This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Roberta Berg, et al.,





Katherine Margaret Roth,




Filed March 20, 2007

Reversed and remanded

Lansing, Judge



Hennepin County District Court

File No. 27CV04-014043



Richard J. Sheehan, Harvey & Sheehan, Ltd., 7401 Metro Boulevard, Suite 555, Minneapolis, MN  55439 (for respondents)


Roger L. Kramer, Gislason & Hunter, L.L.P., 9900 Bren Road East, Suite 215E, Minnetonka, MN  55343-9666; and


Michael B. Padden, Padden & Associates, P.L.L.C., 782 Northwestern Building, 275 East Fourth Street, St. Paul, MN  55101 (for appellant)



            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


            At the close of evidence in a jury trial on Roberta Berg’s negligence claim, the district court entered judgment as a matter of law determining that Katherine Roth’s negligence was one-hundred percent and Berg’s negligence was zero.  Because the district court erred by applying a nonrebuttable per-se-negligence standard rather than a rebuttable prima-facie-evidence standard, we reverse and remand.


            Roberta Berg was severely injured in an automobile-bicycle accident in November 2001, when Katherine Roth’s vehicle rolled over Berg after she fell with her bicycle at a South Minneapolis intersection.  Berg sued Roth for damages, and the parties orally agreed to try the issue of liability to a jury with damages preset at Roth’s policy limit of $100,000.  According to the e-mail confirmation of the oral agreement, damages would be payable only if the jury determined that Roth was more negligent than Berg. 

At trial in October 2005, Berg and Roth each testified, and the court received into evidence photographs of the intersection where the accident occurred.  Berg testified that she had been riding her bicycle to work every day for at least fifteen years.  The accident occurred under daylight conditions on clear and dry pavement, and the weather was not a factor.  Berg was wearing a yellow jacket and riding her bicycle east on the sidewalk extending along the north side of Minnehaha Parkway

When Berg was roughly twenty-five feet away from the intersection at 28th Avenue South, she noticed Roth’s car stopped behind the crosswalk in the lane nearest her.  A tree on the corner partially obstructed her view.  The traffic-control signal for crossing 28th Avenue indicated “walk” as Berg approached it, and she slowed her speed to between three and five miles per hour, about the speed of “fast walking.”  Berg did not recall whether the car’s right turn signal was blinking but testified that she was concerned that Roth might not be aware of her presence.  As Berg entered the crosswalk, Roth’s car began to move forward.  Berg applied her bicycle brakes “hard” and, without striking the car, fell forward onto the pavement immediately in front of Roth’s car.  The car continued to advance, and a front tire ran over Berg’s chest before Roth stopped. 

            Roth testified that she was driving south on 28th Avenue and stopped behind the crosswalk at the Minnehaha Parkway intersection.  Roth had a red traffic signal and intended to make a right turn and proceed west.  In preparation for her turn, Roth looked to her right for pedestrian traffic and saw none.  The photographs of the intersection show that the view of the sidewalk from behind the crosswalk is partially obstructed by a large tree and a sloped yard.  After looking to her right, Roth then looked to her left as she prepared to merge into the morning rush-hour traffic proceeding west on Minnehaha Parkway.  While Roth watched the traffic to negotiate the merger, she moved forward.  She did not see Berg approaching, entering, or falling in the crosswalk.  As Roth moved her car forward into the crosswalk, the front tire ran over Berg.  Startled by the noise, Roth stopped the car before the rear tire came into contact with Berg.

            At the close of evidence, Berg’s counsel moved for a judgment as a matter of law determining Roth’s negligence to be one-hundred percent and Berg’s zero.  The district court granted the motion.  In response to posttrial motions, the district court denied Roth’s motion for a new trial.  The district court also granted Berg attorneys’ fees and costs under Minn. Stat. § 549.211 (2006) after concluding that Roth failed to comply with the parties’ pretrial settlement agreement to tender the policy limits of $100,000.  This appeal followed.


            The district court may grant a judgment as a matter of law in a jury trial when the evidence is insufficient to present a fact question for the jury.  Minn. R. Civ. P. 50.01.  We independently review the district court’s judgment as a matter of law.  Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983) (discussing “directed verdict,” now known as “judgment as a matter of law”).  On review, as in the district court, we must view all of the evidence and make every inference in favor of the nonmoving party.  Minder v. Peterson, 254 Minn. 82, 86, 93 N.W.2d 699, 703 (1958).  A judgment as a matter of law is sustainable only if the evidence predominates so overwhelmingly that the court would be obliged to set aside a contrary verdict as manifestly against the weight of the evidence.  Nemanic, 337 N.W.2d 670.  Except in rare cases in which the evidence is undisputed and “the factfinder could come to only [one] conclusion, the apportionment of negligence should be left to the jury.”  Riley v. Lake, 295 Minn. 43, 58, 203 N.W.2d 331, 340 (1972). 

