DeMars v. Carlstrom

Decision Date04 November 1997
Docket NumberNo. 97-316,97-316
Citation285 Mont. 334,948 P.2d 246
PartiesCynthia DeMARS, Plaintiff and Appellant, v. Connie CARLSTROM, Defendant and Respondent.
CourtMontana Supreme Court

Thomas J. Murphy; Conklin, Nybo, LeVeque & Murphy, P.C., Great Falls, for Plaintiff and Appellant.

Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, for Defendant and Respondent.

REGNIER, Justice.

In May 1996, plaintiff and appellant, Cynthia DeMars, filed an action in the District Court for the Tenth Judicial District in Fergus County against Connie Carlstrom to recover damages she incurred as a result of a single vehicle automobile accident allegedly caused by Carlstrom's negligence. Following trial, the jury returned a verdict finding DeMars comparatively negligent, and apportioning liability between the two parties. DeMars subsequently filed a motion for judgment notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., on the issue of liability. In the alternative, DeMars moved for a new trial on the issue of comparative negligence pursuant to § 25-11-102(7),MCA. On April 21, 1997, the District Court issued an order denying DeMars' alternative motions for judgment notwithstanding the verdict and for a new trial. For the reasons discussed below, we affirm.

The sole issue on appeal is whether the District Court erred by denying DeMars' motion for judgment notwithstanding the verdict or for a new trial on the basis that Carlstrom's testimony at trial did not constitute a judicial admission which would have precluded the jury from considering comparative negligence and apportioning liability between the parties.

FACTUAL BACKGROUND

On March 13, 1995, DeMars was injured in a single-vehicle automobile accident which occurred on a county road, commonly known as Thrill Hills Road, just south of Winifred, Montana. At the time of the accident, Carlstrom was driving and DeMars was a passenger, as were the parties two teenaged daughters and a mutual friend. The accident occurred when Carlstrom lost control of the vehicle, which rolled and landed on its top in a ditch near the side of the road.

DeMars filed suit on May 29, 1996, to recover her damages, alleging the accident was caused by Carlstrom's negligence. Carlstrom admitted that her negligence was a cause of the accident, but alleged comparative negligence as an affirmative defense. On February 12, 1997, the case went to trial before a jury on issues of comparative negligence and damages.

Following testimony by Carlstrom, DeMars moved fora directed verdict on the issue of comparative negligence. The court denied DeMars' motion, and the case went to the jury on issues of comparative negligence and damages. On February 14, 1997, the jury rendered a verdict setting damages at $45,000, but finding DeMars contributorily negligent in causing the accident. The jury apportioned 40 percent liability to DeMars and 60 percent liability to Carlstrom.

On March 12, 1997, DeMars filed a motion for judgment notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., on the issue of liability. In the alternative, DeMars moved for a new trial pursuant to § 25-11-102, MCA, which provides that the court may order a new trial where there was an error in law occurring at the trial and excepted to by the party making the application and which materially affected the substantial rights of the aggrieved party. Section 25-11-102(7), MCA. In an order dated April 21, 1997, the District Court denied DeMars' post-trial motions. It is from this order that DeMars appeals.

DISCUSSION

Did the District Court err by denying DeMars' motion for judgment notwithstanding the verdict or for a new trial on the basis that Carlstrom's testimony at trial did not constitute a judicial admission which would have precluded the jury from considering comparative negligence and apportioning liability between the parties?

A. Motion for judgment notwithstanding the verdict.

We have held that, in evaluating a motion for judgment notwithstanding the verdict, "the court must view all of the evidence in a light most favorable to the non-moving party. " Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 271-72, 824 P.2d 263, 265. Further, we have recognized that a motion for judgment notwithstanding the verdict is appropriate "only where there is a complete absence of any evidence to warrant submission to a jury." Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229-30 (citing Jacques v. Montana Nat'l Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325). The District Court should not grant a motion for judgment notwithstanding the verdict "[u]nless there is a complete absence of any credible evidence in support of the verdict." Ryan, 279 Mont. at 510, 928 P.2d at 230 (citing Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds by Martel v. Montana Power Co. (1988), 231 Mont. 96, 752 P.2d 140,)). Here, DeMars argues that Carlstrom, while testifying at trial, admitted the accident was entirely her fault and thereby made a binding judicial admission which should have prevented her from thereafter contesting liability. Specifically, DeMars points to the following testimony rendered by Carlstrom while under cross-examination:

Q: [By DeMars counsel] At any rate, at one point, and actually for several months, you said that [the accident] was all your fault. Isn't that true?

A: [By Carlstrom] I don't believe I have ever changed it, how guilty and how responsible I feel about that car wreck.

Q: And I am not trying to make you feel bad, but I need to ask you questions. Is it true that you have said it was all your fault?

A: Yes, it is.

Q: And you said that for a number of months on a number of different occasions. Isn't that correct?

A: Yes, and I believe I have also said that here today.

DeMars contends that this portion of Carlstrom's testimony constitutes a binding judicial admission with respect to the issue of liability and, therefore, argues the District Court erred in permitting the jury to consider the issue of comparative fault and in permitting it to apportion liability for the accident. In support of her contention that Carlstrom made a binding judicial admission, DeMars points to our decision in Rasmussen v. State Fund (1995), 270 Mont. 492, 893 P.2d 337.

In Rasmussen, we described a judicial admission as "an express waiver made in court by a party or his attorney conceding the truth of an alleged fact." Rasmussen, 270 Mont. at 497, 893 P.2d at 340. We noted that such an admission has a conclusive effect upon the party who makes it, and prevents that party from introducing further evidence to prove, disprove, or contradict the admitted fact. Rasmussen, 270 Mont. at 497, 893 P.2d at 340 (citing Kohne v. Yost (1991), 250 Mont. 109, 112, 818 P.2d 360, 362). In Kohne, we recognized that [f]or a judicial admission to be binding, it must be an unequivocal statement of fact. Kohne, 250 Mont. at 113, 818 P.2d at 362. DeMars contends that Carlstrom, by agreeing the accident was all her fault, made just such an unequivocal statement of fact and that the court consequently erred in permitting the jury to consider the issue of comparative negligence.

Carlstrom, however, argues her testimony did not constitute a binding judicial admission because it was made under pressure of cross-examination by a party to the litigation, rather than by an attorney, and because the alleged admission of liability was by no means unequivocal in light of conflicting evidence of record. Carlstrom additionally argues the statements she made on the stand do not qualify as judicial admissions because they were not statements of fact, but were rather expressions of opinion or legal conclusions.

Having considered the record on appeal, we conclude, as did the District Court below, that Carlstrom did not make a binding judicial admission as...

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