This opinion will be unpublished and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
Bob Makor George, as Trustee for the heirs of
Gonkartee Dekpah II, deceased,
Estate of Dennis Allen Baker, et al.,
defendants and third party plaintiffs,
CRST, Incorporated, et al.,
third party defendants
Filed December 6, 2005
Hennepin County District Court
File No. WD 02-4560
Philip K. Jacobson, Kelly & Jacobson,
Jeannie M. Provo-Petersen, Johnson & Provo-Petersen, LLP, W975 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondents Estate of Dennis Allen Baker, AJD Transportation, Incorporated, and Gabriel R. Limongelli)
Patrick D. Reilly, Erstad & Riemer, P.A., 200 Riverview Office Tower, 8009-34th Avenue South, Minneapolis, MN 55425 (for respondents CRST, Incorporated and Brian K. Losey)
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.
Appellant challenges the district court’s denial of his motion for JNOV or a new trial, arguing that the district court abused its discretion by (1) erroneously instructing the jury regarding the standard of care and decedent’s life expectancy; (2) admitting testimony of four witnesses regarding respondent’s careful driving habits and the testimony of a state statistician regarding similar accidents; (3) excluding damage evidence consisting of letters and testimony regarding telephone calls between decedent and his family, and evidence of money transfers to decedent’s family; and (4) finding that the jury’s verdict that respondent-Baker was not causally negligent was supported by the evidence. Because we conclude that the jury instructions and the admitted testimony did not constitute prejudicial error, the excluded evidence was not an abuse of discretion, and the jury’s finding of no causation was supported by the evidence, we affirm.
Appellant Bob Makor George, brother of decedent, as trustee for the heirs of decedent, brought a wrongful death action against (1) the Estate of Dennis Allen Baker, Baker’s former employer AJD Transportation, Inc., and the taxicab owner Russell Limongelli (collectively respondent-Baker); and (2) Losey and the semi-truck owner, CRST, Inc. (collectively respondent-Losey).
The accident occurred during inclement weather on northbound I-494 when Baker, who was traveling southbound, crossed over the median into the northbound lane and was hit head-on by Losey. The only two eyewitnesses to the accident were Losey and Julia Varner. Losey testified that he noticed the taxicab “fishtailing” before crossing the median, but was uncertain as to the speed of the taxicab prior to the accident or what caused it to cross the median. Varner, who was following Losey’s semi-truck at the time of the accident, testified that she did not see the taxicab until it had crossed the median and was entering the northbound lane. Losey and Varner disagreed as to whether the taxicab had stopped prior to impact with the semi-truck.
The role of
inclement weather in causing the accident was hotly disputed. Appellant introduced evidence of “hazardous
conditions” contending that the “extreme caution” standard of care applied to
respondent-Losey. Respondents presented
the defense that the weather, rather than negligent driving, directly caused the
accident. The parties stipulated to
climatological and meteorological exhibits for the day of the accident, which
included documents from the National Weather Center showing heavy snowfall, and
that a winter storm warning was issued for the Metro area shortly after the
accident. Appellant called Varner to
testify regarding weather and road conditions at the time of the accident. Varner testified that weather conditions were
deteriorating, the roads were slippery, and many vehicles were in the
ditch. Appellant also called
All three parties called accident reconstruction experts to testify regarding the speed of the vehicles at the time of the accident. Appellant’s expert estimated that Baker was traveling at an excessive speed of 58 miles per hour at the time of the accident, and that Losey had adequate time to stop to avoid the accident. Respondent-Losey’s expert testified that Baker’s speed could not be determined from the physical evidence, and estimated that Losey’s speed was 30-36 miles per hour. Respondent-Baker’s expert testified that Baker’s speed was immeasurable, and estimated that Losey’s speed was 28 miles per hour. Respondent-Baker’s expert also testified that it was impossible from the physical evidence to determine whether anything other than weather caused or played a role in the accident, including whether another vehicle collided with Baker or caused him to swerve suddenly. The state trooper also testified that the cause of Baker’s crossing of the median was indeterminable from the evidence at the accident scene.
Respondent-Baker called four witnesses to testify that Baker was a careful person and driver. Appellant objected, but the district court overruled the objection and admitted the testimony.
