This opinion will be unpublished and

may not be cited except as provided by

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








Jennifer Lee Hall, as trustee for

next-of-kin Dustin Andrew Hall,





Sara Lynn Hall,




Filed March 22, 2005


Hudson, Judge


Blue Earth County District Court

File No. C7-01-1930


Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, Minnesota 55402; and


Nick A. Frentz, Frentz & Frentz, P.O. Box 3484, Mankato, Minnesota 56002 (for appellant)


Katherine A. McBride, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, Minnesota 55402 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Jennifer Hall challenges the trial court’s denial of her motions for JNOV and a new trial, arguing that the jury’s verdict was contrary to the evidence presented at trial.  Because reasonable jurors could have concluded that respondent was not negligent based on the evidence presented at trial, we affirm.



            Appellant Jennifer Hall brought this wrongful-death action against her sister-in-law, respondent Sara Hall, who was involved in an all-terrain vehicle (ATV) accident in which appellant’s son, Dustin Hall, died.  The trial court conducted a jury trial.

            The accident occurred on August 20, 2000, while Dustin, age four at that time, and his sister Brianna, age six at that time, visited their grandparents, Clarence and Sandi Hall, at their grandparent’s house.  Respondent, who lived with her parents, Clarence and Sandi Hall, decided to take a ride on her parents’ 1996 Polaris ATV.  Brianna and Dustin announced that they wanted to ride on the ATV too.  Respondent gave Brianna a ride on the ATV, while Dustin put on his shoes.

            When respondent returned to pick up Dustin, she stopped the ATV in front of the house.  Respondent testified that she did not put the ATV in park or neutral, though she said that every other time in her life when she stopped the ATV to let someone on or off she put the ATV in either park or neutral.  Respondent testified that she was turned facing Brianna, who was behind her, for about 15 to 60 seconds.  During this time, respondent realized Dustin had climbed on the ATV because respondent heard him talking in front of her.  Respondent’s hands were off the handlebars at this time.  Respondent agreed that, for the safety of passengers, she would not want the throttle to be hit while the ATV was still in gear because the ATV could move forward.

            Respondent agreed that Dustin apparently hit the throttle that day because the ATV began to move forward.  Respondent turned around to face forward, reached for the handlebars, and attempted to control the vehicle as it traveled forward about 30 feet.  The ATV hit respondent’s vehicle, rolled, and respondent and Dustin were thrown off.  According to Sandi Hall, the ATV landed on respondent and Dustin.

            Sandi Hall, who was about three feet away from Dustin when he climbed on the ATV, testified that Dustin shifted back and forth on the ATV after climbing on because the seat was slippery against his pants.  According to Sandi Hall, Dustin reached up while he was looking at her and hit the throttle within seconds of climbing on the ATV.  Dustin had previously ridden on the ATV about 150 times with various family members according to Sandi Hall.

            At the hospital that night, respondent said to her mother, “I’m sorry this is all my fault.”  Respondent testified that there was a warning sticker on the ATV that said “no passengers.”  But the photographs of the ATV that appellant introduced into evidence did not show such a warning. 

            Deputy Kevin Spieker testified that respondent was the operator of the ATV at the time of the accident, and that as far as his investigation revealed, there was no other person besides respondent who was in control of the ATV.

            After all of the evidence was presented, appellant moved the trial court for a directed verdict on negligence, arguing that respondent had violated Minn. Stat. § 84.928, subd. 2(7) (2004), and was therefore negligent per se.  That statute provides, in relevant part, that “A person may not drive or operate an all-terrain vehicle: . . . (7) with more persons on the vehicle than it was designed for.”  Id.  The trial court denied the motion. 

            Instead, the trial court read the statute in question to the jury, instructing “If a person breaks a law, he or she is negligent.”  The parties stipulated that appellant’s medical expenses were $1,112 and that the funeral expenses were $2,257.30.  In its verdict, the jury found that respondent was not negligent and did not award any additional damages.  Appellant moved the trial court for judgment notwithstanding the verdict and, in the alternative, for a new trial.  The trial court denied appellant’s posttrial motions.  This appeal follows.[1]




            Appellant argues that the trial court erred by denying her motion for JNOV because, according to appellant, the evidence showed the respondent was negligent as a matter of law. 

