This opinion will be unpublished and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

C5-96-865

C3-96-895

Huong Thi Nguyen,

Respondent,

vs.

Dang Van Le,

Respondent (C5-96-865),

Appellant (C3-96-895),

Truong Huu Do,

Appellant (C5-96-865),

Respondent (C3-96-895).

Filed November 26, 1996

Affirmed

Davies, Judge

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, Judge.

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

DAVIES, Judge

The defendants in this automobile negligence case appeal from an order denying their posttrial motions for JNOV or a new trial. We affirm.

FACTS

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.

III. Foreseeability

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 argument.

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 curative instruction.

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 relevant.

Affirmed.