This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-839

Roger Johnson as trustee for the

heirs and next of kin of

Jason Alvin Johnson, deceased,

Appellant,

vs.

Sherry Jo (Mades) Hawkins, et al.,

Respondents.

Filed December 23, 1997

Affirmed

Foley, Judge**

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

Houston County District Court

File No. C7-95-193

Mark M. Walbran, Walbran, Walbran, Furness & Leuning, P.O. Box 273, Owatonna, MN 55060; and

Jeffrey A. Hanson, Dunlap & Seeger, P.A., P.O. Box 549, Rochester, MN 55903-0549 (for appellant)

James T. Martin, Dan T. Ryerson, Gislason, Martin & Varpness, P.A., 7600 Parklawn Ave. S., Suite 444, Edina, MN 55435 (for respondents)

Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Foley, Judge.

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

FOLEY, Judge

Appellant Roger Johnson challenges the trial court's order denying his motion for a new trial, following a jury trial in a wrongful death suit. We affirm.

FACTS

Thirteen-year-old Jason Johnson was killed when he rode his bicycle into the path of an automobile driven by respondent Sherry Jo (Mades) Hawkins. Appellant, Jason's father, initiated a wrongful death suit against respondent and her father, the owner of the automobile.

A jury trial was held. While cross-examining appellant's expert witness, respondent's counsel asked the witness about two investigative reports that had not been introduced into evidence. When first questioned, there was no objection by appellant. The second time the question was asked, appellant objected, claiming hearsay and lack of proof that the witness had relied on the reports in forming his opinion.

At the close of the trial's evidentiary phase, the trial court issued jury instructions, including JIG 110, the "emergency rule" instruction, and a modified version of JIG 301, explaining the motorist's common law duty of care. Respondent's counsel objected to the modification of JIG 301, arguing that it appeared to contradict JIG 110. To clarify the relationship between the two instructions, the trial court orally instructed the jury that

[JIG 110 and JIG 301] actually are not contradictory * * *. If you find there was sudden emergency within the terms of that instruction, then you would find that a person did not violate [JIG 301], if, however, you find that it was not a sudden emergency under these circumstances, then * * * you could find that the motorist had violated [JIG 301].

Appellant made no formal objection to the supplemental instructions when they were delivered. The written jury instructions were given to the jury for reference in the jury room during deliberation. The supplemental oral instructions were not reduced to writing and given to the jury for reference during deliberations; nor did the jury request further instructions during deliberations.

The jury found that Jason's negligence was the sole cause of the accident that resulted in his death. Appellant moved for a new trial, arguing that the supplemental jury instructions were inaccurate as a matter of law and that respondent's counsel had improperly cross-examined appellant's expert witness. The trial court denied appellant's motion. This appeal followed.

D E C I S I O N

A new trial may be granted to correct misconduct by the prevailing party, or errors of law occurring at trial. Minn. R. Civ. P. 59.01(b), (f). Where jury instructions fairly and correctly state the applicable law, a new trial should not be granted. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). Jury instructions are examined as a whole to determine whether they are confusing or misleading. Kronebusch v. MVBA Harvestore Sys., 488 N.W.2d 490, 495-96 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

Appellant argues that the supplemental oral instructions created the appearance that JIG 110 and JIG 301 are antithetical, when in fact they are complementary. We disagree. The written jury instructions clearly and accurately conveyed respondent's duty to exercise ordinary care even when confronted by a sudden emergency. Because the supplemental jury instructions were not reduced to writing, the possibility that those instructions confused or misled the jury is minimal. The jury did not seek additional guidance from the trial court, so there is no indication that the jurors misunderstood any portion of the instructions. When the jury instructions are examined as a whole, they comprise an accurate statement of the law. There was no reversible error.

"Misconduct of counsel does not warrant a new trial unless the misconduct clearly resulted in prejudice to the losing party." Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974). The decision to grant a new trial because of attorney misconduct rests almost entirely within the discretion of the trial court. Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 785 (1975). Because the trial court judge "is present during the trial and is best positioned to determine whether or not an attorney's misconduct has prejudiced the jury," this court yields to the trial court absent a clear abuse of discretion. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).

There is no indication that appellant was prejudiced by the conduct of respondent's counsel. In denying appellant's new trial motion, the trial court noted that the question, although stated in an improper manner, was harmless to the final outcome of the case. The trial court did not abuse its discretion in reaching this conclusion or in denying Johnson's motion for a new trial.

Affirmed.