Baddou v. Hall

• Citation: 2008 SD 90,756 N.W.2d 554
• Decision Date: 17 September 2008
• Docket Number: No. 24690.,24690.
• Parties: Abdelaziz BADDOU, Plaintiff and Appellant, v. Carla Jean HALL, Defendant and Appellee.
• Court: Supreme Court of South Dakota

756 N.W.2d 554

2008 SD 90

Abdelaziz BADDOU, Plaintiff and Appellant, v. Carla Jean HALL, Defendant and Appellee.

No. 24690.

Supreme Court of South Dakota.

Considered on Briefs May 21, 2008.

Decided September 17, 2008.

Jon J. LaFleur of LaFleur, LaFleur & LaFleur, P.C., Rapid City, SD, for plaintiff and appellant.

Gregory G. Strommen of Clayborne, Loos, Strommen & Sabers, L.L.P., Rapid City, SD, for defendant and appellee.

BARNETT, Circuit Judge.

[¶ 1.] Abdelaziz Baddou (Baddou) filed suit against Carla Jean Hall (Hall) alleging negligence arising out of an accident in which Hall's vehicle struck the rear end of Baddou's vehicle. The case was tried to a jury which found no negligence. Baddou appeals from an order denying his motion for judgment as a matter of law and his motion for new trial. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On January 21, 2004, Baddou was driving south on Elm Street in Rapid City, South Dakota. Elm Street is a two lane road with no turn lanes. Baddou activated his left turn signal and stopped while waiting for the oncoming traffic to clear. Before he could turn left, Baddou was struck from behind by Hall's vehicle.

[¶ 3.] Hall testified that she had been following Baddou's vehicle for approximately three blocks, at a distance of "probably one car length," and at a speed of approximately 25 miles per hour. Hall was on her way to pick up school children. As she headed south on Elm, Hall slowed down somewhat to watch out for children. At the moment before impact, Hall looked left to observe school children and make sure they were not going to dart out in front of her vehicle. When she looked back at the road ahead, Hall realized Baddou had stopped. Hall applied her brakes and veered right, but was too late to avoid collision. The left front of Hall's vehicle struck the right rear bumper of Baddou's vehicle.

[¶ 4.] The accident investigator from the Rapid City Police Department made a notation on his report indicating "Fault: driver 1-rear ended legally stopped veh. [sic] waiting to turn." However, the officer did not issue a ticket to either driver. The larger box in the report which asks the officer "Citation Charge?" was left blank and the small interior "No" box was checked with an "X."

[¶ 5.] Hall filed a pretrial motion in limine to keep out the officer's notation of "Fault: driver 1...." The motion was granted and the "fault" quote was redacted from the report. Hall also filed a motion to preclude the mention of the issuance or non-issuance of a citation, but withdrew the motion at hearing. The court considered that motion moot because no citation was issued against either driver.

[¶ 6.] During trial, Baddou offered the accident report as redacted. Notably, Baddou's exhibit still contained the empty citation box with the "No" marked with an "X." During closing argument, Hall's attorney commented on Baddou's exhibit and its absence of any citation by the officer against Hall. Baddou timely objected. The court overruled the objection stating that "[t]he exhibit is in evidence and whatever the exhibit says is certainly available to the jury to consider." A few moments later at the conclusion of Hall's closing argument, Baddou renewed the motion and argued at the bench on the record. The court reconsidered and gave an oral curative instruction:

The issue comes up with the question of whether or not a citation was issued. I don't have the officer here. The record would indicate from the ticket—from the report that no citation was given. I believe counsel would confirm that.

I would tell you, and advise you, that the issuance or non-issuance of a citation by the officer on the scene does not establish either the presence of negligence by the issuance of a citation nor the absence of negligence by the nonissue of a ticket or citation. Those matters are separate and distinct from, much like the insurance I mentioned earlier. It's not relevant. What the officer thought or didn't think or what the officer did then or did later, if anything.

The question is for you, would a reasonable person under those circumstances have acted in the way that the parties did. Your decision on that matter controls the outcome. Not whether an officer issued a citation or not.

[¶ 7.] In its final jury instructions, the court also instructed the jury that arguments of counsel were not evidence. Baddou's motion for new trial based upon the comments by Hall's attorney during closing argument was denied.

[¶ 8.] The jury found no negligence on the part of Hall. Thereafter Baddou filed a motion for judgment as a matter of law. Baddou claimed that Hall's actions were negligence per se. The court denied the motion and stated that whether or not Hall had been following too closely was a fact question for the jury.

[¶ 9.] Baddou contends that there is insufficient evidence to support the verdict based upon the same arguments offered on the motion for judgment as a matter of law. Baddou also contends that the court should have instructed the jury on lost earning capacity. The court held that Baddou had failed to offer any evidence on that point and was not entitled to the instruction.

