This opinion will be unpublished and

may not be cited except as provided by

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







Susan Bachand, et al.,





State Farm Automobile Insurance Company,

a foreign corporation,




Filed March 8, 2005


Halbrooks, Judge



Polk County District Court

File No. C0-02-1717



Kenneth F. Johannson, Anne M. Rasmusson, Johannson, Rust, Yon, Stock & Rasmusson, P.A., 407 North Broadway, P.O. Box 605, Crookston, MN 56716 (for appellants)


Erik J. Askegaard, Askegaard, Robinson & Schweich, P.A., 206 North 7th Street, P.O. Box 826, Brainerd, MN 56401 (for respondent)




            Considered and decided by Halbrooks, Presiding Judge, Huspeni, Judge,* and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants Susan Bachand (Bachand) and Howard Bachand challenge the district court’s denial of their motion for JNOV or, in the alternative, a new trial.  They contend that a jury verdict finding Bachand negligent and the driver not negligent in an automobile-pedestrian accident was contrary to the evidence, arguing that the driver was negligent as a matter of law because he failed to see what was in plain sight.  Appellants also argue that even though the parties stipulated that only the liability issue would be submitted to the jury, the district court erred when it did not allow appellants to introduce evidence of Bachand’s injuries.  Because the district court did not err in denying appellants’ motion, we affirm.


            Appellant Susan Bachand was employed at a retail business that is located in the middle of a block on the west side of North Broadway in Crookston.  North Broadway, which is also U.S. Highway 2 and 75, is a one-way street running generally north/south with three northbound travel lanes and parking on both sides of the street. 

            Bachand left work shortly after 5:30 p.m. on January 9, 2001.  It was dark when she left[1] and the sky was cloudy.  Road conditions were wet with some slush and snow, particularly between the lanes.  Bachand was wearing a hunter green coat and carrying a black purse and a manila folder of unknown color.   

            Because Bachand’s minivan was parked on the east side of North Broadway, she began to walk across the street toward her vehicle.  Bachand testified that before entering the street she looked south for any oncoming traffic and saw no cars closer than 2 1/2 blocks away.[2]  Bachand crossed North Broadway near the middle of the block, between two intersections without traffic lights.  There was a marked crosswalk at the intersection just to the north of where she crossed the street.  When asked at trial whether she agreed that it was safer to cross in the crosswalk, Bachand responded, “Well, I’m not going to dispute that.  Of course it’s safer.” 

            Bachand crossed the two western-most lanes without incident.  As Bachand entered the east lane, she activated her vehicle’s remote door opener.  An instant later, she was struck by a car driven by Greg Widseth.  Bachand did not notice Widseth’s car until she saw the car’s lights a moment before impact. 

            Widseth had just left work and was on his way to pick up his daughter.  He was traveling eastbound on 3rd Street and came to a stop sign at North Broadway.  Widseth testified that he checked all directions and, seeing no pedestrians or vehicles, turned left into the western-most (left) lane of North Broadway.  He acknowledged that he was aware of the fact that pedestrians sometimes crossed streets between intersections.              Widseth testified that he planned to make a right turn from North Broadway and, knowing that the two western-most lanes of the street were “left turn only” a couple of blocks to the north, he began to change lanes.  According to Widseth, after turning into the left lane of North Broadway, he “quickly checked [his] mirror, turned on [his] blinker, did a head check over [his] shoulder, [and] proceeded into the middle lane.”  He then repeated the process to move into the right lane.  After checking his blind spot the second time, Widseth stated that he turned his head back and, as he was moving into the right lane, “Ms. Bachand was right there.”  Widseth observed Bachand only “a split second” before impact and, despite immediately stepping on the brakes, he was unable to avoid hitting her.[3]  At the time of impact, Widseth’s headlights were on, and he was traveling between 10 and 20 miles per hour. 

The streetlights were illuminated at the time of the accident, but there was conflicting testimony regarding the level of lighting.  Craig Larson, who observed the “tail end” of the collision, testified that the lighting was “[l]ike it is most every other evening[,]” and that he could see objects plainly.  Likewise, William Boutwell, the first police officer on the scene, noted that the street was well-illuminated when he arrived.  But he also stated that the lights are activated by some type of timing device and that when the lights first come on “they’re real dim, kind of like dull yellow, and then they get brighter.”  Auxiliary police officer Cynthia Kucera, who was riding with Boutwell, testified that the lighting conditions were “[a]dequate.”  On the other hand, Shawn Rominski, the investigating state trooper,[4] testified that, although the streetlights were working, “it was not very good lighting,” and that he needed to use his flashlight to properly see the controls on his camera. 

