Duma v. Keena

2004 ND 104, 680 N.W.2d 627, 2004 N.D. LEXIS 210, 2004 WL 1209447

• Court: North Dakota Supreme Court
• Decided: June 3, 2004
• Docket: 20030302
• Status: Published

Opinions

MARING, Justice.

[¶ 1] Sandra Duma appeals a judgment entered upon a jury verdict, ordering that Duma take nothing, dismissing the action on the merits, and granting the defendants costs and disbursements. We affirm.

I

[¶ 2] Duma was a passenger in a car driven by John Adams. She was injured when the car driven by Adams was in an accident with a car driven by Shawn Kee-na. Duma sued Keena for negligence, alleging Keena failed to yield the right-of-way. One of Keena’s defenses was that Duma would have reduced or mitigated her damages had she been wearing a seat-belt. Duma argued she was initially wearing a seatbelt, but it came unbuckled during the accident.

[¶ 3] During deliberations, the jury submitted a question to the judge. The jury wrote, “[pjlease clarify question 5[.] Does question 5 ask if Sandra Duma is at fault for the accident or at fault for her injuries[?]” The trial judge responded that “[qjuestion 5 asks if Sandra Duma is at fault for the accident.” The jury filled out the special verdict form as follows:

QUESTION 1:

Does the greater weight of the evidence establish that Defendant Shawn Keena was at fault?

YES

If you answered Question 1 “NO”, sign and return this verdict. If you answered Question 1 “YES”, then answer Question 2.

QUESTION 2:

Was the fault of Defendant Shawn Kee-na, a proximate cause of Sandra Duma’s alleged injuries?

YES

If you answered Question 2 “NO”, sign and return this verdict. If you answered Question 2 ‘TES”, then answer Question 3.

QUESTION 3:

Does the greater weight of the evidence establish that John Adams was at fault?

YES

If you answered Question 3 “NO,” then go to Question 5. If you answered Question 3 “YES,” then answer Question 4.

QUESTION 4:

Was the fault of John Adams a proximate cause of Sandra Duma’s alleged injuries?

YES

QUESTION 5:

Was the Plaintiff Sandra Duma at fault?

NO

If you answered Question 5 “NO,” then go on to Question 7. If you answered Question 5 ‘TES,”, then answer Question 6.

QUESTION 6:

Was the fault of Sandra Duma a proximate cause of her alleged injuries?

NO

QUESTION 7:

Taking all of the fault that proximately cause the plaintiffs’ damages as 100%, what percentage of fault do you attribute to:

Shawn Keena 60%

John Adams 40%

Sandra Duma 0%

Total 100%

QUESTION 8:

What amount of money will fairly compensate the plaintiff for:

Past economic damages $10,000

Future economic damages $ 0

Past non-economic damages $ 5,000

Future non-economic damages $ 0

QUESTION 9-A:

Was Sandra Duma wearing a seat belt?

NO

If you answered Question 9-A “NO,” then answer Question 9.

QUESTION 9:

What, if any, percentage of her injuries would have Sandra Duma avoided if she had used a seat belt and shoulder harness?

100%

QUESTION 10:

Should the plaintiff be awarded interest on the damages?

NO

QUESTION 11:

If you answered Question 9 “YES,” what rate of interest should be used (subject to a maximum of 6%)?

0%

[¶ 4] The trial court entered judgment ordering that Duma take nothing, dismissing the action on the merits, and granting the defendants costs and disbursements. Duma appeals the judgment.

II

[¶ 5] Duma argues the jury’s special verdict is inconsistent and cannot be reconciled. Duma argues it is inconsistent for the jury in Question 6 to find Duma was not the proximate cause of her injuries but in Question 9 find she could have avoided 100 percent of her injuries had she worn a seatbelt. Additionally, Duma argues it is impossible to determine if the jury’s answer to Question 9-A found that she was not wearing a seatbelt or that she initially wore her seatbelt and it came unbuckled in the accident. We disagree.

A

[¶ 6] We will uphold “special verdicts on appeal whenever possible and set aside a jury’s special verdict only if it is perverse and clearly contrary to the evidence.” Moszer v. Witt, 2001 ND 30, ¶ 11, 622 N.W.2d 223. The test for reconciling apparent conflicts in a jury’s verdict is:

[Wlhether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. If after a review of the district court’s judgment no reconciliation is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment, then the judgment must be reversed and the case remanded for a new trial.

Id. (quotation omitted) (emphasized in original). “We reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable or whether it is perverse and clearly contrary to the evidence.” Id. at ¶ 11. “Reconciliation of a verdict, therefore, includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.” Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553 (quotation omitted). We note that our review of the evidence presented to the trial court is limited because no transcript was provided on appeal except a partial transcript of a proceeding outside the presence of the jury concerning the special verdict form. See State v. Roth, 2004 ND 23, ¶ 27, 674 N.W.2d 495 (stating that failure to provide this Court with a transcript on appeal may prevent the appellant from being successful).

[¶ 7] The parties received the jury instructions and special verdict form and had an opportunity to object to them. In fact, Duma’s counsel requested Question 9-A be added in order to clarify the verdict form. On appeal, Duma does not raise any issues regarding the jury instructions; therefore, those unopposed instructions become the law of the case. Comstock Const., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 12, 651 N.W.2d 656.