[¶ 10.] Baddou's issues on appeal are:

Whether Baddou was entitled to judgment as a matter of law based upon a claim of negligence per se.

Whether sufficient evidence existed to support the jury verdict for Hall.

Whether Baddou is entitled to a new trial based upon Hall's closing argument.

Whether Baddou is entitled to a new trial based upon the court's refusal to instruct the jury on lost earning capacity.

STANDARD OF REVIEW

[¶ 11.] We review the court's denial of a motion for directed verdict under the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688 N.W.2d 421, 425 (citing Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 7, 579 N.W.2d 1, 3 (citing Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460)). When reviewing motions for judgment as a matter of law or a directed verdict, we examine the evidence in a light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences fairly drawn from the evidence. Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989) (citing Carlson v. First Nat. Bank, 429 N.W.2d 463, 466 (S.D. 1988); Kreager v. Blomstrom Oil Co., 379 N.W.2d 307, 310 (S.D.1985); Koupal & Anton, Inc. v. Wieczorek, 375 N.W.2d 639, 640 (S.D.1985); Sabag v. Continental South Dakota, 374 N.W.2d 349, 355 (S.D. 1985)). If there is any substantial evidence to sustain the cause of action or defense, it must be submitted to the finder of fact. Id. (citing Baldwin v. First Nat. Bank of Black Hills, 362 N.W.2d 85, 88 (S.D.1985)). This only occurs when the evidence is so one-sided that reasonable minds can reach no other conclusion. Jensen v. Pure Plant Food Intern, Ltd., 274 N.W.2d 261, 265 (S.D.1979) (citing Lang v. Burns, 77 S.D. 626, 630, 97 N.W.2d 863, 866 (1959)).

[¶ 12.] Denial of a motion for new trial is reviewed under the abuse of discretion standard. Bridgewater Quality Meats, L.L.C. v. Heim, 2007 SD 23, ¶ 10, 729 N.W.2d 387, 392. An abuse of discretion occurs only if no judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion. Kappenman v. Stroh, 2005 SD 96, ¶ 24, 704 N.W.2d 36, 42 (quoting Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995)). "The party alleging error on appeal must show error affirmatively by the record, and not only must the error be demonstrated, but it must also be shown to be prejudicial error." Tovsland v. Reub, 2004 SD 93, ¶ 15, 686 N.W.2d 392, 398; Morrison v. Mineral Palace Ltd. Partnership, 1998 SD 33, ¶ 10, 576 N.W.2d 869, 872. In cases where trial misconduct is urged as grounds for a new trial, the aggrieved party must convince this Court that there has been a miscarriage of justice. Schoon v. Looby, 2003 SD 123, ¶ 18, 670 N.W.2d 885, 891.

[¶ 13.] As for claims of insufficient evidence, the trial court has broad discretion on whether to grant a new trial. We examine the evidence in a light most favorable to the verdict. The prevailing party benefits from all reasonable inferences. If there is competent evidence to support the verdict, it must be upheld. Rogen v. Monson, 2000 SD 51, ¶ 18, 609 N.W.2d 456, 460-61; SDCL 15-6-50(a); Christenson, 2004 SD 113, ¶ 22, 688 N.W.2d at 427.

[¶ 14.] "While other jurisdictions have adopted a presumption of negligence in rear-end accidents, we have so far declined to do so." Steffen v. Schwan's Sales Enterprises, Inc., 2006 SD 41 ¶ 9, 713 N.W.2d 614, 618 (citing Christenson, 2004 SD 113, ¶ 33, 688 N.W.2d at 429). Instead we have required a plaintiff to plead and prove the negligent conduct of the defendant in a rear-end accident. The mere fact an accident happened creates no inference that it was caused by someone's negligence. Id.

[¶ 15.] With regard to curative instructions, we presume that juries understand and abide by instructions. First National Bank of Minneapolis v. Kehn Ranch, Inc., 394 N.W.2d 709, 720 (S.D. 1986); Fjerstad v. Sioux Valley Hospital, 291 N.W.2d 786, 788 (S.D.1980); Baker v. Jewell, 77 S.D. 573, 580, 96 N.W.2d 299, 304 (1959).

[¶ 16.] Instructions to the jury must be based upon evidence adduced and issues raised at the trial. State v. Johnson, 320 N.W.2d 142, 147 (S.D.1982).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 17.] Whether Baddou was entitled to judgment as a matter of law, based upon a claim of negligence per se.

[¶ 18.] Baddou claims that the evidence was "undisputed" that Hall violated a safety statute, SDCL 32-26-40, which provides:

The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and condition of the highway. A violation of this section is a Class 2 misdemeanor. (emphasis added).

Baddou argues that we have previously adopted a per se rule...