This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-95-1971

Gerald Coleman, individually
and on behalf of the Estate of
Beth Louise Oliver,
Appellant,

vs.

Ronald Virgil Rask, et al.,
Respondents.

Filed July 2, 1996

Affirmed
Harten, Judge

Hennepin County District Court
File No. 9411026

Marc G. Kurzman, Carol M. Grant, Kurzman, Grant & Ojala, 2445 Park Avenue South, Minneapolis, MN 55404 (for Appellant)

Thomas L. Thompson, Bren, Nyberg & Thompson, Interchange Tower, Suite 1250, 600 South Highway 169, St. Louis Park, MN 55426 (for Respondents)

Considered and decided by Harten, Presiding Judge, Willis, Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

This is a wrongful death action in which a bicyclist was struck and killed by a semi-truck as it turned at an intersection. The jury found that the bicyclist was negligent and that the truck driver and his employer were not negligent. The decedent's trustee appeals, claiming that insufficiency of the evidence, erroneous jury instructions, and erroneous admission of evidence, individually or cumulatively, require JNOV or a new trial. Appellant also contests trial court failure to impose attorney fees and sanctions. We affirm.

FACTS

On June 17, 1994, Beth Oliver was struck and killed by a semi-truck driven by Ronald Rask, owned by Hiawatha Truck and Trailer Leasing, and leased to Kujak Transport, Inc. Oliver was biking east on East 24th Street in Minneapolis, intending to cross Hiawatha Avenue. She was pulling her infant son in a bright yellow trailer attached behind her bicycle. Rask was also traveling east on 24th Street. He was stopped for a red light at Hiawatha Avenue while Oliver came up along the right side of his truck. When the light turned green, Rask turned right (south) onto Hiawatha Avenue. After traveling a few feet, the truck's right front wheel ran over Oliver and crushed her. Her infant was unharmed.

Appellant Gary Coleman, individually and on behalf of Oliver's estate, brought a wrongful death action against respondents Ronald Rask, Hiawatha Truck and Trailer Leasing, and Kujak Transport, Inc. for negligence and negligent hiring, training, and retention. At trial, Rask testified that he did not see Oliver. The evidence conflicted about how the truck was positioned for the right turn and whether Rask was using his turn signal. The jury found Oliver negligent, but attributed no negligence to respondents. [1] The trial court denied appellants' motions for JNOV, new trial, and attorney fees and sanctions. This appeal resulted.

D E C I S I O N

1. Sufficiency of the Evidence

On appeal from denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). Nor will we reverse denial of a motion for JNOV if there is any competent evidence reasonably tending to sustain the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). On appeal, evidence is viewed in the light most favorable to the verdict. ZumBerge, 481 N.W.2d at 110. The testimony of one witness and the inferences reasonably drawn from that testimony are sufficient to support a jury's verdict upon review. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 508, 232 N.W.2d 236, 239 (1975).

The evidence in this case conflicted. An eyewitness testified that the truck's alignment made it appear that Rask was going straight or turning left; the witness did not recall if Rask was signaling to turn right. Several witnesses testified that had Rask looked in his right-hand mirrors or the cutout window in the door, he would have seen Oliver and the accident could have been avoided. Through use of a computer-animated video, appellants showed how the accident may have occurred. Appellants also presented evidence that Rask had a poor driving record, that his Minnesota drivers' license had been suspended, and that the corporate respondents may not have properly hired, trained, or retained him.

Rask testified that he had his truck properly positioned for a right turn and that he was signaling the turn. An eyewitness said the turn signal was on, although he was not absolutely sure. Rask testified that he did not see Oliver because she was in his "blind spot" at the wrong time. Because he had numerous things to look out for, five to six seconds probably elapsed between the time he last looked in his right-hand mirrors and the impact. The corporate respondents testified that they went through the corporation's usual process of drug testing, driving record investigation, written exam, and road test before hiring Rask. Rask had a valid Wisconsin commercial driver's license.

There was evidence that it was drizzling, making it harder for a bicycle to stop. The evidence did not establish Oliver's exact position or speed on the right side of the road prior to the accident. Respondents criticized appellants' video animation of the accident as being only one possible version of events, based on unknown variables, and showing Oliver making an "evasive movement" in order to be consistent with the point of impact. Respondents also argued that Oliver was negligent because she knew the truck was there and should not have come up beside it.

We conclude that when viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find Oliver negligent but Rask and the other respondents not negligent.

