Gertken v. Farmers Elevator of Kensington, Minn., Inc., C9-86-2147

• Citation: 411 N.W.2d 550
• Decision Date: 01 September 1987
• Docket Number: No. C9-86-2147,C9-86-2147
• Parties: James GERTKEN as Trustee for the next of kin of Shirley Gertken, deceased, and James Gertken, individually, Appellant, v. FARMERS ELEVATOR OF KENSINGTON, MINNESOTA, INC., et al., Robert Holthaus, etc., Respondents.
• Court: Court of Appeals of Minnesota

Page 550

411 N.W.2d 550

James GERTKEN as Trustee for the next of kin of Shirley

Gertken, deceased, and James Gertken, individually, Appellant, v. FARMERS ELEVATOR OF KENSINGTON, MINNESOTA, INC., et al., Robert Holthaus, etc., Respondents.

No. C9-86-2147.

Court of Appeals of Minnesota.

Sept. 1, 1987.

Review Denied Oct. 28, 1987.

Syllabus by the Court

1. Trial court did not err in excluding appellant's theory of negligent failure to provide post-collision assistance where it appears as a matter of law that respondent had provided such assistance.

2. Evidence was sufficient to support jury's finding of no negligence on the part of automobile driver who crossed over center line.

Paul J. Wocken, Willenbring, Lickteig & Dahl, Cold Spring, for appellant.

Henry A. Cousineau, Jr., Mark A. Gwin, Cousineau, McGuire, Shaughnessy & Anderson, Minneapolis, John H. Scherer, Donohue, Rajkowski, Hansmeier, Grunke & Jovanovich, Ltd., St. Cloud, for respondents.

Heard, considered and decided by the court en banc.

OPINION

HUSPENI, Judge.

This is a wrongful death action arising from an automobile collision. The jury found no negligence had been committed by either of the drivers. The trial court denied appellant's motion for judgment notwithstanding the verdict or for new trial and this appeal followed. Appellant claims the trial court erred by refusing to allow evidence regarding failure to lend reasonable post-collision assistance pursuant to Minn.Stat. § 169.09, subd. 3(a) (Supp.1983). Additionally, appellant claims there was no evidence to rebut the presumption of the car driver's negligence. We affirm.

FACTS

Appellant James Gertken brought this wrongful death action following the death of his wife, Shirley Gertken, on November 9, 1983. During the early morning hours on that day, Mrs. Gertken was riding to work in St. Cloud as a passenger in a car driven by her sister, Jeanie Holthaus. Wet snow was falling, and the highway was covered with one to two inches of slush. The car crossed the center line, sliding rear end first into the oncoming traffic lane at a speed estimated at between 20 and 60 miles per hour.

A Mack truck and trailer driven by respondent Wilfred Lintel was approaching the Holthaus car in the oncoming traffic lane at a speed of about 40 to 50 miles per hour. The right front of the truck collided with the left rear portion of the car, reversing the car's path of travel and forcing it into a water-filled ditch. The driver of the car was killed by the impact. Shirley Gertken was thrown from the vehicle into the ditch.

Lintel, shaken but unhurt, stopped his truck about 300 feet away from the car. He alighted from his truck and proceeded to "flag down" passing motorists to assist him. Scott Lewandowski, a motorist who had witnessed the accident, stopped and offered assistance. At trial, Lewandowski testified:

I pulled up and asked [Lintel] if he needed a lift into town. I thought, mechanical problems. And he said, "I just hit a car. Would you go into town and get some help." I said, "I know CPR." And I pulled my car in front and ran back to the car, and then I walked back. I stopped--I came up from the road. I stopped another car, and I said, "Would you please go call an ambulance and a rescue squad. This person is dead in the car." I didn't see the second person. I walked back to the trucker and I said, "The person is dead," and he just said, "Oh, my God." * * * And so we just sat and waited for the Highway Patrol, and he was--he really looked faint and sick. He felt really bad, you know.

This is consistent with Lintel's testimony at a deposition taken prior to trial. He stated:

Q. * * * [Y]ou could see [the car] in the ditch?

A. Yes.

Q. Was Mr. Lewandowski looking at the wreckage to see if anyone was okay, or do you know?

A. Well, he told me he was going to go back and look.

Q. And you said you were unable to do that; is that correct?

A. Yes.

Q. Did you talk to him after he went to look?

A. Yes.

Q. What was involved in that conversation; do you remember that?

A. I asked him if anybody, you know, was alive, and he said, "No, it's gone."

Q. And did he say how many people were riding in the other vehicle?

A. No.

As the testimony indicates, Lewandowski did not see Mrs. Gertken's body in the ditch. A rescue worker who arrived at the scene a short time later observed a human foot protruding from water in the nearby ditch. Members of the rescue squad then discovered Mrs. Gertken's body.