In a motion in
limine, appellant sought to present testimony introducing handwritten letters
purporting to be from decedent to his wife in
During trial, the parties proposed that certain jury instructions be given by the district court. Appellant requested that the district court include CIVJIG 48.15 regarding the common carrier standard of care for a taxicab:
A common carrier has a duty to use the highest degree of care to make sure its passengers are safe. The “highest degree of care” means the utmost caution used by very careful persons. The amount of care given must also be consistent with the proper operation of the carrier’s business. A common carrier is negligent when it fails to use this standard of care.
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.
49 C.F.R. § 392.14 (2002). The district court determined that both instructions would be given to the jury along with the general negligence and “reasonable care” instructions of CIVJIG 25.10:
Reasonable care is the care a reasonable person would use in the same or similar circumstances. . . Negligence is the failure to use reasonable care. Ask yourself what a reasonable person would have done in these circumstances. Negligence occurs when a person: (1) Does something that a reasonable person would not do; or, (2) Fails to do something that a reasonable person would do.
During closing argument, appellant’s counsel stated that “the reasonable care standard does not apply here to either the taxi or the semi; both have special standards.” Both respondents objected, and brought motions for a mistrial, or in the alternative, that a curative instruction be given to correct a perceived misstatement of the law. The district court agreed, and provided the following curative instruction: “[Appellant’s counsel], during his final argument yesterday, stated that the reasonable person standard did not apply to either Defendant. This is erroneous. The reasonable person standard applies to both Defendant[s].” The district court then proceeded to give the general jury instructions, including the instructions regarding extreme caution, common carriers, reasonable care, and negligence.
The jury returned a special verdict finding both respondents negligent, and finding that neither respondent was a direct cause of the accident. The jury also found that appellant had sustained $68,000 in damages. Appellant filed a motion for JNOV or a new trial, citing erroneous evidentiary rulings and jury instructions, and that the verdict was unsupported by the evidence. The district court denied the motion. This appeal follows.
D E C I S I O N
Appellant raises four issues on appeal. First, appellant contends that the district court’s jury instructions were erroneous and that the errors were prejudicial. The disputed jury instructions involve the standard of care and life expectancy tables.
This court reviews
a district court’s decision on jury instructions under an abuse of discretion
standard. Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (
Standard of Care Instructions
First, appellant contends that the curative instruction given by the district court that the reasonable care standard applied to both respondents conflicted with the jury instruction for a common carrier, and that the instructions together confused the jury as to the controlling standard of care. Respondent-Baker argues that the curative instruction was not clearly erroneous.
But the only claims before the jury were appellant’s negligence claim against respondent-Baker, and appellant’s negligence claim against respondent-Losey. The standard of care owed by respondent-Baker to appellant as a common carrier was the highest degree of care and not the reasonable care standard. In that respect, the curative instruction and the jury instruction for a common carrier, i.e., highest degree of care, are in conflict. It is possible that the jury could have concluded that the reasonable care standard applied to respondent-Baker rather than the highest degree of care. Therefore, we conclude that the district court abused its discretion in giving the curative instruction as to respondent-Baker.
Next, appellant argues that the curative instruction conflicted with the jury instruction that a commercial vehicle exercise extreme caution. Respondent-Losey argues that the district court properly instructed the jury as to the standard of care applicable to respondent-Losey. Respondent’s argument has merit. The district court gave both the reasonable person standard, and when hazardous conditions exist, the extreme caution standard. Thus, if the jury determined that hazardous conditions existed at the time of the accident, the extreme caution standard would apply. Because the jury could have found that either standard applied to respondent-Losey, we conclude that the curative instruction was not error as to respondent-Losey.
further argue that, even if the curative instruction was a misstatement of the
law, the error was harmless because the jury concluded that both respondents
were negligent. A conclusion that the
district court erroneously gives a jury instruction that misstates the law does
not end the analysis. Rowe v. Munye, 702 N.W.2d 729, 743 (
Reviewing the jury instructions as a whole, we conclude that the erroneous curative instruction was not prejudicial. Because the jury determined that both respondents were negligent, it is reasonable to conclude that the total impact of the curative instruction was not significant. On this record, we cannot conclude that the curative instruction changed the outcome of the case. Consequently, we conclude that the erroneous curative instruction was not prejudicial.
