Giambra v. Kelsey
| Decision Date | 26 June 2007 |
| Docket Number | No. 05-335.,05-335. |
| Citation | 2007 MT 158,338 Mont. 19,162 P.3d 134 |
| Parties | David GIAMBRA and Alexandria Giambra husband and wife on behalf of their minor child, Zadkeil Giambra, Plaintiffs and Appellants, v. Craig KELSEY and Christine Kelsey, husband and wife and Nicholas Kelsey, Defendants and Respondents. |
| Court | Montana Supreme Court |
For Appellants: Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana.
For Respondents: John R. Gordon, Spoon Gordon, P.C., Missoula, Montana.
¶ 1 David and Alexandria Giambra (collectively, "the Giambras") filed suit on behalf of their minor son, Zadkiel Giambra ("Zadkiel"), against Craig and Christine Kelsey (collectively, "the Kelseys") and their son, Nicholas Kelsey ("Nicholas"), in the Sixth Judicial District Court, Park County, seeking to recover damages arising out of a personal injury accident. The Kelseys and Nicholas then filed a counterclaim against the Giambras. Before the case was submitted to the jury, Zadkiel was added as a real party in interest. The court then determined that the Kelseys were not negligent and dismissed them from the case. Further, the court also determined that the Giambras were not negligent, dismissed the Kelseys' counterclaim, and dismissed the Giambras from the case. The case then went to the jury as Zadkiel Giambra v. Nicholas Kelsey.
¶ 2 The jury awarded Zadkiel compensatory damages for medical expenses, but did not award compensatory damages for pain and suffering. The jury returned a special verdict finding Zadkiel forty percent negligent and Nicholas sixty percent negligent. Accordingly, the District Court reduced the jury's award by forty percent. Zadkiel filed a Rule 59 Motion for a New Trial, but the District Court did not rule on this motion.1 Zadkiel appeals. We affirm.
¶ 3 Zadkiel states two issues on appeal, but raises a number of issues within his arguments. We therefore restate the issues as follows:
1. Did the District Court err when it failed to grant Zadkiel's Rule 59 Motion for a New Trial based on the jury's award of zero compensatory damages for pain and suffering?
2. Did the District Court abuse its discretion when it refused to permit the issue of compensatory damages for emotional distress and loss of course of life to go to the jury?
3. Did the District Court err in determining that a claim of negligence per se does not preclude the defense of contributory negligence?
¶ 4 Although this Court received no trial transcript, we have discerned the following facts from the District Court exhibits and the District Court record.
¶ 5 This action stems from an accident which occurred on November 11, 2000, in Livingston, Montana. Zadkiel and four other boys were sledding in Livingston on West Gallatin Street, a paved roadway, near its intersection with North Second Street. The section of West Gallatin Street where the boys were sledding, also known as Yellowstone Hill or the North Short Hill, has a very steep incline. West Gallatin Street was closed to vehicular traffic on November 11, 2000, because it was snow-packed and covered with glare ice.
¶ 6 After driving by and observing the boys sledding in the street, Christine Kelsey sent Nicholas to drive down Yellowstone Hill to tell the boys to stop sledding because it was too dangerous. Christine was concerned that other drivers might not heed the road closure signs. Nicholas was seventeen years old at the time and apparently had had his driver's license for a short amount of time.
¶ 7 Nicholas drove the Kelsey's full-size 1988 Ford Bronco ("the Bronco") down the hill. He stopped to speak with some of the boys and told them to stop sledding in the street. Nicholas then resumed his travel down the hill. Precisely how Zadkiel ended up in front of the Bronco is unclear. Without a transcript, we simply observe that the parties' briefs paint two different pictures. Zadkiel suggests that at approximately the same time as Nicholas resumed driving down the hill, Zadkiel got on his sled and started to sled down the hill. Nicholas posits that Zadkiel jumped on his sled in an attempt to race the Bronco to the bottom of the hill. Regardless, Zadkiel apparently then fell off of his sled in front of the Bronco that Nicholas was driving.
¶ 8 Nicholas did not see Zadkiel lying in the roadway and proceeded to drive forward. The right front tire of the Bronco rolled over Zadkiel's chest. Zadkiel passed under the Bronco as Nicholas struggled to stop the Bronco.
