This opinion will be unpublished and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

C3-96-458

Erin J. Seitz, a minor by Judith Seitz,

her mother and natural guardian; and

Judith Seitz individually,

Respondents,

vs.

Grandma's, Inc. d/b/a Grandma's Saloon and Deli,

defendant and third-party plaintiff,

Appellant,

Lawrence Jones,

Defendant and Third-Party Plaintiff,

vs.

James Seitz, third-party defendant,

Respondent.

Filed December 3, 1996

Affirmed

Huspeni, Judge

St. Louis County District Court

File No. C791602480

Robert G. Haugen, Michelle Gill Murray, Johnson & Lindberg, P.A., Suite 1610, 8500 Tower, 8500 Normandale Lake Blvd., Minneapolis, MN 55437 (for Appellant)

Steven L. Reyelts, Aaron R. Bransky, Halverson Watters Downs Reyelts & Bateman, Ltd., 700 Providence Bldg., Duluth, MN 55802 (for Respondent James Seitz)

Gerald J. Brown, Brown, Andrew, Signorelli & Zallar, P.A., 300 Alworth Bldg., Duluth, MN 55802 (for Respondents Erin and Judith Seitz)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Foley, Judge.[*]

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

HUSPENI, Judge

Respondent Erin Seitz, a minor, was injured when a van ran over her foot while she and her parents were working as volunteers at a marathon sponsored by appellant. A jury determined that respondent's father was not liable, but that appellant and the driver of the van were liable and awarded damages against them. Appellant challenges the denial of its motion for a new trial or for remittitur. Because we see no abuse of discretion in the denial of the motion, we affirm.

FACTS

Appellant Grandma's, Inc. sponsors an annual marathon on Scenic Highway 61 between Duluth and Two Harbors. The 1986 marathon began with runners leaving Two Harbors at 9:00; the highway was "closed" to motorists except for race officials and volunteers from 7:00 a.m. on, but there were no barricades to prevent vehicles from entering the road and no police to require that motorists leave it.

Scott Keenan, an employee of Grandma's, was the race director. In previous years, he had travelled the racecourse ahead of the runners to ensure that traffic control measures were in place. In 1986, however, Keenan ran the marathon himself, and no one checked the course for traffic control measures.

Lawrence Jones, who lived on Scenic Highway 61, left his home shortly before 9:00 a.m. and began driving south along the highway. When he saw a large number of people on the highway, he reduced his speed, but he did not turn off the highway.

Respondents James and Judith Seitz and their two daughters, Katy, aged 10, and Erin, aged 8, were working as volunteers setting up a water station. At 8:55, Erin stepped out onto the road from behind her father's truck, saw Jones's van approaching, and turned. The van ran over the heel of her right foot. She has had numerous surgeries, including skin grafting. Her foot and leg are permanently deformed.

Erin Seitz, through her mother Judith, brought this action. Following a four-day trial, the jury returned a verdict finding that Grandma's was 72.5% negligent, that Jones was 27.5% negligent, and that neither Erin nor James Seitz was negligent and awarding Erin Seitz $250,000 for previous pain and suffering and $400,000 for future pain and suffering.

Grandma's and Jones moved for a new trial or for remittitur; their motions were denied. Grandma's appeals, arguing that the trial court abused its discretion in denying a new trial on the issue of liability, in instructing the jury on the duties of an organizer of a closed-course marathon, and in denying a new trial on the issue of damages or alternatively remittitur.

D E C I S I O N

I. Liability

Standard of Review

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 the light most favorable to the verdict. ZumBERGE v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

Appellant cites Lamb v. Jordan, 333 N.W.2d 852 (Minn. 1983) (remanding for a new trial because no evidence was found to support the verdict), and Sikes v. Garrett, 262 N.W.2d 681, 682 (Minn. 1977) (affirming judgment notwithstanding the verdict because evidence did not sustain the verdict), to argue that the jury's verdict is contrary to the evidence because evidence showed James Seitz was negligent. Both cases are distinguishable.

In Lamb, the jury believed Lamb's story that he made cash advances to Jordan. The Supreme Court found that Lamb's story was "contradicted by logic and other evidence at almost every point," that it had "been fabricated," that it was "at odds with the allegations of his complaint," that there was no corroborating evidence, and that it did not "seem credible." Lamb, 333 N.W.2d at 856. Sikes concerned a jury verdict that plaintiff, the rider of a bicycle that collided with a car, was less negligent than defendant, the driver. The district court's grant of judgment notwithstanding the verdict was affirmed because evidence showed that the plaintiff "created the dangerous situation by his own actions"; he placed his bicycle "between defendant's car and the curb * * * without an obvious view of [the car's] turn signal * * *"; he failed to take "adequate steps to ascertain the path of the car"; and he made the driver's "view [of the bicycle] impossible." Sikes, 262 N.W.2d at 683. In both Lamb and Sikes the evidence manifestly failed to support the jury verdict.

