Barnes By and Through Barnes v. United Industry, Inc.
| Decision Date | 10 January 1996 |
| Docket Number | No. 94-386,94-386 |
| Citation | 275 Mont. 25,909 P.2d 700 |
| Parties | Brooks B. BARNES, By and Through his Guardian Ad Litem, Douglas A. BARNES, and Judy K. Barnes, Plaintiffs and Appellants, v. UNITED INDUSTRY, INC., Defendant and Respondent. |
| Court | Montana Supreme Court |
Robert L. Stephens, Jr., R.L. Stephens, Ltd., and Terry L. Seiffert, Billings, for Appellants.
Earl J. Hanson, Hanson, Roybal, Lee & Todd, Billings, for Respondent.
This is an appeal from a judgment based upon a jury verdict in the Thirteenth Judicial District Court, Yellowstone County, and the court's rulings on admission of evidence, the granting of a directed verdict in favor of United Industry, Inc., on punitive damages, and the denial of Brooks B. Barnes' request for post-trial relief. We affirm.
We restate the issues as follows:
1. Did the District Court err in not granting a new trial for alleged improper statements in final argument where no objection was made?
2. Did the District Court err in granting United's motion for a directed verdict on the issue of punitive damages?
3. Did the District Court err in not granting a new trial based on the refusal to admit a photograph exhibit taken nine days after the accident occurred and a letter from Barnes' attorney to United written four days after the accident?
4. Did the District Court err in not granting a new trial based on the jury's finding that Barnes suffered no future loss of earning capacity?
5. Did the District Court err in not granting a new trial based on the inadvertent failure to instruct on the standard of care of a bicyclist?
6. Did the District Court err in denying Barnes' motion for additur?
On September 6, 1990, Barnes, then age fifteen, was riding his bicycle along the sidewalk next to the Transwestern I building in Billings. The Transwestern I building is an office building owned by United and was being refurbished at the time of the accident. Barnes rode his bicycle into a plastic pipe that had been placed on and across the sidewalk by United's employee to allow for the watering of the grass. Barnes hit the pipe and fell from his bike breaking both of his wrists. There was no barricade in place at the time of the accident.
Barnes has incurred several surgeries to his wrists, including plastic surgery to correct a resulting deformity in both arms. Despite his injuries, Barnes graduated with honors from high school and received a scholarship to Marquette University where he is pursuing a degree in journalism. He currently attends the University's communication school and, although he types his own papers, he is required to rest after forty minutes of typing due to pain in his wrists. Barnes also testified that the injuries have limited his routine everyday activities as well as his recreational activities.
Barnes asked for both compensatory and punitive damages. The case was tried to a twelve-person jury. At the conclusion of Barnes' case in chief, the District Court granted a directed verdict on the issue of punitive damages in favor of United. The remainder of the case was submitted to the jury and the jury found Barnes thirty percent negligent and United seventy percent negligent. The jury awarded Barnes $89,641 which the court reduced to $62,763.
At trial, Barnes offered into evidence two pictures. One was of the accident scene the day after the accident and the other was of the accident scene nine days later. The court admitted into evidence the first picture but refused the second.
During closing arguments, the attorney for United admitted liability but also referenced the action of third parties that may have contributed to the accident--the subcontractors who apparently removed the sidewalk barriers without notifying United.
Before the jury was dismissed, Barnes offered an instruction on the standard of care that a bicyclist must follow. The District Court inadvertently did not give the instruction to the jury.
Following trial, Barnes filed a motion for additur to increase the jury verdict from anywhere between $45,000 to $75,000. The District Court did not grant the motion for additur.
Barnes filed a motion for new trial citing the above grounds as well as the jury's refusal to award any damages for future loss of earning capacity. The District Court denied Barnes' requests for a new trial.
From the court's denial of post-trial relief, grant of a directed verdict, refusal of evidence, and the jury's verdict, Barnes appeals.
Did the District Court err when it denied Barnes a new trial for alleged improper statements in final argument where no objection was made?
