Brockie v. Omo Const., Inc.

• Decision Date: 14 January 1993
• Docket Number: No. 91-585,91-585
• Citation: 49 St.Rep. 1092,844 P.2d 61,255 Mont. 495
• Parties: Michael BROCKIE, as Personal Representative of the Estate of Aric C. Brockie, Deceased, Plaintiff and Appellant, v. OMO CONSTRUCTION, INC., Defendant and Respondent.
• Court: Montana Supreme Court

Page 61

844 P.2d 61

255 Mont. 495

Michael BROCKIE, as Personal Representative of the Estate of Aric C. Brockie, Deceased, Plaintiff and Appellant, v.OMO CONSTRUCTION, INC., Defendant and Respondent.

No. 91-585.

Supreme Court of Montana.

Submitted on Briefs June 11, 1992.

Decided Dec. 16, 1992.

Rehearing Denied Jan. 14, 1993.

Kurt M. Jackson, Hoyt and Blewett, Great Falls, for plaintiff and appellant.

Michael J. Milodragovich and Margaret L. Sanner, Milodragovich, Dale and Dye, Missoula, for defendant and respondent.

McDONOUGH, Justice.

Michael Brockie, personal representative of the estate of Aric C. Brockie, appeals from an order of the First Judicial District, Lewis and Clark County, denying his motion for a new trial.We affirm in part and reverse in part.

The following issues are presented on appeal:

1.Whether the District Court erred in denying Brockie's motion for a new trial;

2.Whether the District Court erred in refusing to instruct the jury that Omo Construction, Inc.'s violation of the Manual on Uniform Traffic Control Devices constituted negligence as a matter of law;

3.Whether the District Court erred in refusing to instruct the jury that mere compliance with traffic regulations does not necessarily constitute due care; and

4.Whether the District Court erred in excluding certain impeachment evidence and by admitting certain prejudicial evidence.

On November 26, 1989, Aric Brockie was killed in a one car accident on I-94 near the Huntley Interchange east of Billings.Aric Brockie was the passenger in a vehicle driven by a friend.The two were returning to Billings after a Thanksgiving holiday in Miles City.The vehicle skidded as it approached an icy bridge.The car slid off the highway into the median where it struck a flasher board owned by Omo Construction, Inc.(Omo).

Omo was performing traffic control and guardrail work on I-94 as part of a construction contract with the State Highway Department.On Wednesday, November 22, 1989, Omo had installed a new guardrail and median hazard closures on a bridge structure.In order to erect the guardrail on the median sides of the bridge, the crew was required to close the passing lane of the interstate in each direction of travel.Omo erected a number of advance warning signs for each lane plus two portable "arrow boards" or "flasher boards" which directed traffic with flashing arrows.

At the end of the day, on Wednesday, November 22, 1989, the foreman on the project directed worker Michael Stookey to remove the equipment from the highway and store it for the Thanksgiving holiday.Stookey removed the advance warning signs to a location east of the bridge next to the highway right-of-way fence.He pulled other signs to the parking lot of the Longhorn Cafe.Upon instructions from the foreman he placed the flasher boards in the middle of the median at either end of the bridge.

Highway Patrol Officer Virginia Kinsey drove past the area several times during her shift on November 26, 1989.She testified that she had the authority to have construction equipment removed if it was hazardous to the public.She saw the flasher board and did not believe it was in a hazardous area.Officer Kinsey responded to the Brockie accident and along with two other officers, made measurements at the scene.She testified that the flasher board was 27 feet 2 inches from the yellow median strip of the westbound lane at the time of impact.Traffic control provisions of the contract required compliance with highway safety standards.A "30 foot clear" zone requirement prohibits storage of a traffic control device within 30 feet of the traveled highway.

Omo's expert, Dr. Thomas Blotter, an accident reconstruction expert, opined that the flasher board was parked between 34 and 48 feet from the westbound lane at the time of impact.Dr. Blotter testified at trial, basing his analysis on motion theory and kinematics.Since Brockie did not put an expert on the stand, Dr. Blotter's testimony went uncontroverted.

Francis H. Rice, the jury foreman, after the close of the evidence, went to the library of Carroll College to do some research about Dr. Blotter's testimony.Rice had taken some physics courses in college, and by affidavit, stated he wished to refresh his memory about physics principles concerning kinematic theory and motion theory.He stated his research clarified the testimony of Dr. Blotter.Rice stated that he mentioned to only one other juror that over the weekend he had done some research into kinematic theory and motion theory.However, affidavits of two separate jurors stated Rice mentioned his research to them in the jury room.By affidavit Rice stated he did not mention his research during deliberations.

