This opinion will be unpublished and

may not be cited except as provided by

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




Janet Getz,



Barbara Lou Smith,


Filed September 1, 1998


Forsberg, Judge*

Hennepin County District Court

File No. 962431

Steven J. Drummond, Attorney at Law, 908 Broadway, P.O. Box 963, Alexandria, MN 56308; and

Colby B. Lund, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402 (for respondent)

Timothy W. Waldeck, Waldeck & Lind, P.A., 730 TCF Tower, 121 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Forsberg, Judge.



Appellant Barbara Lou Smith contends that the district court erred by directing a verdict on liability in favor of respondent Janet Getz and by admitting an MRI report as a business record. In addition, she contends that the jury's award of damages is excessive and not supported by the evidence. We affirm.


Cars driven by Smith and Getz collided on September 20, 1993. Getz was traveling south on Penn Avenue South in Bloomington. Smith pulled out from a driveway on the west (right) side of Penn Avenue, in an attempt to cross the southbound lanes of the street and turn left to proceed northbound. As Smith's car was perpendicular across the southbound lanes, it was struck by Getz's car.

Getz testified, without contradiction, that she was travelling southbound at 28 miles per hour just before the collision. She was confident that she accurately reported her speed because she noted that she had looked at her speedometer moments before the collision. The speed limit in the area was 35 miles per hour. Smith argued that Getz had an opportunity to stop before the collision, based on Getz's testimony that she saw Smith's car in her path two to three seconds before the crash. Getz testified, however, that, although she immediately applied her brakes when she saw Smith's car blocking her path, there was not enough time for her to come to a complete stop.

Getz and Smith sued each other for property damages and personal injuries. At trial, the district court directed a verdict on liability in favor of Getz after the presentation of both sides' evidence. The jury subsequently returned a verdict awarding $71,625 to Getz. This appeal followed.



The propriety of a directed verdict is a question of law in which the sufficiency of the evidence to present a fact question to the jury is reviewed de novo. Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983). A directed verdict should be granted only where it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or the law. Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). In considering a motion for a directed verdict, the district court must construe the evidence in the light most favorable to the non-moving party. Id. An appellate court reviews the grant of a directed verdict to determine whether the evidence could reasonably sustain a contrary verdict. Northwestern State Bank v. Gangestad, 289 N.W.2d 449, 453 (Minn. 1979).

Here, the district court found that Getz, the driver with the right-of-way, could not, as a matter of law, be found liable for the collision. We must construe the evidence in the light most favorable to the party against whom the directed verdict was issued. Claflin, 487 N.W.2d at 247. Even assuming Getz's estimate that she had two to three seconds to stop was correct, rather than an exaggeration of the available time, as the trial court believed, Smith failed to submit any expert evidence demonstrating that Getz's car was capable of a safe stop in that time. Because of appellant's lack of proof, any conclusion by the jury that Getz could have stopped in time would have been based on improper speculation. The district court correctly granted a directed verdict for Getz because she had the right-of-way and there was no evidence that she was negligent.


Smith contends the district court erred by improperly admitting into evidence a report describing the results of an MRI performed on Getz. A trial judge has broad discretion to admit or exclude evidence. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Similarly, a determination of the sufficiency of the foundation for evidence is within the discretion of the trial court. McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).

Smith appears to argue that the report was hearsay not meeting the requirements of the business records exception. See Minn. R. Evid. 803 (6) (business records admissible as exception to hearsay rule if foundation satisfied). Smith's real evidentiary objection, however, is one of relevancy rather than hearsay. In the order denying a new trial, the trial court held that the report was properly received under the business records exception and did not rule explicitly on relevancy because appellant made no relevancy objection. At trial, Smith objected to admission of the MRI report on the basis that it was not timely disclosed. The argument on appeal is unrelated to any claimed discovery violations. Any relevancy objection is beyond the scope of this appeal because appellant did not present that argument to the trial court and respondent had no opportunity to litigate the issue or cure any defects in the proffered evidence.

Based on the foregoing, we assume that the trial court admitted the MRI report as a business record, as stated in the order denying posttrial motions. Rule 803(6) states that a business record is admissible hearsay if (1) the record was made at or near the time of events or conditions described therein, (2) by or from a person with knowledge of such conditions, (3) if regularly kept (4) in the course of a regularly conducted business. Minn. R. Evid. 803(6). Appellant Smith does not challenge any of these elements of foundation and all elements were met. The report was prepared by a physician the day after creation of the MRI images. Such records are regularly produced and kept in the regular course of business of a radiology clinic. The cases cited by appellant purporting to hold that diagnostic medical or business records may not be introduced into evidence without supporting testimony do not support that proposition.

Because foundation was established, the trial court did not abuse its discretion in admitting the MRI report.


Finally, appellant Smith contends that the jury's award of damages is excessive and unsupported by the evidence. A new trial may be granted on the basis of excessive damages if passion or prejudice influenced the jury's verdict. Minn. R. Civ. P. 59.01(e). The decision to set aside a jury's award on the basis of excessive damages is accorded to the discretion of the trial judge. Omlid v. Lee, 391 N.W.2d 62, 64 (Minn. App. 1986) (citing Kinikin v. Heupel, 305 N.W.2d 589, 596 (Minn. 1981).

Appellant presented no evidence that passion or prejudice influenced the jury's award. The evidence at trial established that Getz continued to experience pain more than four years after the accident and her activities are restricted. The damages awarded by the jury were well supported by the evidence and the trial court did not err in denying a new trial.


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