Life Expectancy Instruction
contends that the district court erred when it instructed the jury as to the
life expectancy of a Liberian male. Appellant
argues that this instruction was misleading because the decedent immigrated to
are based on the average life of a large group of persons and are received into
evidence to show the probable life expectancy of the deceased for the purpose
of awarding damages. Hallada v. Great N. Ry., 244
Here, the district court gave the following jury instructions regarding the decedent’s life expectancy:
According to life expectancy tables the future life expectancy of a 52-year-old African American male is 73.4 years. And according to Liberian life expectancy information, the life expectancy of a Liberian male is 47.03 years. Use this figure to help you determine the probable life expectancy of [decedent]. It is not conclusive proof of his life expectancy and you are not bound by it, it is only an estimate based on average experience. You may find that [decedent] would have lived a longer or shorter period . . . than that given in these tables. Consider this figure along with the evidence of the health, physical condition, habits, occupation, and surroundings of [decedent] and other circumstances that might affect his life expectancy.
This jury instruction follows the language in Thoirs and Hallada regarding mortality tables and accurately states the law regarding the weight to be given to such tables. The mortality tables utilized by the district court were from reliable government sources. Therefore, the jury instruction regarding life expectancy was not erroneous.
Second, appellant contends that the district court abused its discretion in its admission of certain testimony regarding the liability issues of the case. The disputed evidence involves character evidence and statistical evidence.
that the district court erred in admitting the testimony of four witnesses that
Baker was a careful person and driver. Appellant
argues that this testimony was inadmissible character evidence, constituting
prejudicial error. Absent an erroneous
interpretation of the law, the question of whether to admit evidence is within
the district court’s discretion. Kroning, 567 N.W.2d at 45-46. “Entitlement to a new trial on the grounds of
improper evidentiary rulings rests upon the complaining party’s ability to
demonstrate prejudicial error.”
The district court concluded that the testimony regarding Baker’s careful driving was habit or routine practice admissible under Minn. R. Evid. 406. The district court noted that “evidence of Baker’s habitual driving conduct was allowed into evidence for the express purpose of rebutting insinuations made by Plaintiff throughout the trial that Baker was driving too fast for the conditions or passing vehicles from the right-hand lane in the moments preceding the accident.”
Rule 406 states
that “[e]vidence of the habit of a person . . . is relevant to prove that the
conduct of the person . . . on a particular occasion was in conformity with the
habit or routine practice.”
Here, we conclude
that the testimony that Baker was a “careful person” and “careful driver” is
character evidence, i.e., a “generalized description of one’s disposition, or
of one’s disposition in respect to a generalized trait.”
Next, we review whether the admission of the character evidence was prejudicial. To be prejudicial, it must appear that such evidence might reasonably have changed the result before the error constitutes grounds for a new trial. Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 274 (1989). Here, despite the testimony, the jury found Baker negligent in the operation of the vehicle at the time of the accident. Because the character evidence did not affect the jury’s ultimate finding of negligence, we conclude that the district court did not abuse its discretion.
Statistician Testimony of Similar Accidents
Appellant also contends that the district court erred in permitting respondent-Baker to call a state statistician to testify regarding the number of other traffic accidents occurring on the same day.
“The law is well
settled in this state that evidence of similar accidents from the same
inanimate cause is admissible to prove that the common cause was dangerous and
likely to cause accidents.” Mockler v. City of
The statistician testified that 431 other accidents occurred in the seven-county metro area on the same day that this accident occurred. The statistician testified that “on a cold, icy, snowy day traffic crashes jump more than usual than on a normal weather day.” But he admitted on cross-examination that he was unable to state whether any of the 431 crashes were weather-related or involved similar driving conditions.
respondent-Baker was not able to establish that any of the 431 other accidents
were substantially similar to the accident in this litigation, the district
court abused its discretion by admitting the evidence. But appellant must also establish that the
evidence was prejudicial in order to require a new trial. To be prejudicial, it must appear that such
evidence might reasonably have changed the result before it constitutes grounds
for a new trial. Rusciano, 445 N.W.2d at 274.
An error in the admission of evidence is grounds for a new trial “if it
is obvious, from a consideration of the whole case, that substantial prejudice
resulted to the adverse party.” Fewell v. Tappan, 223
Because negligence and causation are different issues, we review them separately. On the issue of negligence, the jury found both respondents negligent and, therefore, the statistical evidence of other accidents had no impact on the jury’s special verdict on that issue.
On the issue of
causation, our review focuses on whether the other evidence in the record is
sufficient to justify the verdict. See Boehne v. Guardian Life Ins. Co. of
Essentially, appellant seeks to argue that the weather resulted in hazardous road conditions to support his negligence theory; but that the weather and the hazardous road conditions were not a direct cause of the accident. Here, the statistician’s testimony played a very small role in comparison to the other substantial evidence regarding the weather, and the hazardous road conditions. Based on our review of the whole record, we cannot say that it is obvious that appellant was substantially prejudiced by the statistician’s testimony. Consequently, we believe that the other admitted evidence was sufficient to justify the jury verdict.
contends that the district court erred in excluding certain evidence regarding
damages that deprived him of a fair trial.
