Blessum v. Shelver

• Decision Date: 11 August 1997
• Docket Number: No. 960345,960345
• Citation: 567 N.W.2d 844,1997 ND 152
• Parties: Nancy BLESSUM, Plaintiff and Appellee, v. David SHELVER, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 844

567 N.W.2d 844

1997 ND 152

Nancy BLESSUM, Plaintiff and Appellee, v. David SHELVER, Defendant and Appellant.

Civil No. 960345.

Supreme Court of North Dakota.

Aug. 11, 1997.

Rehearing Denied Sept. 30, 1997.

Chapman and Chapman, Daniel J. Chapman (argued), Bismarck, for defendant and appellant.

Olson, Burns, & Lee, Gary H. Lee (argued), Minot, for plaintiff and appellee.

MESCHKE, Justice.

¶1 David Shelver appealed a $45,000 judgment on a jury verdict against him for assaulting Nancy Blessum, and appealed orders denying his motions for judgment as a matter of law and for a new trial. We affirm.

¶2 Blessum and Shelver worked at the Heart of America Medical Center in Rugby in August 1993. Blessum was an operating room nurse, and Shelver was a nurse anesthetist. On August 18, Blessum went to Shelver's office to discuss her concerns about Shelver having informed his supervisor that he did not want to work with Blessum on pediatric cases. Each described the meeting very differently.

¶3 According to Blessum, Shelver immediately became angry when she calmly asked if it was true that he did not want to work with her. Shelver started shouting at her and shut the door to his office. He lost control and grabbed her by the shoulders and shook her violently. Shelver removed his hands when Blessum told him to do so. He threatened to have her fired if she mentioned the incident. Blessum fled the office in tears and fearing for her safety.

¶4 According to Shelver, Blessum was irrational and uncontrolled when she confronted him about his scheduling request. He told her he was uncomfortable with her in the operating room because she did not pay attention when he was administering anesthesia to patients. Blessum strongly disagreed and became more unreasonable. To reason with her, Shelver grabbed Blessum's shoulders and said, "Nancy, look, I am trying to tell you something. Listen to what I'm saying." He insists he did not shake Blessum when he grabbed her.

¶5 Blessum sued Shelver for assaulting her during that meeting. Shelver answered that he "was forced to take [Blessum] by the shoulders," but denied assaulting her. He counterclaimed that Blessum had slandered his reputation.

¶6 At trial, Dr. Hubert Seiler testified that he examined Blessum the next day. He found red marks on her shoulders that were consistent with Blessum's version. He testified Blessum had muscle spasms in her back, neck, and shoulders and experienced emotional problems including difficulties at work, sleeping problems, and loss of appetite. Seiler prescribed sleeping pills, tranquilizers, and muscle relaxants to alleviate Blessum's problems. Seiler also referred her to a psychiatrist and suggested physical therapy. Blessum's attorney asked Seiler whether her trauma could have caused her emotional problems to a reasonable degree of medical certainty. Over the objection of Shelver's attorney, Seiler testified it was less likely her problems were directly related to the assault.

¶7 Nurses Bibiana Carantes and Marilyn Goldade each testified. Carantes knew Blessum and Shelver were meeting nearby and could hear Shelver's angry voice over thirty feet away even after she closed her door. Both nurses talked to Blessum afterward, and she was upset and crying. They testified Blessum explained what had happened and showed them the marks on her shoulders.

¶8 Blessum testified, in her relationship with Shelver, he had constantly criticized her. Shelver made a standing objection to the relevancy of this testimony. The trial court overruled his objection and asked for specific events. Blessum testified Shelver had gotten angry during an eye surgery and had yelled at everyone. She also testified Shelver made critical comments about her nursing abilities during another surgery.

¶9 Blessum testified the incident with Shelver caused her physical and emotional problems. She described how Shelver grabbed her:

I felt his fingers digging in me. I could feel the pressure. He had a very strong hold on me. He was so angry and irate that when he grabbed me to shake me, you could just feel the anger coming through all the way through the fingers into your skin.

She described the physical and emotional reactions she suffered. Although the bruises disappeared in a few days, Blessum testified she spent two years in physical therapy and still had problems with her neck and back. She was emotionally wrecked and could not eat, sleep, or work. She took a twenty-month leave of absence from the hospital, thus giving up $40,000 in income.

