C0-99-1503

Gina Grzywinski,

Appellant,

vs.

Mark Sandstrom,

Respondent.

Filed ญญญMarch 14, 2000

Affirmed

Harten, Judge

Washington County District Court

File No. CX-98-1896

Paige J. Donnelly, Mark L. Seeger, Paige J. Donnelly, Ltd., 900 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)

James A. Jardine, Votel, Anderson & McEachron, 1250 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

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

HARTEN, Judge

Appellant challenges the denial of her motion for a new trial, arguing that the district court abused its discretion in excluding a witness and that the jury’s verdict is unsupported by the evidence.

FACTS

In December 1995, a car driven by respondent Mark Sandstrom rear-ended a car driven by appellant Gina Grzywinski, who was injured. Lieutenant Sherry Frandrup of the Minnesota State Patrol investigated the collision and took notes, from which she later prepared an accident report.

In February 1999, Frandrup was deposed. She was provided with her accident report to refresh her recollection but testified that she had no independent recollection of the accident and would be unable to recall it except for her notes. Based on this testimony, Frandrup was not allowed to testify at trial, and her accident report was excluded pursuant to Minn. Stat. ง 169.09, subd. 13(5)(b) (1998). The jury returned a special verdict form finding that (1) respondent was not negligent at the time of the accident; (2) appellant suffered no permanent injury as a result of the accident; (3) appellant’s medical and diagnostic expenses were $1,048; and (4) appellant was not entitled to damages for past or future pain, suffering and emotional distress or for future medical expenses. The district court ordered judgment for respondent.

Appellant’s motion for a new trial was denied. She challenges the denial, arguing that Frandrup should have been allowed to testify at trial.

D E C I S I O N

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). The district court refused to permit Frandrup to testify at trial because she had previously stated under oath at her deposition that she had no recollection of the accident independent of her report. The district court also refused to admit the accident report into evidence pursuant to Minn. Stat. ง 169.09, subd. 13(5)(b) (1998): “No report shall be used as evidence in any trial, civil or criminal, arising out of an accident.”

Appellant relies on State v. Schultz, 392 N.W.2d 305 (Minn. App. 1986), to argue that all investigating officers routinely testify by using inadmissible accident reports to refresh recollection. But Schultz is distinguishable; there, both the officer who wrote the report and the witness quoted in the report testified to their independent recollections of the accident. Id. at 306. Here, the officer had no independent recollection. Moreover, Schultz actually reversed and granted a new trial because “the trial court clearly erred in admitting the traffic accident report into evidence.” Id. at 307. Appellant also argues that the document is admissible pursuant to Minn. R. Evid. 803 (5), providing for the admission of

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

Here, the witness now has no recollection, and admission of the report is precluded by statute. She is an incompetent witness as a matter of law. See City of Minneapolis v. Price, 280 Minn. 429, 435, 159 N.W.2d 776, 781 (“[M]emoranda should not be used to refresh a witness’ memory unless it is first ascertained whether the witness can recall the events in question without resort to a memorandum.”). There is no basis for overturning the district court’s exclusion of Frandrup as a witness.

Affirmed.