Where JNOV has been denied by the trial court, on appellate review the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).  “Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.”  Id. (quotation omitted).  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

            In a negligence case, the plaintiff must prove that (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) damages were sustained from the injury.  Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).  The plaintiff must prove negligence in order to establish a breach of the duty of care.  Negligence is “a departure from a standard of conduct required by the law for the protection of others against unreasonable risk of harm.”  Siem v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981) (quoting Prosser, Contributory Negligence as a Defense to Violation of a Statute, 32 Minn. L. Rev. 105, 110 (1948)).  The standard for ordinary negligence is the standard of care that a reasonable person of ordinary prudence would exercise.  Id

“Negligence per se is a form of ordinary negligence that results from violation of a statute.”  Id.  “Negligence per se may exist when the reasonable person standard is supplanted by a standard of care established by the legislature.”  Id.  The test for determining whether violation of a statute or ordinance constitutes negligence per se is: (1) the persons harmed by the violation must be within the intended protection of the statute, and (2) the harm suffered must be of the type the legislation was intended to prevent.  Alderman’s Inc., v. Shanks, 536 N.W.2d 4, 8 (Minn. 1995).  The issue of negligence is for the jury to decide except in those cases where it clearly appears to the trial court, viewing the evidence most favorable to the adverse party, that it would have to set aside a contrary result as not justified by the evidence.  Peterson v. Pawelk, 263 N.W.2d 634, 636 (Minn. 1978); see also 4 Minnesota Practice, CIVJIG 25.45 (1999) (stating “If I read a law, it does not automatically mean that this law has been broken.  This decision is up to you.”) 

            The trial court never reached the issue of whether a violation of Minn. Stat. § 84.928, subd. 2(7) (2004) constitutes negligence per se.  The trial court concluded that whether the statute was violated was a question for the jury, and that a reasonable jury could determine that respondent did not violate this statute.  The trial court explained that in order to violate the statute, the ATV must have been operated with more persons than the vehicle was designed for.  But the trial court noted that the statute is silent as to what “operate” and “designed for” mean.  Further, the trial court noted that appellant never requested an instruction as to the definitions of these words.  The trial court determined that a reasonable jury could conclude that, at the time of the accident, respondent was not operating the ATV with more persons than it was designed for under the statute.

            Appellant argues that “there can be no debate on the fact that [respondent] was ‘an operator’ of ‘an ATV’ that had a sticker she knew limited its use to ‘no passengers.’”  Appellant argues that the injury was sustained because respondent operated the ATV contrary to the manufacturer’s instructions.  Therefore, according to appellant, “[e]ach and every jury hearing the case would have had to conclude that the statute was violated.”  Quoting Kedrowski v. Czech, 244 Minn. 111, 126, 69 N.W.2d 337, 346–47 (1955), appellant argues that this is one of those “clearest of cases, where the facts are undisputed and it is plain that all reasonable [jurors] can draw but one conclusion from them, . . . the question for determination becomes one of law for the court.”

Respondent argues that appellant failed to present any evidence establishing the number of persons the manufacturer designed this ATV to carry.  Though respondent testified that the ATV contained a sticker that read, “no passengers,” appellant failed to present testimony to establish the origin of that sticker or whether the manufacturer placed it on the vehicle.  Respondent also argues that the jury was free to disbelieve respondent.  Likewise, respondent argues that Deputy Spieker’s testimony that respondent was the “operator” is not conclusive.

            Here, there is competent evidence reasonably tending to sustain the verdict.  The trial court correctly explained that appellant did not produce expert testimony from the ATV manufacturer, operator’s manuals, or sales literature indicating the number of persons the ATV was designed to carry.  The fact that respondent testified that the ATV bore a sticker that read “no passengers” does not create an irrebutable presumption that the ATV was designed for only one person because the jury was free to disbelieve respondent’s testimony.  See Kroning v. State Farm Mut. Auto. Ins. Co., 567 N.W.2d 42, 47 (Minn. 1997) (holding that the credibility of witnesses should be left entirely to the jury).  Moreover, the photographic exhibits of the ATV do not reveal any such sticker. 