            In ordering judgment for Berg as a matter of law, the district court found that (1) Roth was negligent and (2) Berg was not negligent.  In its written order the court concluded that Roth was per se negligent because she violated traffic laws when she failed to yield to a pedestrian who had the right-of-way.  See Minn. Stat. §§ 169.06, subd. 5(a)(3)(iii) (providing that driver attempting right turn on red traffic signal must yield right-of-way to pedestrians lawfully crossing), .222, subd. 4(f) (extending rights and duties of pedestrians to bicyclists lawfully on sidewalk) (2006).  The court then found that Roth’s negligence was the direct cause of the accident and granted Berg’s motion. 

            Ordinarily, the violation of a statute is per se negligence.  Anderson v. State Dep’t of Natural Res., 693 N.W.2d 181, 189 (Minn. 2005).  For per se negligence to apply, “the person harmed by the violation must be among those the legislature intended to protect, and the harm must be of the type the legislature intended to prevent by enacting the statute.” 190.  Because it is undisputed that Roth violated a statute and because Berg was both a person the statute was intended to protect and suffered injuries the statute aimed to prevent, the general rule of per se negligence is invoked.  But Minnesota law specifically excepts claims involving the violation of traffic statutes from the general rule.  Minn. Stat. § 169.96(b) (2006) (providing for interpretation and effect of traffic regulations). 

            Under Minnesota law, the violation of a traffic statute “shall not be negligence per se but shall be prima facie evidence of negligence only.”  Id.  Prima facie evidence of negligence is evidence that tends to establish negligence if the evidence is unexplained or uncontradicted.  Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000).  Thus a party who violates a traffic statute is presumed negligent “only so long as there is no actual evidence to justify a reasonable assumption that such violation was not negligent under the circumstances.”  Demmer v. Grunke, 230 Minn. 188, 193, 42 N.W.2d 1, 5 (1950).  The distinction between per se negligence and prima facie evidence of negligence is significant because the per se standard creates an irrebuttable presumption, and the prima facie standard creates a rebuttable presumption.  Id. (explaining process of returning evidentiary burden to plaintiff); Osborne v. McMasters, 40 Minn. 103, 105, 41 N.W. 543, 544 (1889) (explaining that under per se standard, violation of statute is “conclusive”).

            When the record contains evidence that tends to excuse or justify the offender’s conduct, “the question of negligence is for the jury.”  Kirsebom v. Connelly, 486 N.W.2d 172, 175 (Minn. App. 1992).  Even when the evidence establishes the causal negligence of the driver who violated the statute, the causal negligence of the other person involved in the accident and the comparison of that negligence “may well be jury issues.”  Simchuck v. Fullerton, 299 Minn. 91, 99, 216 N.W.2d 683, 689 (1974).  The evidence of causal negligence need not be offered by the offender, but can appear “from any quarter.”  Demmer, 230 Minn. at 193, 42 N.W.2d at 5. 

            The record in this case contains evidence that, viewed in a light favorable to Roth, potentially excuses or justifies her actions.  Photo exhibits show that Roth’s view of the sidewalk on which Berg was riding her bicycle was obstructed by a large tree and a sloped yard.  Roth testified that she stopped behind the crosswalk, looked to the right, and saw no oncoming pedestrians or bicyclists.  It is possible that Roth did not see Berg because at the time she looked, Roth’s view was obscured by the large tree or the sloped yard.  Whether the presence of these obstacles excused Roth from seeing Berg and refraining from entering the crosswalk until Berg had passed presented an issue on which reasonable minds could differ.  See Lapides v. Wagenhals, 285 Minn. 403, 408, 173 N.W.2d 334, 336 (1969) (holding that whether circumstances excuse failure to see approaching vehicle or to maintain proper lookout is question for jury). 