2. Jury Instructions

A trial court has broad discretion in determining jury instructions. State Farm Fire & Casualty Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). An appellate court will not grant a new trial where the instructions fairly and correctly state the applicable law. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

a. Passing on the Right

Appellants argue that the trial court should not have instructed the jury on the statute controlling passing on the right. Over objection, [2] the jury was instructed that under Minn. Stat. ' 169.18, subd. 4 (1994):

The driver of a vehicle may overtake and pass upon the right of another vehicle only upon the following conditions:

(a) When the vehicle overtaken is making or about to make a left turn;

(b) Upon a street or highway with unobstructed pavement not occupied by parked vehicles of sufficient width for two or more lines of moving vehicles in each direction;

(c) Upon a one-way street, or upon any roadway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and of sufficient width for two or more lines of moving vehicles;

(d) The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway. [3]

In addition, the jury was instructed that violation of a traffic statute was prima facie negligence unless there was evidence to show reasonable excuse.

Generally, where a statute applies, the court should read it to the jury. O'Neill v. Minneapolis St. Ry., 213 Minn. 514, 524, 7 N.W.2d 665, 670 (1942). If sufficient evidence is received that would support a jury finding in accordance with a possible version of the facts, a party is entitled to have any relevant statute read to the jury. Tollefson v. Ehlers, 252 Minn. 370, 376, 90 N.W.2d 205, 210 (1958).

It is undisputed that Oliver was passing the truck on the right. Appellants argue that the statute does not apply because the road was wide enough for two lanes of traffic in each direction. Testimony showed that the road was 46 feet wide, that a normal lane of traffic is 11 to 12 feet wide, and that there were no lane markings on the road. The jury thus could have found that the statute was not violated because there were two lanes of traffic in each direction. The jury also could have found, however, that the statute was violated because paragraph (d) allows passing on the right "only under conditions permitting such movement in safety." Id. We conclude that the trial court did not abuse its discretion in reading the statute to the jury.

b. Turning and Starting Instruction

Appellants argue that the trial court erred by failing to instruct the jury on a driver's duty when turning and starting. The statute states:

The driver of a vehicle intending to turn at an intersection shall do as follows: (1) Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway * * *.

Minn. Stat. ' 169.19, subd. 1 (1994).

Appellants have not preserved this issue for appeal. They included this statute in their list of requested jury instructions, but it was not read to the jury, and the only reference to it in the record is when appellant's counsel stated:

I just wanted to make a record that the plaintiff has requested and it is my understanding the Court has denied that the Jury be instructed on Minn. Stat. * * * 169.19, turning and starting, we had requested Subd. 1, part 1. And I don't think we need anything more than that for the record.

Appellants, however, did not include the issue in their posttrial motion papers. See Hackett v. State, Dep't of Natural Resources, 502 N.W.2d 425, 426 (Minn. App. 1993) (posttrial motion for new trial raising individual errors prerequisite to review of those errors on appeal). At oral argument before this court, appellants' counsel stated that this issue was argued at the posttrial motion hearing. No transcript of that hearing has been provided, and without such transcript, we have no record that this issue has been preserved for appeal. See Minn. R. Civ. App. P. 110.01 (record on appeal limited to papers filed in trial court and transcript of proceedings, if any); Brown v. First Growth, Inc., 386 N.W.2d 794, 797 (Minn. App. 1986) (failure to provide transcript makes meaningful review impossible).

Even had the issue been preserved for appeal, it would not warrant reversal. We agree with appellants that because Rask was indisputably making a right turn, the statute applies and the instruction should have been given at appellants' request. As respondents point out, however, the manner of making a right turn is a matter of common knowledge; thus there was no error so prejudicial as to require reversal.

c. Failure to Produce Evidence Instruction

Appellants requested that the trial court instruct the jury on respondents' failure to produce evidence. See 4 Minnesota Practice, CIVJIG 25 (1986). Minnesota law permits "an unfavorable inference to be drawn from failure to produce evidence in the possession and under the control of a party to litigation." Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990). While a trial court may instruct the jury on this inference, it is not error to deny such instruction. Zuber v. Northern Pac. Ry., 246 Minn. 157, 169-70, 74 N.W.2d 641, 651 (1956). Furthermore, the JIG recommends that the instruction not be given. 4 Minnesota Practice at 23.

Appellants contend that respondents had evidence that they destroyed or refused to produce relating to their accident files and Rask's personnel file. During trial, a file was obtained from the trunk of one respondent's car containing items that had not been previously disclosed. Respondents admit that this evidence should have been produced during discovery. Nonetheless, because instructing the jury on failure to produce evidence is discretionary, we conclude that the trial court did not err by refusing to give the requested instruction.

d. Curative Instruction

Appellants argue that the trial court erred by not giving a curative instruction when respondents' counsel elicited testimony regarding criminal charges. We disagree. Despite a pretrial order that there be no reference to criminal proceedings, respondents' counsel asked a police officer why this accident was "investigated in the way it was." The witness responded,

This one was investigated * * * for the Department to determine whether or not criminal charges should be filed against the driver of the tractor/trailer, the semi.

