Boyle v. Christensen

• Decision Date: 03 September 2009
• Docket Number: No. 20080582-CA.,20080582-CA.
• Parties: John BOYLE and Norrine Boyle, Plaintiffs and Appellants, v. Kerry CHRISTENSEN, Defendant and Appellee.
• Court: Utah Court of Appeals

219 P.3d 58

2009 UT App 241

John BOYLE and Norrine Boyle, Plaintiffs and Appellants, v. Kerry CHRISTENSEN, Defendant and Appellee.

No. 20080582-CA.

Court of Appeals of Utah.

September 3, 2009.

Roger P. Christensen and Scot A. Boyd, Salt Lake City, for Appellants.

Kristin A. Vanorman and Jeremy G. Knight, Salt Lake City, for Appellee.

Before Judges THORNE, DAVIS, and McHUGH.

OPINION

THORNE, Associate Presiding Judge:

¶ 1 John and Norrine Boyle, husband and wife, appeal from the district court's judgment awarding Mr. Boyle damages of $62,500 against Kerry Christensen. We affirm the judgment of the district court.

BACKGROUND

¶ 2 In 2004, Christensen struck Mr. Boyle with his vehicle while Mr. Boyle was walking in a crosswalk located in a grocery store parking lot. As a result, Mr. Boyle suffered back injuries that ultimately required back surgery. The surgery was only partially successful and left Mr. Boyle with chronic back pain. In 2005, the Boyles sued Christensen for negligence and loss of consortium.

¶ 3 In January 2008, Christensen filed a motion to dismiss Mrs. Boyle's loss of consortium claim. Christensen's motion argued that loss of consortium as a cause of action is governed by statute and requires an "injury" as that term is statutorily defined. See Utah Code Ann. § 30-2-11 (Supp.2008). The district court agreed with Christensen that Mr. Boyle's claimed injuries did not meet the statutory definition of an injury and dismissed Mrs. Boyle's loss of consortium claim.

¶ 4 Trial on Mr. Boyle's negligence claim took place in June 2008. As trial approached, Mr. Boyle submitted a proposed jury questionnaire that included specific questions intended to elicit jurors' views regarding damages and tort reform. Christensen also submitted proposed voir dire questions, and the district court edited and combined the parties' proposed questions into a single set of voir dire questions that did not contain the exact questions posed by either party. The district court conducted voir dire using its own questions without objection from either party. At the close of voir dire, both Mr. Boyle and Christensen passed the jury for cause.

¶ 5 Christensen had admitted liability for Mr. Boyle's injuries, and trial commenced solely on the issue of damages. After each side rested its case, the parties made their closing arguments to the jury. During Christensen's closing argument, his counsel characterized Mr. Boyle's closing argument relating to pain and suffering damages as follows:

It's a per diem analysis. How many days has it been since the accident? How many days for the rest of his life? And how much per day is that worth? That's what's been done here. That's how we get verdicts like in the McDonald's case with a cup of coffee.

Mr. Boyle's counsel timely objected to the reference to "the McDonald's case"—a New Mexico lawsuit docketed as Liebeck v. McDonald's Restaurants, case no. D-202-CV-9302419, that resulted in a famously large 1994 jury verdict—stating that "it's prejudicial and it's not in evidence." The district court overruled this objection, and Christensen's counsel completed her closing argument without further reference to Liebeck.

¶ 6 The jury ultimately rendered Mr. Boyle a damages verdict of $62,500, of which $27,800 was for general pain and suffering. The jury's general damages award was significantly less than that sought by Mr. Boyle, and he appeals from the resulting judgment. Mrs. Boyle also appeals from the dismissal of her loss of consortium claim.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Mr. Boyle first argues that the district court erred in failing to question potential jurors on the issues of juror bias and tort reform. "We review challenges to the trial court's management of jury voir dire under an abuse of discretion standard." Bee v. Anheuser-Busch, Inc., 2009 UT App 35, ¶ 8, 204 P.3d 204 (internal quotation marks omitted). However, alleged deficiencies in voir dire must be brought to the district court's attention in order to be preserved for appeal. See Doe v. Hafen, 772 P.2d 456, 458 (Utah Ct.App.1989).

¶ 8 Next, Mr. Boyle argues that the district court erred by allowing Christensen to reference Liebeck in his closing argument. "The determination of whether remarks made during closing argument improperly influenced the verdict is within the sound discretion of the trial court." Green v. Louder, 2001 UT 62, ¶ 35, 29 P.3d 638.

