This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Lynne Virginia Kraemer,
Marlene M. Carlson-Bakeberg,
Filed April 26, 2005
Reversed and remanded
Mille Lacs County District Court
File No. C2-02-431
Bruce W. Larson, Charles A.
Terrence R. Peterson,
Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
Defendant appeals from the district court’s grant of JNOV for the plaintiff in an automobile negligence action, arguing that the JNOV hearing was untimely and that the JNOV was an abuse of discretion because evidence exists to support the verdict. Because we conclude that the jury verdict was consistent and that a reasonable basis exists for the verdict, we reverse the district court’s grant of JNOV and remand for reinstatement of the jury verdict.
This dispute arises from an automobile accident involving three vehicles. The parties do not dispute that an accident occurred. A deer ran onto the road and was killed when it collided with Thomas Preusser’s moving vehicle. Preusser pulled over onto the road’s shoulder. The deer carcass remained on the road. Respondent Lynne Kraemer, who observed the collision, moved her vehicle in order to avoid hitting the deer and, while still moving, was struck from behind by appellant Marlene Carlson-Bakeberg.
At trial, the parties disputed the exact circumstances of the accident and presented conflicting testimony. Kraemer testified that she was driving in the left lane, saw the deer, slowed down and moved toward the left shoulder when she was struck. Carlson-Bakeberg testified that Kraemer was driving in the right lane, that Kraemer swerved into the left lane immediately in front of her, and that she hit Kraemer despite applying the brakes as quickly as she could. In support of her version of events, Kraemer points to expert testimony that the damage to her vehicle was inconsistent with Carlson-Bakeberg’s version. Carlson-Bakeberg, in support of her position, points to Preusser’s testimony that he saw Kraemer “in the right lane swerve into the left lane,” and to Kraemer’s statement to a police officer on the day of the accident in which Kraemer said that she was “in the right lane and swerved left to miss the deer.”
Kraemer filed suit against both Preusser and Carlson-Bakeberg. The district court granted summary judgment in favor of Preusser, finding him not negligent as a matter of law. After the parties stipulated to damages of $50,000, the case proceeded to trial, and, at its close, the district court included in its instructions to the jury that “[i]f there was an emergency that a person did not cause, that person is not negligent.” The jury returned a special verdict on December 8, 2003, finding that Carlson-Bakeberg was negligent, but did not cause the accident. It also found that Kraemer was not negligent and not the cause of the accident. The court entered its judgment, consistent with the verdict, on December 30, 2003.
Kramer filed a motion for judgment notwithstanding the verdict (JNOV) on December 16, 2003. Her attorney, through his assistant, contacted the court administration to schedule the hearing and was advised that the judge was unavailable because he had to hear two murder trials and planned to leave on vacation immediately thereafter. The assistant emphasized that the client needed a hearing date within the 60-day window imposed by R. Civ. P. 59.03, but finally acquiesced to a hearing on March 5, 2004. At oral arguments on the motion, Carlson-Bakeberg argued that the court should dismiss the motion because the hearing was untimely. The district court judge noted that he was not aware of the motion until two days before oral arguments, but that he recalled that he was unavailable for a period of time because of his vacation and trial schedule. After refusing to dismiss the motion, the district court granted JNOV because it concluded that the special-verdict answers were inconsistent. Carlson-Bakeberg appeals the district court’s entry of judgment against her based on its grant of the JNOV motion.
D E C I S I O N
interpret the rules of civil procedure de novo.
Mingen v. Mingen, 679 N.W.2d 724, 727 (
Although the parties properly raise the issue of the hearing’s timeliness, they have focused on whether the court extended the hearing for good cause. But the truly dispositive concern for this issue is the absence of the notice required to start the clock running. Neither party served any notice of the entry of the judgment; only the court served notice on December 30, 2003. The only arguable notice of the order is Kraemer’s notice of motion and motion for JNOV. While a posttrial motion can act as notice of the decision’s filing, Kraemer’s motion did not provide notice because Kraemer filed it before the entry of the order. The special verdict occurred on December 8, 2003; Kraemer moved for JNOV on December 16, 2003; and the court entered its order on December 30, 2003. The motion cannot have provided notice of an order not yet in existence. Therefore, the 60-day clock never began to run, and the district court committed no error in hearing the case on March 5, 2004.
We review de novo the district court’s grant of
JNOV. Diesen v. Hessburg, 455
N.W.2d 446, 449 (
to special verdict questions are correctly declared inconsistent, they are to
be reconciled in any reasonable manner consistent with the evidence and its
fair inferences.” Olson v.
We initially note that proving negligence does not also prove causation; negligence and causation are two separate elements of a plaintiff’s tort case. Frank v. Frank, 409 N.W.2d 70, 72 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987). The jury could therefore properly find the existence of one without finding the existence of the other.
Based on the evidence, it was within the jury’s province to find that Carlson-Bakeberg was traveling in the left lane, that Kraemer was in the right lane, and that, just before the accident, Kraemer swerved into the left lane. The jury could have reasonably concluded that, because Kraemer responded to an emergency, her act of swerving was not negligent, and because she was not negligent, the jury answered “no” to the question of whether her negligence caused the accident. Similarly, based on the evidence, the jury could have found that Carlson-Bakeberg was negligent because she was traveling at a speed that was greater than reasonable and prudent under the conditions, but that her speeding was not the cause of the accident. The testimony of Carlson-Bakeberg and Preusser, as well as the admission that Kraemer made to the police officer, supports this version of events. Although contrary evidence exists in the record, the jury had discretion to disregard it. Because this is a reasonable interpretation of the jury’s verdict, the verdict is not inconsistent, and the district court had no discretion to alter the verdict. The grant of JNOV was therefore erroneous, and we reverse and remand to the district court to reinstate the jury’s verdict.
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.