana White is David White’s team driver, and they do business as D.L. Enterprises, Inc., which is also an appellant.

[2] Although the trial of this case occurred in 2003, we cite the current version of the relevant statutes in this opinion for ease of reference.

[3] Kelly argues that, because of its location in the right-of-way statute, the language on right-of-way forfeiture does not apply to a speeding vehicle meeting a vehicle entering a roadway from a private driveway.  This argument was explicitly rejected in Bermel v. Auge, 574 N.W.2d 460, 462 (Minn. App 1998) (holding that forfeiture provision of Minn. Stat. § 169.20 subd. 1, applies to situation where speeding driver on through roadway meets another driver entering roadway from private driveway).

[4] The 2002 version of this statute was in effect at the time of trial.  The statute has since been amended to provide that driving with an alcohol concentration of 0.08 or more is a crime.  See 2004 Minn. Laws, ch. 283, § 3.  The amendment takes effect on August 1, 2005.  2004 Minn. Laws, ch. 283, § 15.

[5] The diagram at issue in this case was a separate rendering prepared as part of the accident-reconstruction report and is not the diagram contained in the official accident report.