This opinion will be unpublished and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
Douglas J. Ward, by and through his
parent and natural guardian, Mary E. Ward,
and Mary E. Ward, individually,
Francis A. Freiderich, et al.,
Dakota County District Court
File No. C9039100
Josh A. Cooner, Cooner Law Offices,
Robert W. Vaccaro, Flynn, Gaskins & Bennett, LLP,
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
Appellants, an injured child and his mother, challenge the district court’s denial of their motion for a new trial in this dog-bite case. Appellants contend that the verdict was grossly inadequate given the extent of injuries sustained and must be the result of a compromise attributable to the district court’s erroneous submission of the issue of provocation to the jury. Because appellants have waived the claim that the damages were inadequate, and submission of the issue of provocation to the jury was not error, we affirm.
Eleven-year-old appellant Douglas Ward (DJ), who was playing at his friend Tony Friederich’s house, was bitten in the face by the Friederichs’ dog, Grizzly. Only the boys witnessed the incident, and each had a different version of what occurred. According to DJ, he and Tony watched television in the Friederichs’ living room, and then Tony started playing a video game. DJ was sitting on a recliner, Tony was on the couch, and Grizzly was lying on the floor between them. Tony finished his turn, stood up, and started to hand the game controller to DJ. DJ testified that as he reached for the controller, “[t]he dog came up and bit me . . . .” Grizzly bit DJ in the face. DJ punched the dog to get him away, and Tony tried to pull the dog off.
According to Tony, as he played the video game, DJ got Grizzly’s favorite toy and began to play with Grizzly. Tony testified that DJ was teasing Grizzly by waving the toy in front of Grizzly’s face and then taking it away. Tony told DJ not to play with Grizzly because Grizzly is “really offensive about his toys.” But DJ continued to play with Grizzly. Tony said that DJ was holding the toy and waving it in front of DJ’s face, causing Grizzly to jump up at the toy. At some point, according to Tony, DJ held the toy too close to his face and the dog went for the toy and accidentally caught hold of DJ’s face. Tony said the dog did not bite or attack DJ, but accidentally ran into DJ’s face with his teeth.
DJ called his mother, appellant Mary Ward, on the telephone after Tony confined the dog in a bathroom. Mary Ward rushed DJ to a hospital where doctors performed surgery to repair his face using many multilayered stitches to close the wounds.
DJ and his mother sued respondents, Francis A. and Sherri Freiderich (Tony’s parents and Grizzly’s owners) under Minn. Stat. § 347.22 (2004). The district court denied appellant’s motion for summary judgment on liability concluding that there were disputed issues of fact regarding provocation. On the morning of trial, appellants moved to exclude admission of any evidence in support of a provocation defense. The district court denied the motion concluding that the issue was one of credibility for the jury.
Appellants also moved in limine to preclude introduction of DJ’s medical records except for those relating to the dog bite, and to preclude introduction of DJ’s school records, as irrelevant. Respondents argued that medical records showing DJ’s problems with ADHD and impulsivity bolstered Tony’s version that DJ was warned not to play with Grizzly but disregarded the warning and behaved impulsively. Respondents argued that the school records were relevant to Mary Ward’s claim that DJ had more problems at school after the incident. The district court denied the motion in limine, and allowed introduction of some of the medical and school records over appellants’ renewed objection to relevancy.
The district court instructed the jury that, “Provoke means to excite, to stimulate, to arouse, to irritate, or enrage.” Shortly after deliberations began, the jury requested a dictionary. The district court denied the request. The jury then asked, “Question Number Two: Would you please have additional clarification on the word ‘provoke’ other than what is in the notes? We see two different meanings.” In response, the district court submitted additional definitions for the word “provoke.” The additional definitions were:
Provoke . . . 1. To incite to anger or resentment. 2. To stir to action or feeling. 3. To give rise to; evoke. . . . 4. To bring about deliberately; induce. . . .
Provoke . . . 1: to incite to anger 2: to provide the needed stimulus for . . .
Provoke 1: call forth . . . 2: call forth . . . 3: provide the needed stimulus for . . . 4: annoy continually or chronically . . .
The jury then asked, “If we decide that [DJ] did in fact provoke Grizzly, could we as a jury award injuries nonetheless to the Wards?” In response, the district court instructed the jury that if they found that DJ provoked the dog, he would receive nothing in damages. After several hours of deliberation, the jury returned a verdict finding that DJ did not provoke Grizzly and awarding $4,000 for DJ’s past pain, disability, and disfigurement; $2,000 for past embarrassment and emotional distress; the stipulated amount of past medical expenses; and nothing for future pain, disability, disfigurement, embarrassment, and emotional distress. Appellants moved for a new trial arguing that the award of damages was inadequate and not justified by the evidence, and that errors of law, namely improper submission of the provocation defense to the jury, led the jury to enter a “compromise” verdict. The district court denied the motion, and this appeal followed.
I. Evidentiary issues not preserved for appeal
Appellants argue that the district
court abused its discretion by admitting irrelevant medical and school
records. But “evidentiary rulings are
not reviewable where error is not alleged in a motion for new trial even though timely objection was
made at trial.” Waseca Sand & Gravel, Inc. v. Olson, 379 N.W.2d 592, 595-96 (
II. Adequacy of damages
Appellants assert that although the
jury “technically” found that DJ did not provoke the dog, “it is clear by the
questions asked by the jury during deliberations, and the jury’s final award,
that the jury verdict represents a compromise” caused by the jury’s concern
with the issue of provocation. “On
appeal from a denial of a motion for a new trial, the verdict must stand unless
it is manifestly and palpably contrary to the evidence, viewed in a light most
favorable to the verdict.” ZumBerge v. N. States Power
On appeal, appellants have merely
asserted, without any authority or argument, that the damages are manifestly
and palpably contrary to the evidence.
Assignment of error in a brief based on mere assertion and not supported
by argument or authority is waived, “unless prejudicial error is obvious on
mere inspection.” State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (
III. Submission of provocation issue to jury
The standard of review for denial of
a motion for new trial depends on the standard of review for the underlying
legal error alleged. Compare Dostal v. Curran, 679 N.W.2d
192, 194 (
In the context of the dog-bite
statute, Minn. Stat. § 347.22 (2004), provocation is generally a question of
fact for the jury. Bailey by Bailey v. Morris, 323 N.W.2d 785, 787 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.