Brockie's counsel, upon hearing that Rice had done some independent research, filed a motion for a new trial with the District Court.The District Court denied Brockie's motion.This appeal followed.Our standard of review is whether or not the District Court abused its discretion in denying Brockie's motion for a new trial and ruling on evidentiary matters.Steer, Inc. v. Dept. of Revenue(1990), 245 Mont. 470, 803 P.2d 601.

I

Whether the District Court erred in denying Brockie's motion for a new trial.

The District Court found that the actions of Mr. Rice amounted to jury misconduct.However, relying on Arthur v. Washington Iron Works(1978), 22 Wash.App. 61, 587 P.2d 626, the District Court found that Rice's conduct was not prejudicial to Brockie.In Arthur, the jury foreman went to the public library and looked for handbooks on rigging and informed the other jurors they were available.He also examined the yellow pages to see if the experts who testified were listed.Arthur, 587 P.2d at 628.The court of appeals upheld the trial court's determination that the library incident went to the credibility of the witness and that the telephone directory incident gave extra status to the expert listed.Arthur, 587 P.2d at 631.

Generally, courts in both civil and criminal cases have held that to warrant a new trial, the misconduct must be such that actual or potential injury results to the losing party.Section 25-11-102, MCA, governs grounds for a new trial.It provides in part:

The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party;

(1) irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

(2) misconduct of jury.Whenever any one or more of the jurors have been induced to assent to any general or special verdict or to a finding on any question submitted to them by the court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

See alsoRule 606, M.R.Evid.

We agree with the District Court that the actions of juror Rice constituted jury misconduct, as shown by his affidavit, and the affidavit of two other jurors.The question before us remains whether actual or potential injury to Brockie resulted from Rice's conduct, and denied Brockie a fair trial.We have said in Putro v. Baker & Mannix Electric, Inc.(1966), 147 Mont. 139, 410 P.2d 717, that the "guiding principle in our legal system is fairness" and that both sides of the lawsuit are entitled to a fair trial.Putro at 147, 410 P.2d at 722.We went on to state that there is no practical method to determine whether the outcome would be different had the misconduct not occurred.We said: "The trial court should have declared a mistrial in justice to itself as well as to parties, so that a fair trial may result and the verdict when rendered may be entitled to the respect of both parties and the confidence of the court."Putro at 148, 410 P.2d at 722.

In Putro a newspaper article disclosed that the defendant plead guilty to manslaughter, in a related criminal case, as a result of the accident in question.One of the jurors clipped the article and brought it into the jury room.The jurors stated that the article did not influence their verdict.Further, two of the jurors stated that they dropped the subject because they did not think they should read the article.We held that the possibility of influence existed, and probable prejudice resulted.Putro at 149, 410 P.2d at 723.

In Ahmann v. American Fed. Sav. & Loan Ass'n(1988), 235 Mont. 184, 766 P.2d 853, we held that any influence the alleged remark of the bailiff may have had on the jury did not affect the rights of the Ahmanns, and affirmed the District Court's denial of Ahmann's motion for a new trial.In Ahmann the jurors raised a question for the judge.The bailiff said the judge wouldn't answer it until after the trial.However, he did not preclude the jurors from pursuing the matter.Ahmann at 191, 766 P.2d at 857.

In the present case, Omo presented the expert testimony of Dr. Blotter at the trial.Dr. Blotter testified to the theory of kinematics and motion theory in relation to the location of the flasher board at the time of impact.Dr. Blotter's testimony was not contested or controverted by an expert, but was contested by the testimony of highway patrolman Kinsey.The location of the flasher board was at the very heart of the evidence.Francis Rice by affidavit, related that he went to the Carroll College library to research the theory of kinematics and motion theory and it clarified Dr. Blotter's testimony.Affidavits of two other jurors confirmed he had mentioned this to them in the jury room.Probable prejudice resulted from Rice's misconduct.Rice's independent alleged clarification of Dr. Blotter's testimony affected the rights of Brockie for any statements by Rice in the jury room relative to the placement and positions of the sign, could in effect make Rice a witness as to those...