Respondents' counsel then asked, "No criminal charges were filed, correct?" Appellants objected, and out of the jury's hearing, respondents' counsel explained that he had expected the witness to answer that the accident was investigated because it was a death case; the question was intended to show that the police performed a prompt, thorough investigation. The trial court sustained appellants' objection and remarked in the jury's presence:

Counsel, will you not bring up any other type of action in this action. And also the jury should disregard the statement of counsel [4] or the question of counsel.

The trial court thus gave a curative instruction in substance. The trial court also offered to further instruct the jury if the attorneys could stipulate to an instruction, but the subject did not arise thereafter.

3. Evidentiary Rulings

a. Admission of Training Manual

The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and will not be disturbed absent an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Over appellants' objection, the trial court received into evidence a defensive driving manual offered by Rask's employer on the issue of negligent training. Testimony revealed that Rask's employer used this manual in teaching safety meetings, although there was no evidence that Rask attended any meeting at which the manual was used. We conclude that the trial court did not abuse its discretion in admitting the evidence. Appellants' objection goes more to the weight of the evidence than to its admissibility.

b. Scope of Expert Testimony

Evidentiary rulings, including decisions to exclude expert testimony, remain within the broad discretion of the trial court and will not be overturned absent an abuse of discretion. Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990). Before error in the exclusion of evidence becomes grounds for a new trial, it must appear that the evidence, had it been admitted, might reasonably have changed the result of the trial. Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983).

The trial court refused to permit appellants' accident reconstructionist to testify that Oliver had not violated Minn. Stat. ' 169.18 (passing on the right). [5] Expert testimony is admissible if it is helpful to the jury. Minn. R. Evid. 702. An expert can testify to the ultimate issue to be decided by the jury. Minn. R. Evid. 704.

The trial court ruling can be supported on the basis of lack of foundation. The witness, a Minneapolis Police officer not acting in that capacity with respect to this case, had been hired by appellants as a consultant to do a reconstruction of the accident. He neither was present when the accident occurred, nor did he participate in the subsequent accident investigation. As respondents argue, the jury could use its common sense and apply the law to the facts without need for expert testimony. We conclude that the trial court did not abuse its discretion in denying expert testimony as to whether Oliver had violated the law.

4. Combination of Errors

Appellants argue that even if the errors individually were insufficiently prejudicial to warrant a new trial, they were cumulatively sufficient, given respondents' failure to comply with discovery requests and alleged perjury. See Lamb v. Jordan, 333 N.W.2d 852, 857 (Minn. 1983) (combination of errors warranted new trial). While we recognize that this was not a model trial, we find no cumulative effect of error sufficiently prejudicial to require a new trial. See Gum v. Medcalf Orthopaedic Appliance Co., 380 N.W.2d 916, 920 (Minn. App. 1986) (trial need not be perfect).

5. Denial of Attorney Fees and Sanctions

Appellants claim that the trial court erroneously denied its request for attorney fees and sanctions. An appellate court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng'g, 401 N.W.2d 655, 661 (Minn. 1987). Appellants argue that respondents violated numerous pretrial and trial orders and discovery requests. The court awarded appellants at least $500 attorney fees as a sanction. While we may have decided differently, we cannot say that the trial court abused its broad discretion in denying appellants' request for further sanctions and additional attorney fees.

6. Addition of Punitive Damages Claim

Respondents filed a notice of review asserting that the trial court erred by allowing appellants to add a claim for punitive damages during trial. Because the jury found that respondents were not negligent, the case never reached the punitive damages phase. In view of our holding, we need not address this issue.

Affirmed.


Footnotes

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

[1]The jury determined that Oliver's family was damaged in the amount of $750,000. Nothing related to damages is at issue on appeal.

[2]Respondents argue that appellants waived this argument because the statute was included on appellants' list of requested jury instructions. We disagree. Appellants made a motion in limine requesting that an instruction on this statute not be given; they objected again during trial.

[3]Appellants' argument that this was the last instruction read to the jury distorts the record. It was the second to last instruction read before closing arguments. Additional instructions were then given after closing arguments. Moreover, the judge instructed the jury that "[t]he order in which the instructions are given is of no significance."

[4]Presumably the court meant "the witness."

[5] Appellants' reconstructionist was permitted to testify that Oliver was not negligent.