may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Pamela J. Solstad, et al.,
Filed September 9, 1997
Hennepin County District Court
File No. PI952249
Mary M. Kruse, Post Office Box 64885, St. Paul, MN 55164-0885 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.
On appeal from final judgment, appellant DeWayne Manson contests the trial court's directed verdict in favor of respondent Pamela J. Solstad in this comparative fault case. Manson also seeks a new trial because respondent's counsel mentioned insurance during closing argument.
This case arose out of a two-car accident in Corcoran, Minnesota. At the time of the accident the weather was sunny with a few clouds, and the road was clear and dry. Solstad was traveling at or below the posted speed on County Road 19, a flat, black-topped, through highway. Manson was on County Road 50, which intersects County Road 19. Traffic on County Road 50 must stop where 50 and 19 intersect. Manson stopped, looked both ways, and believing no cars were approaching, entered the intersection. Solstad had no time to brake or swerve before he struck Manson in the middle of the intersection. The trial court directed a verdict for Solstad, determining that she was not contributorily negligent. The remaining issues were submitted to the jury. The jury returned a verdict for Solstad.
D E C I S I O N
1. In reviewing a directed verdict, this court "make[s] an independent determination of the sufficiency of the evidence to present a fact question to the jury." Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983). A directed verdict may be appropriate when a party presents inconclusive circumstantial evidence and a contrary verdict would be based on speculation. Howie v. Thomas, 514 N.W.2d 822, 825 (Minn. App. 1994). In reviewing a directed verdict, this court will consider only evidence introduced at trial. Abbett v. County of St. Louis, 474 N.W.2d 431, 434 (Minn. App. 1991).
Manson claims the evidence presented a fact question as to whether Solstad was contributorily negligent. We disagree. He alleged Solstad was speeding and that she failed to keep a proper lookout. Manson admitted, however, that he saw the car only seconds before the collision and had no idea how fast Solstad was travelling The trial court found that there was no evidence to support his claim, and that his claims were purely speculative. We agree with the trial court that any verdict including a finding of comparative fault would have been based on speculation and not evidence. See Howie, 514 N.W.2d at 825 (directed verdict may be proper where circumstantial evidence sustains inconsistent inferences); See Abbett, 474 N.W.2d at 434 (directed verdict appropriate where jury could only speculate). Caselaw also supports a directed verdict under the facts of this case. See, e.g., Buck v. Dibble, 281 N.W.2d 724, 728 (Minn. 1979) (defendant had unobstructed view yet did not look or did not see vehicle in plain sight); Martin v. Bussert, 292 Minn. 29, 31-32, 193 N.W.2d 134, 135-36 (1971) (accident occurred on dry, sunny afternoon where both drivers had unobstructed view yet defendant did not see plaintiff). Furthermore, a driver generally will not be found contributory negligent when he or she is driving at the posted speed limit on a through street, sees a stopped car at a controlled intersection, and continues at the same rate of speed through the intersection. Schleuder v. Soltow, 239 Minn. 453, 458-59, 59 N.W.2d 320, 324 (1953). The trial court did not err in directing a verdict on the issue of comparative fault.
2. Appellant also claims the trial court erred by denying his motion for a new trial. The decision to grant a new trial due to improper argument is generally within the trial court's discretion. Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989). Three prerequisites must be met before improper argument compels a new trial: (1) the party must object to the remarks; (2) the party must request a curative instruction; and (3) the curative instruction must have been refused. Hake v. Soo Line Ry. Co., 258 N.W.2d 576, 582 (Minn. 1977). The primary consideration in determining whether to grant a new trial for improper remarks is prejudice. Janssen v. Neal, 302 Minn. 177, 182, 223 N.W.2d 804, 807 (1974).
Minnesota statutes make it clear that "[t]he jury shall not be informed of the existence of collateral sources or any future benefits which may or may not be payable to the plaintiff." Minn. Stat. § 548.36, subd. 5 (1996). Solstad's counsel twice told the jury that, should they decide to award plaintiff damages, Solstad would not receive double compensation because insurance had already paid. Manson argues that the jury inflated its award because of these remarks. Solstad's counsel alleges it was proper to comment on insurance because there were references to insurance in the medical records, which were exhibits at trial.
The statute expressly leaves consideration of collateral sources to the trial court. Minn. Stat. § 548.36, subd. 2 (1996). Counsel's reference to insurance in final argument was clearly improper. However, the trial court recognized this, and as a result, gave a curative instruction. Further, this court cannot say that the damages awarded so greatly exceeded adequate compensation as to be accounted for on no other basis than that of passion or prejudice. Hake, 258 N.W.2d at 582 (citation omitted).
Therefore, although it was improper for counsel to mention insurance in his final argument, the trial court's instruction was sufficient to cure any possible improper inferences by the jury. We conclude that the trial court did not abuse its discretion by denying the motion for a new trial.