            Roth testified that she entered the crosswalk while looking to her left because of the heavy traffic.  She also acknowledged that she might well have seen Berg by looking right if Berg had not been below her sightline.  But Roth believed that she had already determined that no pedestrian traffic was approaching from her right.  Whether a driver is justified in temporarily looking away from the road ahead after seeing that it is clear is a question for the jury.  Rome v. Rome, 307 Minn. 207, 209, 239 N.W.2d 232, 233 (1976).  The record shows that Roth may have relied on an obstructed view of the sidewalk when she entered the crosswalk without again looking to her right.  This evidence tends to establish a degree of excuse or justification, and thus the question of Roth’s negligence should have been left for a jury to consider.  Konkel v. Erdman, 254 Minn. 307, 316, 95 N.W.2d 73, 79 (1959).

            The record similarly demonstrates that the issue of Berg’s negligence was also a jury question.  The district court found that Berg was not negligent because Roth did not present any evidence of negligence on Berg’s part.  But the record could support a finding of negligence.  “The law is clear that [pedestrians are] not absolved from the duty of exercising ordinary care for [their] own safety merely because [they are] on the crosswalk and [have] the right of way.”  Becklund v. Daniels, 230 Minn. 442, 445, 42 N.W.2d 8, 10 (1950).  When the circumstances indicate that a reasonably prudent person should not rely on her right-of-way, pedestrians must observe this duty.  See id. at 445-46, 42 N.W.2d at 10 (noting that circumstances “would have warned a [person] of ordinary prudence that he might not be seen by the driver of the car and that he might not reasonably rely on his right of way as a pedestrian”).  Pedestrians are obligated to keep a proper lookout and take practical steps to avoid accidents that they can reasonably foresee.  Because the right-of-way rule is dependent on the circumstances, it is usually a fact question for a jury.  Fisher v. Edberg, 287 Minn. 105, 110-11, 176 N.W.2d 897, 901 (1970). 

            The evidence presented at trial included Berg’s admission that she was concerned that Roth did not see her.  Thus Berg arguably knew she might have to stop suddenly, despite having the right-of-way.  Nonetheless, Berg was unable to stop without falling in front of Roth’s car.  A jury could reasonably conclude that under similar circumstances an ordinarily prudent person would be able to stop without toppling over or would elect to strike the car rather than fall into its path.  Therefore a jury could find that Berg was contributorily negligent.  In light of this evidence, it was error to enter judgment as a matter of law because reasonable minds could determine that Berg was also negligent. 

            Roth also asserts that the district court improperly excluded evidence.  We address this issue to provide guidance on remand.  Evidentiary rulings lie within the sound discretion of the district court and will not be overturned absent an abuse of that discretion.  State v. Vance, 714 N.W.2d 428, 436 (Minn. 2006).  Roth, as appellant, bears the burden of establishing that the district court abused its discretion, and that the rulings were prejudicial.  Id.  Roth contends that the district court improperly excluded evidence (1) that Berg was riding her bike against traffic; (2) that Berg had alternate routes available to her; and (3) that Roth had never seen a bicyclist riding against traffic at that location before the day in question.  To be admissible, offered evidence must be relevant.  Minn. R. Evid. 402.  Relevant evidence is any evidence that tends to make a fact of consequence more or less likely.  Minn. R. Evid. 401.  We agree with the district court’s rulings that this evidence is irrelevant.

            First, Berg may have been riding “against” the direction of the adjacent street traffic, but she was not obligated to ride in a given direction on the sidewalk.  See Minn. Stat. § 169.222, subd. 4(f) (entitling bicyclists legally riding on sidewalks to all rights of pedestrians).  Second, Berg was not obligated to use an alternate route, despite the availability.  Berg was entirely within her right to ride “against” traffic on the route she chose, and those facts neither enhance Berg’s expected duty of care nor lessen Roth’s expected duty of care.  Third, Roth’s subjective knowledge about the frequency or infrequency of bicycle traffic at the intersection does not weigh on how an ordinarily prudent person would have acted under similar circumstances.  See Florenzano v. Olsen, 387 N.W.2d 168, 174 (Minn. 1982) (judging negligence “by measuring one’s conduct against an objective standard of reasonable care or competence”).  The district court did not abuse its discretion in excluding this evidence.

            Roth’s remaining argument challenges the court’s order for attorneys’ fees and costs for nonpayment of the judgment.  Because we conclude that the order granting Berg’s motion for judgment as a matter of law is not sustainable, we similarly reverse the imposition of sanctions.  The judgment is reversed and the case is remanded to the district court for retrial. 

            Reversed and remanded.