This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1477

Rebecca L. Hetzler,

Appellant,

vs.

State Farm Mutual Automobile Insurance Company, et al.,

Defendant and Third-Party Plaintiffs,

vs.

Bennie Lee Miller,

third-party defendant,

Respondent.

Filed February 18, 1997

Affirmed

Huspeni, Judge

Hennepin County District Court

File No. 9111077

Lisa K. Morley, David J. Moskal, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, Minneapolis, MN 55402 (for Appellant)

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402 (for Respondent)

Considered and decided by Norton, 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

Appellant challenges the jury's special verdict findings of no negligence on the part of both respondent, whose car rear-ended appellant, and the individual whose car may have rear-ended respondent. Because this verdict is reconcilable with the evidence viewed in the light most favorable to the verdict, we affirm.

FACTS

Respondent Bennie Miller's car rear-ended appellant Rebecca Hetzler's car. Miller claimed that immediately before the impact, his car had been rear-ended by Boyd Woods's van. Hetzler brought an action against Woods, alleging that he was liable because the impact of his van on Miller's vehicle caused Miller to rear-end Hetzler.[1] Woods sued Miller as a third-party defendant, claiming that Miller's negligence caused the damage to Hetzler. At trial, Miller testified that he rear-ended Hetzler because Woods's van rear-ended him, pushing him into Hetzler's car. Woods testified that he did not rear-end Miller.

The jury returned a special verdict finding that neither Woods nor Miller was negligent. Hetzler moved for a new trial on the grounds that the special verdict was not justified by the evidence and appeals from the denial of that motion.

D E C I S I O N

"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). "Where a jury verdict involves conflicting evidence, an appellate court must consider the evidence in a light most favorable to the verdict and sustain that verdict if possible, on any reasonable theory of evidence." Dang v. St. Paul Ramsey Medical Ctr., Inc., 490 N.W.2d 653, 659 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).

Hetzler argues that finding neither Woods nor Miller negligent was manifestly and palpably contrary to the evidence because the collision between herself and Miller indisputably happened. Hetzler claims that the jury could either have found Woods negligent for rear-ending Miller and pushing him into her car, or could have found Woods not negligent and Miller negligent for rear-ending her without having been pushed, but could not have found that neither Miller nor Woods was negligent. We disagree.

The fact that an accident happened is not ipso facto proof of negligence.[2] A jury may return a verdict of no negligence for all parties in a case where each party asserts that the negligence of the other was the cause of the accident. Markowitz v. Ness, 413 N.W.2d 843, 846 (Minn. App. 1987). Where a jury returns a verdict of no negligence for any party, it simply means the jury concluded no party has sustained its burden of proof. Peterson v. Minneapolis Star & Tribune Co., 282 Minn. 264, 270-71, 164 N.W.2d 621, 626 (1969). There may be situations where the jury reasonably concludes that no party making an affirmative claim proved its case. Id. at 272, 164 N.W.2d at 627. The fact that Miller's car hit Hetzler's car does not mandate a finding that Hetzler proved by a preponderance of the evidence that either Miller or Woods was negligent. Reversing the jury verdict of no negligence would in effect be ruling that as a matter of law either Miller or Woods was negligent. We see no basis for such a ruling.

Hetzler also argues that finding neither Woods nor Miller negligent necessarily implies a finding of an "unavoidable accident." This argument has been explicitly rejected.

Underlying [one party's] argument is an assertion that juries cannot return a verdict finding neither party negligent in an accident case unless the doctrine of "unavoidable accident" applies.

The supreme court has indicated that a jury may return a verdict of no negligence for either party in a case where each party is asserting that the negligence of the other was the cause of the accident[.]

Markowitz, 413 N.W.2d at 846 (citing Peterson, 282 Minn. at 270-71, 164 N.W.2d at 626, and Renzaglia v. Chipman, 298 Minn. 384, 385, 215 N.W.2d 477, 478 (1974)). Here, Miller and Woods each claimed the accident to be the fault of the other. However, the jury's finding that neither was negligent need not be based on the "unavoidable accident" doctrine; the jury was free to find neither had met the burden of proof.

Appellant has not shown that the jury's verdict was manifestly and palpably contrary to the evidence.

Affirmed.

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

[ ]1Hetzler also sued State Farm, alleging that State Farm was liable because an unidentified driver in front of Hetzler contributed to the accident by changing lanes. This claim was dismissed during trial.

[ ]2We note that a rear-end collision in particular is not evidence of negligence. "Characterizing [an accident] as a 'rear end accident' is of little help to [plaintiff's] argument. She still must prove negligence, even if [another party] squarely hit the rear end of her vehicle." Markowitz, 413 N.W.2d at 846.