Although no autopsy was performed, the county coroner concluded that Mrs. Gertken died from drowning after entering the ditch. A laceration to the scalp was the only injury discovered through visual examination of the body.

Mr. Gertken brought a wrongful death action against Lintel and Holthaus, alleging negligence. Lintel's employer was joined as respondent superior. Three months prior to trial, Gertken's attorney notified respondents that he intended to introduce evidence of Lintel's negligent failure to render post-collision assistance pursuant to Minn.Stat. § 169.09, subd. 3(a). At trial, Gertken was prepared to present evidence to support this theory. The trial court refused to admit the evidence because the complaint failed to plead this theory of negligence with specificity and because the court concluded that the statute did not give rise to a private right of action. Gertken then moved to amend the complaint to include specific language, but the court denied the motion.

The jury found Gertken had sustained damages of $200,000, but found no negligence on the part of either driver. Gertken moved for judgment notwithstanding the verdict and for a new trial, but the court denied the motion. The trial court reasoned in the memorandum accompanying its order:

[A] new trial is requested by [appellant] on the ground that the trial court's denial of the motion to amend their complaint to include a cause of action Minn.Stat. § 169.09 constitutes reversible error. * * * [Appellant] neglected to make this motion until the day the trial commenced. The untimeliness of [appellant's] motion provides one reason for denying it. In addition, under the facts of this case, no reasonable jury could find that Lintel had failed to render reasonable assistance. The evidence is such that it appears * * * Lintel did everything humanly possible to assist [appellant's] decedent. Finally, it is worthy of note that the statute under which [appellant] seek[s] recovery is one designed to regulate conduct after a traffic accident occurs. There is nothing in the language of the statute to indicate that it creates a private right of action.

Gertken now appeals from the order denying his motion.

ISSUES

1. Did the trial court err in refusing to admit evidence regarding a duty to render post-collision assistance?

2. Was there sufficient evidence to support the jury's verdict of no negligence on the part of Jeanie Holthaus?

ANALYSIS

An order denying a motion for judgment notwithstanding the verdict is a non-appealable order. State v. Hagen, 382 N.W.2d 556, 558 (Minn.Ct.App.1986). If the arguments raised in the new trial motion cover essentially the same area, this court may review the issues. Id. Gertken's arguments for judgment notwithstanding the verdict are the same as his arguments for new trial. As such, the arguments are properly reviewable.

I.

Minn.Stat. § 169.09, subd. 3(a) (Supp.1983) provides:

The driver of any vehicle involved in an accident resulting in bodily injury to or death of any person * * * shall render reasonable assistance to any person injured in the accident.

Gertken claims this statute created a duty which Lintel breached when he failed to walk back to the wreckage and render assistance to Shirley Gertken and Jeanie Holthaus. Gertken claims Lintel's failure to pull Shirley Gertken out of the ditch was the cause of her death by drowning. While the record supports the contention that Lintel failed to walk back to the car, we cannot conclude that Lintel failed to provide assistance under the facts of this case.

Lintel asked Lewandowski to summon help. Instead, Lewandowski stated that he knew CPR and proceeded to go to the Holthaus car to render whatever assistance he could. He found the body of Holthaus and determined that she was dead. He did not discover Mrs. Gertken's body. Lewandowski then returned to Lintel and told him that Holthaus, the only person he had seen, was dead. Based on this information, Lintel and Lewandowski waited for the highway patrol to arrive. They also placed safety markers to warn other drivers.

The facts show that Lintel took steps to obtain assistance. Relying upon the information reported by Lewandowski, Lintel understandably assumed that he could render no further assistance to the occupant of the other vehicle. As a result, we cannot agree with Gertken that Lintel failed to provide emergency assistance to Mrs. Gertken.

In consideration of the facts of this case, any attempt by this court to address further the issue of the applicability of Minn.Stat. § 169.09, subd. 3(a) would result in an opinion that was advisory only. Even if we were to assume for purposes of our analysis that violation of section 169.09 might give rise to a private cause of action, there could be no such cause of action here. We agree with the trial court that "no reasonable jury could find that [respondent] failed to render reasonable assistance." In view of our resolution of this issue, we do not address the propriety of the trial court's refusal to allow amendment of the complaint.

II.

Gertken also seeks a new trial because he claims the jury's finding that Jeanie Holthaus was not negligent was against the weight of the evidence. A new trial will be granted only where the verdict is so contrary to the evidence as to imply that the jury failed to consider all the evidence or acted from some mistake, improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment....