Berry v. Risdall

Decision Date25 February 1998
Docket Number20076,Nos. 20071,s. 20071
Citation576 N.W.2d 1,1998 SD 18
PartiesDonna C. BERRY, Plaintiff and Appellee, v. Barry L. RISDALL, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Jack Delaney and Rebecca Porter of Estes, Porter & Delaney, Rapid City, for plaintiff and appellee.

Curt Ireland, Rapid City, for defendant and appellant.

GILBERTSON, Justice.

¶1 Barry L. Risdall (Risdall) appeals a Seventh Judicial Circuit order granting Donna C. Berry's (Berry) motion for new trial on the issues of liability, compensatory, and punitive damages after a jury verdict was returned in her favor setting no monetary damages. Additionally, Berry has filed a notice of review claiming that should the grant of a new trial be affirmed, such trial should be limited to damages. We affirm.

FACTS AND PROCEDURE

¶2 At the time of the automobile collision that is the subject of this appeal, Berry and her husband were the sole stockholders in Colijiah Enterprises, Inc. d/b/a De'Essence Limousine (De'Essence). Berry was also president and general manager of the corporation on the evening of Friday, December 3, 1993, when Berry and another employee, Bobbie Fauson (Fauson), were passengers in a company limousine being driven by Michael Nieves (Nieves), also an employee of De'Essence. The purpose of the trip was to establish a route for the limousine service to drive passengers through Rapid City to view outdoor Christmas decorations during the upcoming holiday.

¶3 The limousine was returning at approximately 8:00 p.m. and had to proceed north across West Chicago Street to get to home base. West Chicago is a four lane street where the east and west lanes are separated by a median. Nieves testified that he had stopped at the stop sign at the south side of West Chicago Street and then proceeded north to the median and slowly rolled across the west bound lanes of West Chicago Street. As Nieves began through the median, Berry saw Risdall's headlights approaching from a hill on the northern most lane of West Chicago Street. Berry testified that she did not have time to warn Nieves of the approaching vehicle. Risdall's Pontiac Grand Am struck the 27-foot limousine in the front-center of the passenger side causing considerable damage.

¶4 Berry suffered physical injuries to her back, neck, and patella as a result of the collision. An officer on scene noticed a strong odor of alcohol from Risdall. Risdall's blood alcohol level was tested approximately two hours after the accident and indicated a level of 0.122%. Risdall had stopped by a Rapid City bar after work where he consumed a minimum of four to five mixed drinks prior to the collision. Evidence was presented which indicated that Risdall was traveling between 35 m.p.h. (the posted speed limit) and 50 m.p.h. and did not apply his brakes or swerve to avoid the accident. 1

¶5 Berry brought a personal injury action against Risdall which included a punitive damages claim. The trial court held a separate evidentiary hearing on Berry's punitive damage claim and permitted it to be submitted to the jury. SDCL 21-1-4.1. The jury trial began on March 26, 1997. Risdall did not contest that he was negligent but claimed that Nieves' acts or omissions were the sole proximate cause of the accident. Risdall moved for a directed verdict claiming that since Nieves never saw Risdall's vehicle, Nieves was therefore negligent in failing to maintain a lookout, and such negligence should be imputed to Berry under agency principles. The trial court denied this motion. On April 3, 1997, the jury awarded a verdict in favor of Berry, but awarded zero damages. Thereafter the trial court granted Berry's motion for a new trial.

ANALYSIS AND DECISION

¶6 1. Whether the trial court erred in granting Berry's motion for a new trial?

Waiver

¶7 Risdall initially argues that Berry has waived her right to challenge the jury verdict by failing to request the trial judge to order the jury to return for further deliberations after the disputed verdict form was received. 2 We stated in Fjerstad v. Sioux Valley Hospital, 291 N.W.2d 786, 788 (S.D.1980), that:

[SDCL 15-14-30 applies only "where a verdict is irregular on its face and can be easily corrected as in the case where interest is omitted or the foreman fails to sign the verdict." The alleged deficiencies in the verdict now before us are not merely mechanical, but rather, they go to the heart of the jury's findings. The proper motion therefore was for a new trial, and plaintiff's failure to object when the verdict was returned does not prevent us from addressing the issue of the ambiguity of the verdict.

(quoting Mueller v. Mueller, 88 S.D. 446, 450, 221 N.W.2d 39, 41 (1974)). Berry has alleged that the damages in this case were inadequate, not that the verdict was inconsistent or "irregular on its face." Mueller, supra.