Appellant challenges three rulings of the district court considered in a
motion in limine. This court reviews the
district court’s evidentiary rulings for a clear abuse of discretion. State
v. Amos, 658 N.W.2d 201, 203 (
Appellant sought to introduce letters that decedent’s wife informed him she had received from decedent. The district court excluded the letters based on hearsay and lack of authenticity. Appellant argues that familiarity with decedent’s handwriting and personal knowledge gained from collecting the letters from decedent’s wife satisfies the authenticity requirements. Appellant also argues that hearsay does not apply because the letters were offered to show evidence of the decedent’s continued relationship with his wife rather than the truth of statements contained in the letters.
evidence is governed by Rule 901 of the Minnesota Rules of Evidence. In re
Welfare of S.A.M., 570 N.W.2d 162, 165 (
Here, neither the sender of the letters (decedent) nor the recipient (decedent’s wife) were available to testify to the authenticity of the letters. The envelope of one of the letters lacked any postal markings or stamps that would indicate it was actually sent from decedent to his wife. Respondents also noted that the letters were in English, had varying handwriting throughout, and were sent to third parties rather than directly to the family.
district court excluded the evidence on the basis of hearsay. Hearsay is a statement, either oral or
written, other than one made by the declarant while testifying at the trial or
hearing, offered to prove the truth of the matter asserted.
Appellant also sought to introduce testimony regarding portions of phone conversations purportedly between decedent and his family that appellant overheard. The district court excluded this testimony on hearsay grounds. Appellant argues that his testimony regarding the substance of overheard phone conversations was not hearsay and, instead, was offered to show decedent’s involvement with his family.
statements made in a conversation overheard by a witness is generally
considered hearsay absent a hearsay exception.
Appellant also sought
to introduce written receipts of monetary transfers made by decedent to his
But even if the recipients of the excluded transfers were related to decedent, there was no evidence that the money was transferred to decedent’s immediate family, or that decedent’s family had actually received the money. On this record, we conclude that the district court did not abuse its discretion.
Appellant contends that the jury’s special verdict that respondent-Baker’s negligence was not the direct cause of the accident was perverse and unsupported by the evidence. Respondent-Baker contends that the finding of causation is a separate inquiry from a finding of negligence and that the evidence presented was sufficient for the jury to find negligence without direct causation.
is well settled that we will set aside an answer to a special verdict question
only when it is perverse and palpably contrary to the evidence.” Hauenstein
v. Loctite Corp., 347 N.W.2d 272, 275 (
appellant argues that respondent-Baker failed to meet his burden of proof
establishing excuse or justification. Essentially,
appellant argues that, because Baker crossed over the median, he was
negligent. Clearly, proof of a violation
of the traffic code establishes a prima facie case of negligence. Lynghaug
v. Payte, 247
further argues that a mistake in the curative jury instruction on the standard
of care skewed the jury’s deliberations and consideration of the causation
question. Appellant contends that if the
jury applied the highest degree of care rather than the reasonable person
standard expressed in the curative instruction, then negligence and causation
would be more easily established. But
negligence and proximate cause are separate issues for the jury to decide in
assigning liability. Vanderweyst v. Langford, 303
The crux of
appellant’s argument is that the jury cannot find respondent-Baker negligent
and then find that the negligence was not the direct cause of the accident. But, “[i]t is a well-settled principle that
causation, like negligence itself, is a fact issue for the jury except when the
facts are undisputed and are reasonably susceptible of but one inference.” Jorgensen
v. Hawton, 281
Here, the jury’s
verdict regarding causation is not contrary to the evidence “viewed as a whole
and in the light most favorable to the verdict.” Hauenstein,
347 N.W.2d at 275. The jury could have
determined that appellant did not meet his burden of establishing causation because
the evidence regarding Baker’s speed was inconclusive. Also, the jury could reasonably have found that,
even if Baker failed to act with the utmost degree of care under the common
carrier standard, the direct cause of the accident was unavoidable, and due to the
sudden onset of inclement weather. See, e.g., Pouliot v. Fitzsimmons, 582
N.W.2d 221, 224 (