But even if the ATV bore a warning sticker, the evidence does not establish that the manufacturer placed it there, as appellant assumes.  And even if the manufacturer did place a sticker on the ATV, the trial court correctly explained that the manufacturer could have done so for reasons unrelated to the design of the ATV, such as limiting liability or bolstering sales of larger ATV models.  Moreover, a reasonable jury could have concluded that the ATV was designed for passengers by looking at the photographic exhibits of the ATV. 

            Furthermore, a reasonable jury could conclude that an idling ATV is not being “operated.”  The jury was free to disbelieve Deputy Spieker’s testimony that respondent was the operator of the ATV.  See LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn. 1977) (holding that expert witness’s opinions are not binding or conclusive on the jury, but are items of evidence to be considered along with other evidence in the case). 

Appellant failed to meet her burden of showing that respondent violated Minn. Stat. § 84.928, subd. 2(7) (2004), as a matter of law.  Appellant did not request a jury instruction on the definitions of “operate” and “designed for,” and the jury was not instructed on the meanings of these terms.  Reasonable jurors could have concluded that respondent was not operating the ATV or that the ATV was designed for passengers.  See Peterson, 263 N.W.2d at 637 (holding that whether the defendant was negligent per se for violating a statute was properly submitted to the jury when the meaning of the word “permit,” as used in the statute, was susceptible to several meanings).  Because the record contains competent evidence that reasonably tends to sustain the verdict, the trial court did not err in denying appellant’s motion for JNOV. 


            Appellant argues that the trial court erred in denying her motion for a new trial because (1) irregularities and errors of law justify a new trial on liability, and (2) an insufficient award of damages justifies a new trial on damages.

            The decision to grant or deny a new trial lies within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  On appeal from a denial of a motion for a new trial, this court views the evidence in the light most favorable to the verdict and will affirm unless the verdict is manifestly and palpably contrary to the evidence.  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

            Appellant argues that the trial court abused its discretion in denying her motion for a new trial “[f]or the same reasons that a Directed Verdict should have been granted on negligence and that a JNOV is needed now.”  We reject appellant’s argument because the trial court did not err in allowing the jury to decide whether appellant was negligent per se.  Additionally, appellant argues the jury’s award of zero compensatory damages constitutes insufficient damages because the record establishes that Dustin’s life had monetary value.  Appellant’s argument fails because the jury properly found that appellant was not negligent, thus the jury’s failure to award damages does not render the verdict null and void.  See Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973) (holding that where a jury’s determination that the defendant is not liable 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 such that a new trial is warranted). 

            Viewing the evidence in the light most favorable to the verdict, the trial court did not abuse its discretion by denying appellant’s motion for a new trial.



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

[1]Appellant’s notice of appeal stated that this appeal was taken from the order denying posttrial motions.  An order denying a new trial is appealable under Minn. R. Civ. App. P. 103.03 (d).  An order denying JNOV is not independently appealable, but it is within our scope of review on appeal from the judgment on the merits.  Weiby v. Wente, 264 N.W.2d 624, 625 n.1 (Minn. 1978).  Although the notice of appeal did not state that appellant was appealing from the December 18, 2003 judgment on the merits, the statement of the case clearly indicated that appellant was challenging the denial of JNOV.  We must construe appeal papers liberally in favor of sufficiency, if they apprise other parties of the issues to be litigated on appeal, and if clerical errors or defects could not have been misleading.  Kelly v. Kelly, 371 N.W.2d 193, 195–96 (Minn. 1985).  Because timely and proper posttrial motions were made, the time to appeal the underlying judgment had not expired.  See Minn. R. Civ. App. P. 104.01, subd. 2 (timely and proper motions for new trial or JNOV extend the time to appeal from the underlying judgment, until service by any party of notice of filing of order disposing of motions).  Because this appeal was taken within the time to appeal from the order denying a new trial and the judgment, and because the appeal papers reasonably apprised respondent that appellant was challenging the denial of JNOV, we conclude that the denial of JNOV is within our scope of review.