¶8 Under the present circumstances we cannot say that the deficiencies in the jury's verdict are purely mechanical. The deficiencies in the verdict go to the heart of the jury's findings on the issue of damages. See Anderson v. Paulson, 77 S.D. 583, 585, 96 N.W.2d 305, 306 (1959) (fundamental defect in verdict not waived by plaintiff because of failure to request the court to instruct jury to further deliberate and return a proper verdict). Therefore, Berry's motion for a new trial has properly preserved the issue for our review.

Grant of a New Trial

¶9 On April 25, 1997, the trial court granted Berry's motion for a new trial after finding that the damage award of zero was inadequate and contrary to the evidence and judicial admissions of Risdall. SDCL 15-6-59(a). 3 Risdall claims this was error. We apply the following standard to our review of the grant of a motion for new trial by the trial court:

An application for a new trial based upon an inadequate damages award is addressed to the sound discretion of the trial court and a denial of the motion will not be reversed absent an abuse of that discretion. A new trial is not to be granted due to inadequacy of damages merely because a court believes a verdict is smaller than it should be. The issue of damages in a personal injury action is peculiarly a question for the jury. The jury's verdict should not be set aside except in those extreme cases where it is the result of passion or prejudice or where the jury has palpably mistaken the rules of law by which damages in a particular case are to be measured. SDCL 15-6-59(a)(5) .... If the jury's verdict can be explained with reference to the evidence rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.

Itzen v. Wilsey, 440 N.W.2d 312, 313-14 (S.D.1989) (citations omitted).

¶10 In reviewing a jury verdict, "This Court is not free to reweigh the evidence or gauge the credibility of the witnesses...." Miller v. Hernandez, 520 N.W.2d 266, 272 (S.D.1994) (citations omitted). See also Andreson v. Black Hills Power & Light Co., 1997 SD 12, p 8, 559 N.W.2d 886, 888; State v. Spiry, 1996 SD 14, p 19, 543 N.W.2d 260, 264. As this Court stated in Bakker v. Irvine, 519 N.W.2d 41, 48 (S.D.1994):

When, in a tort action involving personal injuries, a motion for a new trial is based on the claim that the damages are either excessive or inadequate, it must be remembered that the amount of damages to be awarded "is peculiarly a question for the jury." ... There are several reasons for this rule including the fact that a defendant may claim that a plaintiff's claimed damages are neither reasonable in amount nor proximately caused by the defendant's negligence.

(citations omitted). Furthermore, "The trial court is best able to judge whether the damages awarded by a jury are the product of passion or prejudice." Andreson, 1997 SD 12 at p 14, 559 N.W.2d at 889 (citations omitted).

¶11 A thorough review of the jury instructions fails to provide any indication, other than passion, prejudice or a mistake of law, as to why the jury would return a verdict in Berry's favor awarding zero damages. Jury Instruction No. 13 outlined the issues to be decided by providing in relevant part:

First, was the Defendant, Barry L. Risdall negligent?

If you find that Defendant was not negligent, you will return a verdict for the Defendant. If you find the Defendant ... negligent, you have a second issue to determine, namely:

Was that negligence a proximate cause of any injury to Plaintiff?

If You find Defendant's negligence was not a proximate cause of Plaintiff's injury, Plaintiff is not entitled to recover and you will return a verdict for the Defendant.

If you find Defendant's negligence was a proximate cause of Plaintiff's injury, you must then fix the amount of Plaintiff's damages and return a verdict in her favor.

(Emphasis added). Instruction No. 30 stated in part,

If you find for the plaintiff, use the verdict entitled VERDICT FOR THE PLAINTIFF and insert ... the amount of the recovery you have allowed to the plaintiff. If you find for the defendant, use the verdict entitled VERDICT FOR THE DEFENDANT.

(Capitals in original). Furthermore, Instruction No. 21 provided in pertinent part that:

A person may not drive or be in actual physical control of any vehicle while:

(1) there is 0.10 percent or more by weight of alcohol in his blood ...; or

(2) under the influence of an alcoholic beverage.

If there was at that time ten hundredths percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.

These statutes set the standard of care of the ordinarily careful and prudent person. If you find ... Risdall, violated them, such violation is negligence.

¶12 If a verdict is susceptible to more than one construction, the construction which sustains the verdict must be applied. Fjerstad, 291 N.W.2d at 788. Baker v. Jewell, 77 S.D. 573, 580, 96 N.W.2d 299, 304 (1959). Here, however, we must engage in pure speculation to...

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