¶10 On cross-examination, Shelver's attorney asked Blessum about the pain immediately after he removed his hands and referred to an interrogatory asking her about the pain's duration and any lasting effects. Shelver's attorney quoted the part of her answer describing the duration of her physical pain. The rest of her answer described the humiliation she endured and continuing emotional effects. Over the objection of Shelver's attorney, the trial court admitted the entire answer as an exhibit.

¶11 Shelver's attorney asked Blessum if she had gone to a hospital for trauma in 1978. Blessum's attorney objected that the time was too remote, and the trial court asked Shelver's attorney to make an offer of proof. Shelver's attorney simply responded that it was a proper question but admitted he had no evidence of trauma in 1978. The court sustained the objection of Blessum's attorney, and did not require Blessum to answer.

¶12 Shelver's attorney asked Blessum if the real reason she quit working for two years was because the director of nursing had ordered her removed from the operating room:

Q. (Shelver's attorney) Mrs. Blessum, you have stated here today that one of the reasons or the reason why you took this two-year leave from the hospital is because you were depressed and emotionally distraught and so forth. Did I understand you correctly?

A. Yes, sir.

Q. As a matter of fact, isn't it true that you were ordered removed from the operating room by the director of nursing?

A. I had already taken my leave of absence before that.

Q. But you were ordered out of the operating room by the director of nursing, were you not?

Blessum's counsel objected to this question as calling for hearsay. Shelver then offered an October 5, 1993, memo confirming Blessum had been transferred out of the operating room. The trial court ruled Blessum's testimony about a transfer order was hearsay, but left it open for Shelver's attorney to otherwise offer the October 5 memo into evidence or to have someone else testify about Blessum's transfer. Shelver's attorney did not renew the subject later.

¶13 During rebuttal closing argument, Blessum's attorney made several critical remarks directed at Shelver's attorney. Shelver's attorney did not object to any of them.

¶14 In a combined general verdict, the jury decided Blessum should recover $45,000 in damages from Shelver, and dismissed Shelver's counterclaim. Shelver moved for judgment as a matter of law and for a new trial. He argued he was entitled to judgment notwithstanding the verdict because the evidence of assault and injury was insufficient. Shelver argued he deserved a new trial for incorrect evidentiary rulings, improper closing arguments, and an excessive damage verdict. The trial court denied both motions, and Shelver appealed, posing ten separately stated issues.

1. Liability For Assault

¶15 Without citing or discussing any comparable cases, Shelver argues he is entitled to judgment as a matter of law because the evidence, he contends, was insufficient to prove an assault or any injury from his conduct. Shelver argues there is no evidence that he acted wilfully to restrain or harm Blessum. Shelver also asserts Blessum's evidence linking his actions to her claimed injuries was insufficient, and that she failed to prove her loss of wages to a reasonable degree of certainty.

¶16 A post-trial motion for judgment as a matter of law seeks judgment notwithstanding the verdict. Barnes v. Mitzel Builders, Inc., 526 N.W.2d 244, 246 (N.D.1995). In considering a motion for judgment notwithstanding, the trial court must apply a rigorous standard with a view towards preserving a jury verdict, and so must we on review. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 166 (N.D.1985). As we explained in Fronk v. Meager, 417 N.W.2d 807, 813 (N.D.1987), we will affirm the denial of a motion for judgment notwithstanding the verdict unless the evidence when viewed in the light most favorable to the litigant opposing the motion, dictates a conclusion only for the movant.

¶17 The trial court instructed the jury that "[a] person commits an assault if he ... willfully causes bodily restraint or harm to another human being or places another human being in immediate apprehension of bodily restraint or harm." The evidence here, when viewed in the light most favorable to Blessum, supports the verdict that Shelver "willfully cause[d] [Blessum] bodily restraint or harm."

¶18 Shelver admitted he purposefully grabbed Blessum by the shoulders, and Blessum testified he shook her. In doing so, his grip was strong enough to leave marks on her shoulders and to cause her physical pain. This evidence was enough to prove Shelver intentionally grabbed Blessum without regard for possible harm to her. The element of physical restraint was clearly proven.

¶19 Blessum testified about the physical effects on her and her need for physical therapy, and other witnesses corroborated her testimony. Blessum also testified Shelver's acts caused her emotional pain and suffering. Finally, Blessum testified she could not work for twenty months after her traumatic experience. The evidence thus causally connected Shelver's conduct and Blessum's injuries.

2. New Trial

¶20 Shelver argues the trial court erred in failing to grant him a new trial. We review a trial court's denial of a motion for new trial under an abuse-of-discretion standard....