Barnes contends that in its final argument United admitted liability but then argued that its employees were unaware that the barricade had been removed. United then made an alleged improper inference that there was third-party liability of some sort on the part of the contractor for failing to advise United of the removal of barricades from the sidewalk. Barnes asserts that a new trial is warranted where improper statements are made in closing arguments. See Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916. In the District Court's memorandum, Barnes' request for a new trial was denied because Barnes
did not object to any portion of the final argument submitted by [United's] counsel. Therefore, assuming that some portion of [United's] counsel's argument was improper, [Barnes] waived any objections he may have had to the content of defense counsel's argument.
In Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 1204, we held that failure to make a timely objection to alleged improper statements of counsel in closing argument constitutes a waiver. A party loses his right to appeal an alleged error where an objection to that error was waived. Whiting v. State (1991), 248 Mont. 207, 221, 810 P.2d 1177, 1187. The record sets forth no objection to the content of United's final argument nor any request for corrective action. We therefore conclude that the District Court did not err when it denied Barnes a new trial for alleged improper statements in final argument where there was no objection to the statements.
Did the District Court err in granting United's motion for a directed verdict on the issue of punitive damages?
At the conclusion of Barnes' case in chief, the District Court granted United's motion for directed verdict on the issue of punitive damages. The District Court, however, failed to set forth any findings as to why it did not allow punitive damages. Nevertheless, this Court will affirm a district court's grant of a directed verdict if the court's conclusion is correct regardless of the reasons given. Riley v. American Honda Motor Co. (1993), 259 Mont. 128, 131, 856 P.2d 196, 198 (citing Laurie v. M. & L. Realty Corp. (1972), 159 Mont. 404, 408, 498 P.2d 1192, 1194). We review a directed verdict in light of the evidence most favorable to the party against whom the verdict was directed. Lavelle v. Kenneally (1974), 165 Mont. 418, 529 P.2d 788.
Barnes claims punitive damages should have been assessed upon United because of United's malicious acts. Punitive damages may be awarded when the defendant is found, by clear and convincing evidence, to be guilty of actual malice. Section 27-1-221(1), (5), MCA.
A defendant is guilty of actual malice if he has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and ... deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.
Section 27-1-221(2), MCA. Barnes alleges United placed the pipe over the sidewalk and left it there for a period of two weeks in wanton and willful indifference to the hazard the pipe created for pedestrians and bicyclists.
United contends there was no evidence presented that showed the employee who laid the pipe across the sidewalk acted in conscious or blatant disregard of the high probability of injury to Barnes, or that the employee deliberately proceeded to act in indifference to the high probability of injury to Barnes. The employee testified that the barricade was in place when he initially laid the pipe on the sidewalk and every time he moved the pipe thereafter. Barnes produced no evidence to the contrary.
In Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 460, 771 P.2d 114, 117, overruled on other grounds by Sacco v. High Country Independent Press (1995), 271 Mont. 209, 229, 896 P.2d 411, 423, we held punitive damages were not appropriate where the plaintiff had not presented a prima facie case including clear and convincing evidence of all elements required under § 27-1-221, MCA. In order to render a defendant liable for exemplary damages, plaintiff must allege and prove something more than mere negligence. Gagnier v. Curran Const. Co. (1968), 151 Mont. 468, 480, 443 P.2d 894, 901.
In the present case, Barnes did not produce any evidence to contradict the testimony of United's employee. Accordingly, Barnes is not entitled to an award of punitive damages. Therefore, we hold that the District Court did not err in granting United's motion for a directed verdict on the issue of punitive damages.
Did the District Court err in not granting a new trial based on the refusal to admit a photograph exhibit taken nine days after the accident occurred and a letter from Barnes' attorney to United written four days after the accident?
At trial, Barnes moved to introduce two photos into evidence. The first photo was of the accident scene the day after the accident and the second photo was of the same scene nine days later. The District Court allowed the first photo into evidence but did not allow the second because it found the second photo was not relevant to the conditions at the time of the accident.
The District Court has broad discretion to determine the admissibility of evidence, and we will not disturb the...
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