Child v. Gonda

972 P.2d 425, 354 Utah Adv. Rep. 21, 1998 Utah LEXIS 78, 1998 WL 743724
CourtUtah Supreme Court
DecidedOctober 13, 1998
Docket960249
StatusPublished
Cited by52 cases

This text of 972 P.2d 425 (Child v. Gonda) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Child v. Gonda, 972 P.2d 425, 354 Utah Adv. Rep. 21, 1998 Utah LEXIS 78, 1998 WL 743724 (Utah 1998).

Opinion

RUSSON, Justice.

INTRODUCTION

Dale Child appeals a district court’s final judgment and order in favor of Andria New-som Gonda. Child sued Gonda for wrongfully causing the death of his daughter, Mindy Child, in an automobile accident. The jury found that Gonda was not negligent. Child then moved the district court for a partial judgment notwithstanding the verdict and for a new trial, but that court denied his request. 1 We affirm.

BACKGROUND

On April 17, 1991, Mindy Child was killed in a two-vehicle collision on U.S. Highway 89 in Davis County. She was a passenger in a Volkswagen “Beetle” driven by her 16-year-old friend, Jesse Deller. Deller, who had been driving south on Highway 89, was attempting to make a left-hand turn. According to one eyewitness, Deller waited for approximately twelve seconds for the northbound traffic to clear. However, Deller did not see Gonda’s vehicle, which was traveling north in the right-hand lane, and his Volkswagen was broadsided when he turned in front of the oncoming vehicle. Mindy died instantly, and Deller was knocked unconscious.

Child settled with Jesse Deller, his parents, and the Dellers’ insurance carrier, American States Insurance, without consulting legal counsel. The settlement was for the total amount of the policy limits — $50,-000. Thereafter, Child retained counsel and brought the instant action against Gonda in district court. The court granted Gonda’s motion for summary judgment on the basis of a “broadform release” which purported to release, in addition to the Dellers and American States, “all other persons, firms and corporations.” We reversed the lower court’s grant of summary judgment and remanded the case for further proceedings in Child v. Newsom, 892 P.2d 9 (Utah 1995). 2

*428 This case was then tried in November of 1995. Prior to trial, Child brought a motion in limine requesting the district court to preclude all references to the fact that Child had settled his claim against Deller. Gonda opposed that motion, seeking permission to notify the jury of the settlement. The court ruled that the jury was entitled to know that Child and Deller had “resolved their differences,” that it would so inform the jury, and that counsel could not mention anything about the settlement.

Child also moved the court to issue an order precluding Gonda’s witnesses from offering lay opinion testimony regarding the reasonableness of Gonda’s driving conduct. The court denied that motion and allowed the witnesses to offer their opinion at trial to the effect that Gonda’s driving conduct was reasonable.

At trial, Gonda’s counsel in his opening statement suggested to the jury that Child was suing Gonda to “get paid some more money.” Then, in his closing argument, counsel on several occasions referred to the fact that Child and Deller had resolved their differences. 3

At the close of Child’s case, the court granted Gonda’s motion for a directed verdict on Deller’s negligence and on the proximate cause connection between that negligence and Mindy’s death. Before submitting the case to the jury, the court instructed the jury, over Child’s exception, that violation of a safety law “may be” (rather than “is”) evidence of negligence. The jury then answered the first question on the jury form, regarding Gonda’s negligence, in the negative. It answered no further questions, and the district court entered judgment in Gon-da’s favor. Child then moved for partial judgment notwithstanding the verdict and for a new trial, which the court denied.

On appeal, Child argues that he is entitled to a new trial on the basis of any of the following individual or combined trial court errors: (1) allowing the jury to hear anything about the settlement with Deller; (2) refusing to promptly censure Gonda’s counsel before the jury for flagrantly violating the court’s pretrial order prohibiting references to the settlement — a violation which constituted an “irregularity in the proceedings”; (3) allowing Gonda’s witnesses to testify regarding the reasonableness of Gonda’s driving conduct; (4) granting Gonda’s motion for a directed verdict on Deller’s negligence and the proximate cause connection between that negligence and Mindy’s death; and (5) instructing the jury that violation of a safety law “may be” (rather than “is”) evidence of negligence. Child also claims that he is entitled to a new trial because the jury’s verdict is not supported by the evidence or, alternatively, is “against law” pursuant to rule 59(a)(6) of the Utah Rules of Civil Procedure.

STANDARD OF REVIEW

A district court has broad discretion in deciding whether to grant or deny a motion for a new trial. See State v. Harmon, 956 P.2d 262, 265-66 (Utah 1998);. State v. Pena, 869 P.2d 932, 938 (Utah 1994). However, because Child raises several subissues involving different standards of review, we will set forth the proper standard as we address each issue.

ANALYSIS

I. JURY INSTRUCTION REGARDING RESOLUTION OF DIFFERENCES BETWEEN CHILD AND DELLER

The first issue is whether the district court 4 erred in instructing the jury that Child and Deller had “resolved their differences.” Specifically, Child claims that rule 408 of the Utah Rules of Evidence proscribed any reference to the Child-Deller settlement. He further urges this court to expressly limit the rule of Slusher v. Ospital, 111 P.2d 437, *429 444 (Utah 1989), where under the facts of that case, we allowed the disclosure to the jurors of the existence and basic content of a settlement agreement between the plaintiff and one of the named defendants. We review challenges to jury instructions under a “correctness” standard. See Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993).

Rule 408 provides in relevant part:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

Utah R. Evid. 408 (emphasis added). The clear language of rule 408 indicates that the rule is very narrow: it only proscribes evidence regarding an offer or acceptance of “valuable consideration” in compromising a disputed claim.

In the instant case, the trial judge determined that the jury would wonder why Del-ler was not a defendant in the lawsuit. The judge therefore concluded:

I will advise the jury that in this case they will likely be asked to compare the responsibility for the accident of both the defendant and the driver of the vehicle in which the deceased was riding ...

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Bluebook (online)
972 P.2d 425, 354 Utah Adv. Rep. 21, 1998 Utah LEXIS 78, 1998 WL 743724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/child-v-gonda-utah-1998.