¶ 9 An ambulance arrived at the scene of the accident and the paramedics found Zadkiel lying on packed snow and ice. According to reports filed by the paramedics, Zadkiel experienced difficulty breathing and complained of pain in his right chest, upper abdomen, and middle back. However, Zadkiel's airway was open and there were no visible broken bones.
¶ 10 Zadkiel was transported via ambulance to Livingston Memorial Hospital ("Livingston Memorial"). Zadkiel apparently remained conscious and alert throughout the entire ordeal and remembered his chest being rolled over by one wheel of the Bronco. Doctors in the emergency room at Livingston Memorial diagnosed Zadkiel with chest wall and upper abdomen trauma. A chest x-ray revealed that Zadkiel's right lung had collapsed and a CT scan confirmed that there was air and blood in his chest cavity. Zadkiel also suffered an injury to his lung causing blood to collect in the lung, a loss of normal lung structure and function, and impaired gas exchange. The CT scan revealed that the right lobe of Zadkiel's liver was bruised, torn, and bleeding.
¶ 11 Doctors in Livingston Memorial's emergency room inserted a tube into Zadkiel's chest and drained blood and fluid from the chest cavity. Zadkiel was given a local anesthetic and morphine for pain. He was then flown from Livingston Memorial to Billings Deaconess Hospital ("Deaconess") in an Air Ambulance.
¶ 12 Zadkiel's chest tube was removed on November 12, 2000. He remained in Deaconess until November 14, 2000, was discharged on a regular diet, and was not prescribed any medications. Additionally, Zadkiel was instructed to stay out of school until after Thanksgiving and to stay home for the next two weeks. Zadkiel's medical expenses were $13,480.12 in total.
¶ 13 The Giambras filed suit on August 9, 2001, in District Court, alleging the following in their complaint: first, that Nicholas was negligent per se in failing to comply with state statutory laws governing the operation of a motor vehicle; second, that the Kelseys were negligent in entrusting the Bronco to Nicholas; and third, that the Kelseys' actions constituted actual malice. The Giambras further alleged that Nicholas' negligence per se and the Kelsey's negligence and actual malice were the cause of Zadkiel's personal injuries, pain and suffering, and loss of course of life.
¶ 14 On April 29, 2004, the District Court granted the Kelseys' and Nicholas' motion to amend their original answer and assert a counterclaim against the Giambras. In their counterclaim, the Kelseys and Nicholas alleged that the Giambras knew or should have known that Zadkiel was sledding in the street and that such conduct was unlawful and dangerous. They further alleged that the Giambras were negligent in their supervision of Zadkiel. However, the Kelseys and Nicholas alleged no injury to themselves as a result of the Giambras' supposed negligence.
¶ 15 The parties proceeded to trial on February 16, 2005. According to the parties' appellate briefs, Nicholas admitted during the trial that he was negligent. Therefore, at the close of evidence and before the jury was instructed, the Giambras moved for partial summary judgment, based on the premise that a claim of negligence per se bars the defense of contributory negligence. The District Court denied the motion. The court noted that it would instruct the jury to decide whether Zadkiel was negligent and to what degree.
¶ 16 The District Court provided the following instructions, which are pertinent to the issues at hand. First, on the issue of pain and suffering, the court gave Instruction 22:
Your award should include reasonable compensation for any pain and suffering experienced by plaintiff.
The law does not set a definite standard by which to calculate compensation for mental and physical pain and suffering. Neither is there any requirement that any witness express an opinion about the amount of compensation that is appropriate for this kind of loss. The law does require, however, that when making a finding of damages for pain and suffering, you shall exercise calm and reasonable judgment.
The compensation must be just and reasonable.
¶ 17 Second, the District Court gave Instruction 15, which stated that "[e]very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or with any person operating a bicycle upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child upon a roadway." (This instruction was modeled after § 61-8-504, MCA, and Livingston City Ordinance 9-320.)
¶ 18 Third, the court gave Instruction 19:
The Livingston City Ordinances provided:
"No person shall play football, baseball, tennis, or any other game or any form of sport or amusement on any of the streets or on any of the boulevards or parkings along any of the streets of the city."
¶ 19 Lastly, the District Court gave Instruction 17, which stated that "[n]egligence on the part of the plaintiff does not bar his/her recovery unless such negligence was greater than the negligence of the defendant."
¶ 20 The jury returned a special verdict finding that Nicholas violated the rule of law set forth in Instruction 15. The jury also found that Zadkiel was negligent and that his negligence was, in part, the cause of his injuries. The jury further...
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