Foster v. Bd. of Trustees of Butler Cty. Com. Col.

• Citation: 771 F. Supp. 1122
• Decision Date: 12 July 1991
• Docket Number: Civ.A. No. 89-1094-T,89-1169-T.
• Parties: Christopher FOSTER, Plaintiff, v. BOARD OF TRUSTEES OF BUTLER COUNTY COMMUNITY COLLEGE, et al., Defendants. Gregory A. CLARK, Plaintiff, v. BOARD OF TRUSTEES OF BUTLER COUNTY COMMUNITY COLLEGE, et al., Defendants.
• Court: U.S. District Court — District of Kansas

771 F. Supp. 1122

Christopher FOSTER, Plaintiff, v. BOARD OF TRUSTEES OF BUTLER COUNTY COMMUNITY COLLEGE, et al., Defendants.

Gregory A. CLARK, Plaintiff, v. BOARD OF TRUSTEES OF BUTLER COUNTY COMMUNITY COLLEGE, et al., Defendants.

Civ.A. Nos. 89-1094-T, 89-1169-T.

United States District Court, D. Kansas.

July 12, 1991.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

THEIS, District Judge.

This matter is before the court on the motions for new trial filed by defendant Douglas S. Pringle, Special Administrator for the Estate of George D. Johnson ("Pringle") (Doc. 152) and defendants Board of Trustees of Butler County Community College, Butler County Community College, and Randy Smithson (collectively, "the BCCC defendants") (Doc. 153). These consolidated personal injury actions were tried commencing February 4, 1991.

This case arose out of a motor vehicle collision occurring at the intersection of Airport/Yoder Road and U.S. Highway 50 in Reno County, Kansas on March 22, 1987. Plaintiff Christopher Foster was a passenger in a car driven by George Johnson. Johnson was travelling south on Airport Road. Plaintiff Gregory Clark was travelling east on Highway 50. Johnson failed to stop at the stop sign on Airport Road and collided with the tractor-trailer rig driven by plaintiff Clark. Johnson died as a result of the injuries he received in the accident. Foster and Clark were injured.

Foster, a native of Ohio, was a high school senior at the time of the accident. He was visiting Kansas on a recruiting visit at the request of defendant Randy Smithson, the head coach of the BCCC basketball team. Johnson picked Foster up at the Wichita airport at Smithson's request. Smithson had previously taken several other recruits to Hutchinson for the National Junior College Basketball Tournament. Contrary to the instructions given by Smithson, Johnson took Foster to Hutchinson to watch the game. Johnson telephoned Smithson from Hutchinson just prior to the collision. Smithson told Johnson to bring Foster to El Dorado. Johnson was en route to El Dorado when the collision occurred. Additional facts will be discussed where necessary.

At the close of the evidence, the court directed a verdict in favor of the plaintiffs on the issue of respondeat superior, ruling that Johnson was the servant or employee of the BCCC defendants and was acting within the scope of his authority at the time of the accident. On February 27, 1991 the jury returned a verdict finding plaintiff Clark 10% at fault and defendants 90% at fault. Damages in the amount of $2,257,000 were awarded to plaintiff Foster and in the amount of $302,000 to plaintiff Clark. After reducing the judgment by Clark's 10% fault, the court entered judgment in the amount of $2,031,300 in favor of Foster and $271,800 in favor of Clark. These motions for new trial followed.

Since the filing of the motions for new trial, plaintiff Foster has settled with the defendants. The court thereafter declined to exercise ancillary jurisdiction over an attorney fee dispute among various attorneys claiming a share of fees from the Foster settlement. The defendants have not settled with plaintiff Clark. The court shall therefore address the issues raised by the defendants as they apply to plaintiff Clark.

Defendant Pringle raises the following issues in his motion for new trial: (1) the verdict is contrary to the evidence; (2) the amount of damages awarded is so excessive as to appear to have been based on passion and prejudice; (3) the evidence is insufficient to sustain the verdict; and (4) the court improperly allowed the jury to consider testimony regarding Johnson's lack of liability insurance. Defendant Pringle filed a memorandum in support of his motion (Doc. 158) out of time but with leave of court.

