This opinion will be unpublished and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
Huong Thi Nguyen,
Dang Van Le,
Truong Huu Do,
Filed November 26, 1996
Nobles County District Court
File No. C594283
James E. Malters, Von Holtum, Malters & Shepherd, P.O. Box 517,
Worthington, MN 56187-0517 (for Huong Thi Nguyen)
Kenneth R. White, Farrish, Johnson & Maschka, P.O. Box 550, Mankato, MN
56002-0550 (for Dang Van Le)
Gregory E. Kuderer, Dale A. Hansen, Erickson, Zierke, Kuderer & Madsen,
P.A., P.O. Box 571, Fairmont, MN 56031-0571 (for Truong Huu Do)
Considered and decided by Randall, Presiding Judge, Short, Judge, and Davies,
U N P U B L I S H E D O P I N I O N
The defendants in this automobile negligence case appeal from an order denying
their posttrial motions for JNOV or a new trial. We affirm.
Appellant/respondent Truong Huu Do and appellant/respondent Dang Van
Le, employees at a Worthington plant, were involved in a year-long acrimonious
relationship, which erupted into an altercation involving vehicles and resulted
in serious injuries to another co-worker, respondent Huong Thi Nguyen.
During and after work on the evening of the injury, Do taunted Le and then
proceeded to "play chicken" with him on the highway. Do eventually slammed on
his brakes, forcing Le to stop. Others pulled Le from his van and Do assaulted
him. After he returned to his van, Le rammed the van into Do's truck, striking
Nguyen (who was outside Do's truck), severely injuring her.
Nguyen sued Do and Le for negligence. At the close of trial, the jury
apportioned 60 percent of the liability to Do and 40 percent to Le. Both men
now appeal from the denial of their posttrial motions, claiming that numerous
errors require reversal.
D E C I S I O N
On appeal from an order denying a motion for JNOV, this court "must
affirm 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). "'Unless the evidence is practically conclusive against the
verdict, we will not set the verdict aside.'" Id. (quoting
Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 365
(Minn. 1979)). Similarly, in reviewing an 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 * * * ." Zum Berge v. Northern States Power
Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citing Mervin v.
Magney Constr. Co., 399 N.W.2d 579, 584 (Minn. App. 1987)),
review denied (Minn. Apr. 29, 1992).
I. Sufficiency of Evidence
Do contends that the court erred in denying his JNOV motion because
there is no support for the jury's conclusion that his driving affected Le's
conduct or played a role in the accident. Contrary to Do's assertion,
competent evidence supports the proposition that Do's aggressive driving
affected Le and played a role in the accident. Indeed, Le testified that he
was "[v]ery afraid," when Do nearly hit him with his truck. Later on, as Le
described Do's driving, he answered affirmatively when asked whether he was
concerned for his safety. When he was again asked, "Was [Do's] use of his
motor vehicle continuing to make you be scared?," he answered, "Yes."
II. Superseding Intervening Cause
Do argues that Le's conduct acted as an intervening,
superseding action breaking Do's causal link to the injury.
"[A] superseding, intervening cause is an act of plaintiff or of a third
person, in no way caused by defendant's negligence, or a force of nature,
occurring after defendant's negligent act or omission and
operating as an independent force to produce the injury."
Hafner v. Iverson, 343 N.W.2d 634, 637 (Minn. 1984) (quoting
Medved v. Doolittle, 220 Minn. 352, 357, 19 N.W.2d 788, 791
(1945)) (overruled on other grounds). Do's argument necessarily fails, for the
jury specifically found that Do's conduct was a direct cause of the accident.
The evidence supports this conclusion.
Do claims that the verdict against him cannot stand because he
could not have foreseen that his driving might lead to the accident. His
argument fails, for competent evidence admitted at trial tends to sustain a
finding of foreseeability. For instance, the evidence shows that Do
intentionally drove erratically, and that Nguyen, a passenger in his truck, was
terrified and begging him to stop. Thus, it was not out of the realm of
possibility that Nguyen would attempt to exit Do's truck, or that she would be
injured while doing so.
IV. "Excited Utterance" Statements
Do next contends that the trial court erred in allowing an
investigating officer to testify, under the "excited utterance" exception to
the hearsay rule, Minn. R. Evid. 803(2), regarding statements unidentified
persons made at the scene. It is undisputed, though, that the atmosphere at
the accident scene was one of commotion and hysteria--ripe for excited
utterances. Thus, the record supports the court's evidentiary ruling.
V. Closing Argument
Lastly, Do argues that in closing argument Nguyen's counsel
made several improper and prejudicial comments regarding the men's past
dealings (e.g., referring to "Do's bullying").
A trial court's response to improper remarks in closing argument "is governed
by no fixed rules but rests almost wholly in [its] discretion * * *."
Connolly v. Nicollet Hotels, 258 Minn. 405, 407, 104 N.W.2d 721,
724 (1960). The district court has discretion in determining whether a
curative instruction is appropriate to correct erroneous statements in closing
Poston v. Colestock, 540 N.W.2d 92, 93 (Minn. App. 1995),
review denied (Minn. Jan. 25, 1996).
The trial court, for two reasons, refused to instruct the jury to disregard
the earlier events and to focus only on the driving conduct. First, the
verdict form--which specifically asked whether Do was "negligent in the
operation of his vehicle on December 1, 1993, at the time of the
accident"--limited the jury's negligence and causation determinations to Do's
driving behavior. Second, which party initiated contact between the vehicles
was a question inextricably interwoven with the events occurring earlier that
day. Do, too, had every opportunity in his summation to argue this point.
Thus, the court acted within its discretion in denying Do's request for a
VI. Self-Defense Theory
Appellant Le contends that the trial court erred in refusing
to submit the issue of self-defense to the jury. We cannot set aside the
verdict on this basis, for Le's admission that his negligence caused the
accident and other evidence support the court's resolution of this issue. But
even if such an instruction should have been given, the failure to do so would
have been nonprejudicial because an instruction on the emergency doctrine was
given. It covered all aspects of the self-defense claim that could be