This opinion will be unpublished and

may not be cited except as provided by

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




Stephanie Lee Marxen,



Lissa Marie Marquette, et al.,


Filed March 3, 1998


Foley, Judge**

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

Hennepin County District Court

File No. PI-96-1886

Richard D. Allen, 2310 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Eric J. Magnuson, Jennifer A. Kraft, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Foley, Judge.


FOLEY, Judge

Appellant Stephanie Lee Marxen challenges a trial court order denying her motion for JNOV or a new trial. Marxen appeals, arguing (1) the finding of no negligence on the part of respondent Lissa Marie Marquette in rear-ending appellant's automobile is perverse and contrary to the evidence, and (2) the jury's failure to award damages for pain and suffering was error. We affirm.


On June 22, 1993, Marxen was traveling on Highway 394 in stop-and-go traffic during the morning rush hour. Marxen testified that she came to a complete stop behind a sport utility vehicle and was then struck from behind by a vehicle driven by Marquette. Marxen claimed that the impact from the accident propelled her vehicle into the rear end of the vehicle in front of her, causing her car to be totaled.

Marquette testified, however, that the traffic was heavy and she was traveling only 5-10 miles per hour. Marquette stated that she became distracted and began looking ahead to see what was causing the traffic to stall. She testified that the brake lights of Marxen's vehicle came on very suddenly and she applied her brakes very hard; veering her car to the right to avoid impacting Marxen's car. Marquette's left front bumper, however, hit the right rear corner of Marxen's vehicle.

After the accident, all three vehicles moved to the side of the road and a state trooper arrived at the scene. Although she claimed injury, Marxen refused medical treatment at the scene. The trooper testified that Marxen's vehicle was totaled and noted that Marquette's vehicle sustained only front-end damage. Marquette testified that she did not notice any damage to the rear of Marxen's vehicle. In his accident report, the trooper reported Marxen's account that the impact from Marquette's vehicle pushed her into the rear end of the vehicle in front of her. The jury verdict suggests that the jury followed Marquette's theory that, viewing the physical damage to the vehicles, Marxen's vehicle hit the sport utility vehicle ahead of it before there was any contact by Marquette.

At trial, the jury found that Marquette was neither negligent in operating her vehicle, nor the direct cause of the accident. The jury then determined that Marxen did not sustain permanent injury as a result of Marquette's vehicle rear-ending Marxen's vehicle. Marxen was awarded $925.75 for medical expenses related to the accident, but zero for lost earnings or pain and suffering. Marxen moved for a Schwartz hearing. The motion was denied. She then moved for JNOV or, alternatively, a new trial. This motion was also denied and this appeal followed.


Granting JNOV is a pure question of law, subject to de novo review. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979). JNOV will be denied if there is any competent evidence reasonably tending to sustain the verdict. Rettmen v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). Similarly, on appeal from a denial of a motion for 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).

Marxen argues the trial court erred by concluding there was sufficient evidence to support the jury verdict that Marquette was not negligent in operating her vehicle when she rear-ended Marxen's vehicle. Marxen contends that Marquette's admission that she was distracted conclusively proves her negligence, thereby making the jury verdict perverse and contrary to this evidence, which she construes as "undisputed." She claims, therefore, that the trial court erred in failing to grant JNOV and in denying her motion for new trial.

Although a rear-end collision may suggest negligence, it does not dictate it. Fontilla v. Boyes, 256 N.W.2d 248, 249 (Minn. 1977). Minnesota law contains no "hard and fast rules" about how close or how slow a driver must proceed to exercise ordinary care. Martinco v. Hastings, 265 Minn. 490, 500, 122 N.W.2d 2d 631, 640 (1963). These cases are determined on an individual basis. Id. However, the degree of care required in any given driving situation, and whether a driver used such care, are questions for the jury. Id. The jury must also determine whether a driver's error in judgment that causes a rear-end collision constitutes negligence. Connaker v. Hart 275 Minn. 289, 291, 146 N.W.2d 607, 609 (1966) (mere fact of rear-end collision does not establish negligence). Whether there are circumstances that excuse a driver's averting his eyes from traffic for a short interval is also a question for the jury. Rome v. Rome, 307 Minn. 207, 209, 239 N.W.2d 232, 234 (1976).

At the close of evidence, the jury concluded that Marquette was not negligent. In denying Marxen's subsequent motions for JNOV or new trial, the court concluded there was ample evidence to support the jury verdict.

On our de novo review of the record, we believe the trial court's determination to be correct. Both Marquette and the trooper testified that Marxen's vehicle did not sustain any rear-end damage. Marquette also testified that she was traveling no more than 5-10 miles per hour. Front-view photos presented to the jury show minimal damage to Marquette's vehicle, but show severe front-end damage to Marxen's car. Furthermore, we are directed to no case law to support Marxen's contention that Marquette's admission of a momentary distraction and subsequent rear-end accident constitutes negligence per se. See Rome, 307 Minn. at 209, 239 N.W.2d at 234. We conclude, therefore, that this evidence was sufficient to allow the jury to find that Marquette was neither negligent in operating her vehicle, nor responsible for the severe damage to Marxen's car. See Connaker, 275 Minn. at 291, 146 N.W.2d at 609. Even if it could be argued soundly that Marquette was negligent in looking away momentarily, direct cause was not established.

Because we believe the trial court acted properly in denying JNOV and a new trial, we do not reach the damages issue.

We also observe that the trial court noted that Marxen's motion for a Schwartz hearing was improper and refused consideration. At oral argument, Marxen's counsel made much of the fact that the jury verdict was contrary to the evidence. Counsel, however, was unable to articulate any instances of juror misconduct. See Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262-63 (Minn. 1977); accord State v. Anderson, 379 N.W.2d 70, 80 (Minn. 1985) (Schwartz hearing only required when petitioner establishes, beyond mere speculation, prima facie case of jury misconduct). Absent any evidence to support Marxen's allegations of misconduct, the trial court did not abuse its discretion in denying the motion for a Schwartz hearing.