Bachand settled her claim against Widseth for $100,000, the limit of Widseth’s liability insurance.  Bachand then filed an underinsured motorist (UIM) claim against respondent State Farm Automobile Insurance Company.  The parties stipulated that the case would be submitted to a jury on the issue of liability only.  Pursuant to the agreement, if the jury found that the negligence of Bachand was equal to or less than the negligence of Widseth, respondent would pay Bachand the UIM policy limit of $100,000.  

Respondent filed a motion in limine noting that it was “admitting damages” and seeking to preclude Bachand from presenting any evidence regarding her injuries and their effect on her.  The district court ruled in respondent’s favor, noting that the damages evidence was not relevant unless necessary to explain the circumstances of the accident.  At trial, Bachand made an offer of proof as to her testimony regarding damages.  Once again, the district court ruled in respondent’s favor, stating that “based upon the state of the evidence today, and given [Bachand’s] offer of proof . . . I don’t find that [Bachand’s] injuries are relevant to the issue of liability . . . and I’m not going to allow it.” 

After a three-day trial, the jury returned a special verdict finding Widseth not negligent and Bachand causally negligent.  The district court executed findings of fact, conclusions of law, and an order for judgment based on the jury’s verdict.  Bachand subsequently filed a motion for JNOV and/or amended findings of fact, conclusions of law, and order for judgment, or, in the alternative, a new trial.  The district court denied the motion.  This appeal follows.


I.          JNOV

            A district court’s decision regarding a motion for JNOV is a question of law reviewed de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Where the district court has denied a JNOV motion, this court must affirm the denial “if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Id. (quotation omitted).  We must consider the evidence in the light most favorable to the prevailing party and must not set aside the verdict “if it can be sustained on any reasonable theory of the evidence.”  Id

                        Generally, where a pedestrian is run into and injured by an automobile upon a public street or highway, the issues of the negligence of the driver and the contributory negligence of the person injured are questions of fact for the jury.  Particular facts and circumstances, conclusively shown, may make one or both issues questions of law for the court.


Saunders v. Yellow Cab Corp. of Minn., 182 Minn. 62, 64, 233 N.W. 599, 600 (1930).  But “[i]t is only in the clearest of cases where the facts are undisputed and it is plain that all reasonable [persons] can draw but one conclusion from them” that the determination of negligence becomes a question of law for the court.  Nygren v. Minneapolis St. Ry. Co., 241 Minn. 485, 492, 63 N.W.2d 560, 564 (1954).

            Under Minnesota law, a pedestrian crossing the street in the middle of a block must yield the right-of-way to vehicles using the road.

            (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or at an intersection with no marked crosswalk shall yield the right-of-way to all vehicles upon the roadway.


            . . . .


(d) Notwithstanding the other provisions of this section every driver of a vehicle shall (1) exercise due care to avoid colliding with any bicycle or pedestrian upon any roadway . . . .


Minn. Stat. § 169.21, subd. 3 (2004).  It is clear that Bachand violated this statute by failing to yield the right-of-way to Widseth.  But it is also clear that Widseth was not absolved from the duty to exercise due care merely because he had the right-of-way.  See Kachman v. Blosberg, 251 Minn. 224, 233, 87 N.W.2d 687, 695 (1958) (“The possessor of the right-of-way . . . is not thereby absolved from the duty of exercising due care for his own safety, as well as for the safety of others.”).  The question here is thus whether such due care was exercised.

Violation of a traffic regulation is not negligence per se, but only prima facie evidence of negligence.  Minn. Stat. § 169.96(b) (2004); Marshall v. Galvez, 480 N.W.2d 358, 361 (Minn. App. 1992).  “A prima facie case simply means one that prevails in the absence of evidence invalidating it.  In a jury trial, if there is such evidence, the issue is for the jury.”  Wojtowicz v. Belden, 211 Minn. 461, 465, 1 N.W.2d 409, 410-11 (1942) (citations omitted).

            Bachand suggests that Widseth was negligent as a matter of law for failing to see her as she crossed the street.  But as the supreme court has stated, “except when reasonable minds may not differ, the degree of care required, and whether it was exercised, are questions for the jury.”  Martinco v. Hastings, 265 Minn. 490, 500, 122 N.W.2d 631, 640 (1963).  Likewise, whether a driver is justified in taking his eyes off the road for a short interval is a jury issue.  Rome v. Rome, 307 Minn. 207, 209, 239 N.W.2d 232, 233 (1976); see also Lapides v. Wagenhals, 285 Minn. 403, 408, 173 N.W.2d 334, 337 (1969) (“Whether or not defendant effectively maintained a proper lookout is . . . a question for the jury.”). 