¶ 9 Finally, Mrs. Boyle argues that the district court erred when it granted Christensen's motion to dismiss her loss of consortium claim. "We review a trial court's ruling on a motion to dismiss for correctness, according no deference to the trial court." Code v. Utah Dep't of Health, 2007 UT App 390, ¶ 3, 174 P.3d 1134; see also Buckner v. Kennard, 2004 UT 78, ¶ 9, 99 P.3d 842.

ANALYSIS

I. Voir Dire on Juror Bias and Tort Reform

¶ 10 Mr. Boyle's first argument on appeal is that the district court erred in failing to conduct voir dire questioning on issues relating to juror bias and tort reform. In his jury questionnaire, Mr. Boyle proposed the following voir dire questions:¹

4[.] What are your feelings or opinions about people who bring personal injury lawsuits? If supported by the evidence, could you award a large amount of money to the plaintiff in this case?

5[.] If you were seriously hurt or injured by the negligence of another, would you sue? Please explain your answer:

6[.] If supported by the evidence, could you award money damages for

a. Future physical pain

b. Mental anguish

c. The impact on a wife of partially disabling injuries to her husband?

d. Future medical bills

If you answered NO to any of the above, please explain:

7[.] Do you believe the law should impose limits on money that can be awarded for pain and suffering[?] If YES, what do you believe these limitations should be?

The district court did not ask the potential jurors these questions but, rather, conducted voir dire using a set of questions that it had drafted itself.

¶ 11 The district court's voir dire asked potential jurors the following questions relating to juror attitudes about personal injury claims and damages:

13. Do you have any feelings or beliefs that would prevent you from being fair and impartial regarding persons who have personal injury disputes and who choose to resolve those disputes by going to court?

14. Do you have any personal, religious or other beliefs that would prevent you from awarding damages in a large amount, small amount, or zero amount, if warranted and justified by the evidence and the law given you by the Court?

15. Given all considerations and everything you know about this case so far, can you be a fair, impartial, neutral, judge of the facts and follow the law as given to you by the Court?

At no time, however, did Mr. Boyle ever indicate to the district court that the court's questions failed to adequately address the concerns posed by his own questions, and Mr. Boyle ultimately passed the jury for cause.

¶ 12 Mr. Boyle argues on appeal that his mere submission of specific jury questions relating to damages and tort reform preserves for appeal his claim that the voir dire questions the district court actually posed were inadequate. We disagree. "[I]n order to preserve an issue for appeal[,] the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original) (internal quotation marks omitted). Here, the district court attempted to reconcile the parties' proposed jury questions into a single set of voir dire questions that addressed each party's concerns. If Mr. Boyle believed that the district court's modification of his questions constituted error on the part of the district court, it was his obligation to bring this alleged error to the district court's attention. His failure to do so constitutes a waiver of the issue as one for appeal. See id.; compare Doe v. Hafen, 772 P.2d 456, 458 (Utah Ct. App.1989) (finding no preservation where a party failed to "call the judge's attention to [a] specific question" in a set of voir dire questions that had been rejected by the trial court), with Alcazar v. University of Utah Hosps. & Clinics, 2008 UT App 222, ¶ 5, 188 P.3d 490 (addressing substantive issue where appellant had "repeatedly attempted to persuade the trial court to give the requested voir dire questions, including briefing the rather direct authority from this court on the issue, [but] the court declined and offered its own unique philosophical approach to voir dire in medical malpractice cases").

¶ 13 Mr. Boyle argues for the first time in his reply brief that the district court's failure to question the jury on the requested issues constitutes plain error and is thus an exception to the preservation requirements. See generally Nielsen v. Spencer, 2008 UT App 375, ¶ 14, 196 P.3d 616 (discussing plain error), cert. denied, 207 P.3d 432 (Utah 2009). In the past, we have refused to consider arguments of plain error raised for the first time in an appellant's reply brief, even if the plain error argument is in response to a dispute over preservation raised for the first time in the appellee's brief. See, e.g., Moore v. Smith, 2007 UT App 101, ¶ 24, 158 P.3d 562, cert. denied, 182 P.3d 910 (Utah 2007). Accordingly, we do not conduct a plain error analysis here.

¶ 14 We conclude that Mr. Boyle failed to adequately preserve for appeal his claim that the district court's voir dire questioning was inadequate. Although the district court did not ask the exact questions submitted by Mr. Boyle, it did ask related questions. Thereafter, Mr. Boyle passed the jury for cause without objection and without explaining the alleged harm resulting from the fact that his proposed questions had not been asked. Under these circumstances, Mr. Boyle failed to preserve any claim of error arising from the district court's...