The BCCC defendants raise the following issues: (1) the verdict is contrary to the evidence; (2) the amount of damages awarded is so excessive as to appear to have been based on passion and prejudice; (3) the court improperly allowed the jury to consider testimony regarding Johnson's lack of liability insurance coverage and evidence regarding the proof of insurance that must be provided by a student who is operating his own automobile in connection with a school function; (4) the court improperly refused to submit to the jury the questions of whether Johnson was the employee of BCCC and whether Johnson was operating within the scope of his employment at the time of the accident; (5) the court improperly refused to submit the issue of plaintiff Foster's comparative negligence to the jury; (6) the court improperly refused to allow testimony concerning plaintiff Clark's opinion that he considered the intersection where the accident occurred to be a dangerous one. In the alternative, the BCCC defendants move for remittitur. The BCCC defendants did not file a memorandum or brief in support of their motion.¹

It is well settled that the "district court has broad discretion in deciding whether to grant a motion for a new trial." Patty Precision Prods. Co. v. Brown & Sharpe Mfg., 846 F.2d 1247, 1251 (10th Cir.1988); Royal College Shop v. Northern Ins. Co. of New York, 895 F.2d 670, 677 (10th Cir. 1990). Such a motion may be granted when the court believes the verdict to be against the weight of the evidence, when prejudicial error has entered the record, or when substantial justice has not been done. McHargue v. Stokes Division of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir.1990); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 637 (10th Cir.1988); Holmes v. Wack, 464 F.2d 86, 88-89 (10th Cir.1972). Before a new trial will be granted, trial errors regarding admissibility of evidence and any other court rulings must affect the substantial rights of the parties. Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1148-49 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978).

A motion for new trial which is grounded on the jury's verdict being against the weight of the evidence generally presents a question of fact, not law, and is committed to the discretion of the trial court. Brown v. McGraw Edison Co., 736 F.2d 609, 616 (10th Cir.1984). On a motion for new trial alleging that the verdict is against the weight of the evidence, the court may weigh the evidence for itself. Commons v. Montgomery Ward & Co., 614 F.Supp. 443, 449 (D.Kan.1985); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806, at 44-45 (1973). However, "the more sharply the evidence conflicts, the more reluctant the judge should be to substitute his judgment for that of the jury." 11 C. Wright & A. Miller, supra, § 2806, at 44. A new trial may be granted on this ground only when the verdict is clearly, decidedly, or overwhelmingly against the weight of the evidence. May v. Interstate Moving & Storage Co., 739 F.2d 521, 525 (10th Cir.1984).

A. Contrary to the evidence/Insufficiency of the evidence

All defendants assert that the verdict is contrary to the evidence. Defendant Pringle also argues that the evidence adduced at trial is insufficient to sustain the verdict. None of the defendants elaborate any further.

The court has weighed the evidence for itself. From the court's observation of the demeanor of the witnesses, the court found the testimony of plaintiff Foster, his mother, plaintiff Clark and defendant Randy Smithson to be quite credible. It was stipulated that Johnson ran the stop sign at the intersection of Airport Road and Highway 50. This fact alone would have been sufficient to support a finding that Johnson was 100% at fault, notwithstanding the defendants' accident reconstructionist who opined that Clark committed several driving errors. The evidence certainly was sufficient to support a finding that defendants were 90% at fault for the accident. There were conflicts in the evidence regarding the nature and extent of the plaintiff Clark's injuries and damages. As will be more fully discussed in the next section, the evidence was sufficient to support the damages awarded. The verdict was not clearly against the weight of the evidence.

B. Excessiveness of Verdict

All defendants assert that the jury's verdict was so excessive as to appear to have been based on prejudice or passion. Defendant Pringle argues that the evidence of record does not support a verdict of $2,257,000 for Foster or $302,000 for Clark, or even the amount of the judgment after subtracting 10% for Clark's comparative fault. None of the defendants elaborate any further. The motion for new trial as it relates to the size of the verdict awarded to plaintiff Foster are moot. The court shall therefore address the damages awarded to Clark.

As with all of its functions as trier of fact, the jury has wide discretion in determining the amount of damages that will fairly compensate the aggrieved party. Black v. Hieb's Enterprises, Inc., 805 F.2d 360, 362-63 (10th Cir.1986); see also Menne v. Celotex Corp., 861 F.2d 1453, 1474 (10th Cir.1988) (plaintiff is not bound by the amount of relief requested in the complaint but only by the evidence adduced at trial). The court reviews the amount of damages awarded by the jury under the standards set forth in Malandris v. Merrill Lynch, Pierce, Fenner & Smith, 703 F.2d 1152 (10th Cir.1981) (en banc) (plurality opinion), cert. denied, 464 U.S. 824, 104 S.Ct. 92, 78 L.Ed.2d 99 (1983):

Absent an award so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury's determination of the damages is considered inviolate. Such bias, prejudice or passion can be inferred from excessiveness. However, a verdict will not be set aside on this basis unless it is so plainly excessive as to suggest that it was the product of such passion or prejudice on the part of the jury.

Id. at 1168 (citations and footnote omitted); see also Acree v. Minolta Corp., 748

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