[¶ 8] The jury instruction in this case treats seatbelt use as a mitigating factor to reduce damages. The jury was instructed:

USE OF SEATBELT

Evidence was presented from which you could find that the plaintiff was not using an available seatbelt and shoulder harness at the time of the accident. If you find (1) that it was unreasonable for the plaintiff not to use the seatbelt and shoulder harness and (2) that the plaintiff would not have received some or all of her injuries had she worn a seat belt and shoulder harness, then (3) the amount of damages awarded the plaintiff for the injuries she sustained, if any, must be reduced in proportion to the amount of injury she would have avoided by the use of a seatbelt and shoulder harness.

The burden of proof on both (1) and (2) rests with the defendant.

[¶ 9] In Halvorson v. Voeller, we examined helmet use while riding a motorcycle, a situation similar to wearing a seatbelt while riding in a car. 336 N.W.2d 118 (N.D.1983). We specifically held that helmet use is “relevant to the issue of damages” but “has no relevance to the issue of liability for causing the accident.” Id. at 119. We stated that “if damages are capable of reasonable apportionment to separate causes, it should make no difference whether the plaintiffs negligence in aggravating his injuries preceded or succeeded the defendant’s negligence.” Id. at 120. In Halvorson, we gave an example jury instruction, which we held a trial court is warranted in giving:

If you find (1) it was unreasonable for the plaintiff to not wear a helmet, and (2) the plaintiff would not have received some or all of his injuries had he worn a helmet, then (3) the amount of damages awarded the plaintiff for the injuries he sustained must be reduced in proportion to the amount of injury he would have avoided by the use of a helmet. The burden of proof on both (1) and (2) rests with the defendant.

Id. at 121 (footnote omitted).

[¶ 10] The unopposed jury instruction for the use of a seatbelt in the present case is essentially identical to our suggested jury instruction on use of a helmet in Halvorson. As in Halvorson, Duma’s failure to wear a seatbelt, while not the cause of the accident, is relevant to her damages according to the “use of seatbelt” instruction. Therefore, the jury was instructed to treat the use of a seatbelt as a mitigating factor to reduce damages, and that instruction is the law of the case.

B

[¶ 11] Duma points to language in Hal-vorson calling helmet nonuse “antecedent negligence” and argues that based on the special verdict form, the jury possibly addressed Duma’s negligence for failing to wear a seatbelt in its answer to Question 6. Duma also argues the special verdict form could be read to find that the jury took Duma’s failure to wear a seatbelt into consideration in Question 7 when it determined what percentage of fault to attribute to her. Further, Duma argues it is possible the jury meant to award her $15,000, regardless of its answers to the seatbelt questions.

[¶ 12] The jury should not have answered Question 6. It was instructed to skip Question 6 if it answered “no” to Question 5. Question 6 asked if the fault of Sandra Duma was a proximate cause of her injuries, rather than the proximate cause of the accident. The jury answered Question 6 “no.” However, a special verdict question cannot be examined in a vacuum. We must look to the entire special verdict form and the jury instructions to determine whether an inconsistency exists. Moszer, 2001 ND 30, ¶ 11, 622 N.W.2d 223.

[¶ 13] In this case, Question 6 is clearly linked to Question 5. It is logical and probable, based on the jury instructions, that the jury concluded Questions 5 and 6 asked it to determine Duma’s fault for causing the accident, not her fault for failing to mitigate her injuries by wearing a seatbelt. The jury’s question to the trial judge during deliberations supports our conclusion that the jury found Questions 5 through 7 asked them strictly about the negligence and damages relating to the accident, not about the effect Duma’s failure to wear a seatbelt had on her recovery for her injuries. The jury wrote, “[p]lease clarify question 5[.] Does question 5 ask if Sandra Duma is at fault for the accident or at fault for her injuries!?]” The trial judge responded that “[q]uestion 5 asks if Sandra Duma is at fault for the accident.” It is also logical and probable, based on the record, that the jury found Question 7 asked it to determine Duma’s percentage of fault for the accident, not fault for failure to wear a seatbelt. The “use of seat-belt” instruction given in this case without objection requires the jury to reduce the damages they previously determined in proportion to the injury Duma could have avoided if she had been wearing a seatbelt. “A jury is generally presumed to follow instructions given by the trial court,.... ” State v. Ellis, 2001 ND 84, ¶ 23, 625 N.W.2d 544. The jury followed the instruction and found in answer to Questions 9-A and 9 that Duma was not wearing a seatbelt and could have avoided 100 percent of her injuries if she had been wearing one.

[¶ 14] We conclude the jury’s special verdict was not perverse or clearly contrary to the evidence based on the jury instructions which became the law of the case. It is logical and probable that the jury found Duma was not at fault for the accident but that had she worn a seatbelt, 100 percent of her injuries could have been avoided.

III

[¶ 15] During oral argument, Duma alluded to the issue of whether separating the questions of negligence and mitigation is inappropriate under our comparative fault law. This issue was not raised before the trial court, and we will not address an argument raised for the first time on appeal. Peters-Riemers v. Riemers, 2002 ND 49, ¶ 9, 641 N.W.2d 83.

IV

[¶ 16] We affirm the judgment entered upon a jury verdict, ordering that Duma take nothing, dismissing the action on the merits, and granting the defendants costs and disbursements.

[¶ 17] GERALD W. VANDEWALLE, C.J., and DALE V. SANDSTROM, JJ., concur.