Here, ample evidence supports the jury verdict that James Seitz was not negligent. The jury heard testimony that James Seitz told Erin she shouldn't have to worry about traffic because he expected only authorized vehicles, travelling very slowly, to be on the road, but that she should be cautious. The jury also heard testimony that other marathon volunteers who had children with them did not believe the racecourse would present traffic hazards for children. The jury's finding that James Seitz used "the care a reasonable parent would use under the circumstances" was not manifestly and palpably against the evidence.

Appellant also argues that the jury was moved to passion and prejudice by testimony on Erin Seitz's medical treatment and speculates that the jury found James Seitz was not negligent because it did not want him to harbor guilt for having caused Erin's injury. James Seitz testified that Erin screamed in pain, that she had to be given Demarol before a procedure the nurses described as one of the most painful procedures they knew of, and that he and his wife had been asked to leave the hospital floor during that procedure. While this testimony was, as appellant notes, "compelling," there is no support for the theory that it caused the jury to find James Seitz not negligent. There was no abuse of discretion in denying a new trial on the ground that the evidence did not support the verdict.

II. Jury Instructions

Standard of Review

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). The instructions will withstand scrutiny as long as the charge as a whole conveys to the jury a clear and correct understanding of the law. Cox v. Crown Coco, Inc., 544 N.W.2d 490, 497 (Minn. App. 1996). An error in jury instructions is prejudicial and requires a new trial only if it leads to a verdict not supported by the evidence. See Kirsebom v. Connelly, 486 N.W.2d 172, 175 (Minn. App. 1992) (held it was "reasonably likely" that the jury would have reached a different result if it had been differently instructed).

The jury was instructed that:

The organization or individuals who organize a closed-course marathon race event upon a public highway have a duty to exercise reasonable care for the safety of volunteers and other persons who might reasonably be expected to be exposed to risk of harm as a result of the event.

Appellant objects to this instruction on several grounds. First, appellant argues that because it is not in the JIG, it has no basis in the law. However, appellant cites no support for the view that only specific instructions already in the JIG may be used, or that if specific instructions from the JIG are used, other instructions may not be added.

Second, appellant asserts that it is reasonably likely that the jury would have reached a different verdict if it had not been instructed on the duties of race organizers. However, the jury was instructed on the duty of a parent and found James Seitz was not negligent; it was also instructed on reasonable care when children are known to be in the vicinity and found Lawrence Jones was negligent. It cannot be inferred that instructing the jury in regard to a particular duty led it to make a particular finding.

Third, appellant argues that the instruction was too specific, citing Fallin v. Maplewood-North St. Paul District No. 622, 362 N.W.2d 318 (Minn. 1985), and Clark v. Miller, 378 N.W.2d 838 (Minn. App. 1986), review denied (Minn. Mar. 4, 1986). Neither case is persuasive on the issue here. Fallin holds that the failure to give a specific instruction on the plaintiff's four theories of negligence in addition to the general instruction on negligence did not warrant reversal. Fallin, 362 N.W.2d at 322. Clark, a medical malpractice case, remanded for a new trial on liability because the court declined to instruct the jury specifically on a patient's right to limit a doctor's authority to operate. Clark, 378 N.W.2d at 847. Clark thus promotes rather than refutes the giving of a specific instruction. Because the duty of race organizers was a crucial element of this case, instructing the jury on it was not reversible error.

Fourth, appellant claims the court erred in using the term "closed course" in the instruction, arguing that the term implied that appellant's standard of care included achieving a traffic-free race course. However, the jury had heard testimony that a race is "closed course" when racers do not share the highway with vehicular traffic, and the jury was instructed that the duty of race organizers is to exercise reasonable care for the safety of volunteers. There is no reason for the jury to have inferred from this instruction that appellant had a duty to achieve a traffic-free course.

Because the jury instruction on the duty of race organizers conveyed a clear and correct understanding of the law, there was no abuse of discretion in declining to use it as a basis for awarding a new trial.

III. Damages or Remittitur

Standard of Review

The discretion to grant a new trial on the ground of excessive damages rests with the trial court, whose determination will only be overturned for abuse of that discretion.

Advanced Training Sys. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984). "The trial judge has 'large discretion' in determining if damages are excessive and whether the cure is a remittitur or a new trial." Hanson v. Chicago, Rock Island & Pac. R.R., 345 N.W.2d 736, 739 (Minn. 1984).

Appellant challenges the award of $400,000 for future damages, citing Tanski v. Jackson, 130 N.W.2d 492, 497 (Minn. 1964) (holding that a new trial or remittitur is appropriate when injuries are substantially healed, the disability slight, the special damages relatively small, and the interference with normal activities small). The facts here are readily distinguishable: Erin Seitz showed the jury her injured foot and testified that she is unable to participate in sports, walk for any significant time or distance, or wear any shoes other than tennis shoes or sandals. Medical testimony indicated that little if anything can be done to improve her condition. Given her youth, the trial court did not abuse its discretion in holding that the jury's award of future damages was not excessive.

There was no abuse of discretion in the denial of the motion for a new trial on liability or on damages or for remittitur.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.