            Here, there is evidence from which the jury could reasonably find that Widseth was not negligent.  Bachand suggests that Widseth offered no excuse or justification for his failure to see Bachand.  But Widseth testified that he did not see her because “[he] was attending to the other matters of driving[.]”  Specifically, he was checking his mirror and looking over his shoulder to check his blind spot as he changed lanes immediately before striking Bachand.  It was for the jury to decide whether or not this excuse was adequate and whether Widseth thus exercised a proper degree of care.  Rome, 307 Minn. at 209, 239 N.W.2d at 233; Lapides, 285 Minn. at 408, 173 N.W.2d at 337; Martinco, 265 Minn. at 500, 122 N.W.2d at 640. 

            The evidence thus does not support Bachand’s contention that Widseth was negligent as a matter of law.  Accordingly, the district court did not err in refusing to grant Bachand’s motion for JNOV.

II.        New Trial

            Bachand next claims that the district court should have granted her motion for a new trial because (1) the verdict was not justified by the evidence and was contrary to law, and (2) the district court erred in refusing to allow Bachand to introduce evidence of her injuries.[5]  This court reviews the denial of a motion for new trial for an abuse of discretion.  Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990).

Bachand first argues that the verdict was not supported by the evidence.  On appeal from a denial of a motion for new trial, the jury’s verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in the 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).  For the reasons discussed above, the verdict was not manifestly and palpably contrary to the evidence.  Thus, the district court did not abuse its discretion in denying the motion for a new trial on this ground.

            Bachand also contends that the district court erred in refusing to allow her to admit evidence of her injuries.  Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the discretion of the district court.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted).

Because of the stipulation entered into by the parties, the only question before the jury was that of liability.  In denying Bachand’s motion for a new trial, the district court noted that “[t]he admission of evidence relating to Bachand’s injuries would be violative of Minnesota Rules of Evidence 402 and 403.”  Rule 402 provides that “[a]ll relevant evidence is admissible . . . .  Evidence which is not relevant is not admissible.”  Minn. R. Evid. 402.  Pursuant to rule 403, evidence may be excluded, even though relevant, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .”  Minn. R. Evid. 403. 

            Here, evidence of Bachand’s injuries was not relevant to the question of liability.  This does not mean that there are no situations in which such evidence might be relevant.  As the district court stated,

[e]vidence of Bachand’s closed head injury and its effects may have been relevant following Bachand’s testimony to explain the difficulty she had with her recollection of important facts and to offer a medical explanation for the inconsistencies pointed out on cross examination between her deposition testimony and trial testimony.  However, no such evidence was offered following Bachand’s testimony.


(Emphasis added.)  The record indicates that on cross-examination, respondent did highlight several inconsistencies between Bachand’s trial testimony and her deposition testimony.[6]  But there is no indication in the record that Bachand made an offer of proof regarding the introduction of medical evidence to explain these inconsistencies.[7] 

Bachand suggests that introducing evidence of the injuries would have allowed the jury to “understand why the case was being tried.”  But the jury had such an understanding without the introduction of this evidence.  Bachand testified that she was “tossed around” by the force of the accident, that she was “in terrible[,] terrible pain,” but that she remembered nothing of her trip to the hospital and very little about being there.  Both Bachand and Widseth testified at length about the events leading up to the accident. 

            Because the evidence that Bachand sought to introduce was not relevant, the district court did not err in refusing to admit it.  Further, Bachand has not demonstrated how this refusal prejudiced her.  Consequently, the district court did not err in refusing to grant a new trial on this ground.


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

[1]The sun had set at 4:54 p.m. and the end of civil twilight occurred at 5:29 p.m. 

[2] Bachand also testified that she might have looked south one more time, while she was in the western-most lane of North Broadway. 

[3] When he spoke to the investigating trooper after the accident, Widseth said that he may have been “three to five feet” from Bachand when he first saw her. 

[4] Because Widseth was the assistant city attorney, the State Patrol was called in to conduct the investigation. 

[5] In her motion, Bachand also moved for a new trial on the grounds that the district court erred (1) in failing to provide a proper jury instruction regarding Minn. Stat. § 169.60 (2004) and (2) by denying Bachand’s request that jury members be allowed to view the site of the accident at approximately the same time of day as the collision to see the lighting conditions.  These issues were not pursued on appeal and we do not consider them here.

[6]At her deposition, Bachand indicated that she had problems with short-term memory.  Bachand was then asked if there was anything about the accident that she did not remember due to her head injuries.  She responded that she did not recall things that happened “right after the accident” or for a “couple days” thereafter while she was hospitalized.  She did not suggest that she had any difficulty remembering the events leading up to the accident.

[7] Bachand did make an offer of proof regarding the introduction of medical evidence to allow “the jury to understand the severity of the injuries that [Bachand] suffered, simply to determine whether or not the force of the impact was adequate to cause those injuries.”