Gilkyson v. Wheelchair Exp., Inc., 20102

• Decision Date: 13 May 1998
• Docket Number: No. 20102,20102
• Citation: 579 N.W.2d 1,1998 SD 45
• Parties: Blake GILKYSON, Plaintiff and Appellee, v. WHEELCHAIR EXPRESS, INC., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 1

579 N.W.2d 1

1998 SD 45

Blake GILKYSON, Plaintiff and Appellee, v. WHEELCHAIR EXPRESS, INC., Defendant and Appellant.

No. 20102.

Supreme Court of South Dakota.

Argued March 25, 1998.

Decided May 13, 1998.

Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for plaintiff and appellee.

Gary J. Pashby of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 Wheelchair Express, Incorporated (Wheelchair Express) appeals the trial court's denial of its motion for new trial and judgment notwithstanding the verdict in a personal injury suit commenced after a single vehicle automobile accident in which Blake Gilkyson was a passenger. We affirm.

FACTS AND PROCEDURE

¶2 On February 6, 1995, Blake Gilkyson (Gilkyson), a 68-year-old veteran of the Navy, was a wheelchair passenger in a specially-equipped van owned and operated by Wheelchair Express. The van was traveling south from Sioux Falls to Vermillion, South Dakota, along Interstate 29 when the van hit a patch of ice causing the driver to lose control and slide into the median. Gilkyson fell out of his wheelchair, even though the driver had previously used two straps to secure his wheelchair to the floor of the van. Two passing motorists stopped to render assistance and lifted Gilkyson back into his wheelchair. Gilkyson refused to go to the hospital and instead requested that he be taken to his son's home in Vermillion.

¶3 The following day Gilkyson went to the hospital. He had multiple contusions but no broken bones. Gilkyson complained of severe pain throughout his body. He brought a negligence suit against Wheelchair Express, claiming the driver should have secured his wheelchair to the vehicle using four, rather than two straps. At trial, he presented expert testimony to support this claim. Prior to the time of the accident, Gilkyson had been through several surgeries. Each knee and hip had been replaced and he suffered from a myriad of conditions and afflictions. Wheelchair Express argued that all of Gilkyson's injuries were preexisting, as Gilkyson had suffered from severe rheumatoid arthritis for over 40 years, and he had not suffered any permanent injuries. Gilkyson, countered this with expert testimony at trial tending to support his claims of permanent injuries and aggravation of preexisting injuries.

¶4 After a three-day trial, the jury awarded Gilkyson $50,000. Wheelchair Express' subsequent motion for new trial or judgment notwithstanding the verdict was denied.

¶5 Wheelchair Express appeals raising the following issues for review:

1. Whether the trial court abused its discretion by denying Wheelchair Express' motion for a new trial.

2. Whether the trial court abused its discretion by denying Wheelchair Express' motion for judgment notwithstanding the verdict (n.o.v.).

STANDARD OF REVIEW

¶6 We review a denial of motion for new trial by the trial court applying the following standard:

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion. Finally, we note a decision to grant a new trial stands on firmer footing than a decision to deny a new trial.

Andreson v. Black Hills Power & Light Co., 1997 SD 12, p 5, 559 N.W.2d 886, 887 (quoting Schuldies v. Millar, 1996 SD 120, p 8, 555 N.W.2d 90, 95 (quoting Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (other citations omitted))); see also State v. DeNoyer, 541 N.W.2d 725, 733 (S.D.1995); Bridge v. Karl's, Inc., 538 N.W.2d 521, 523 (S.D.1995).

¶7 We review a trial court's consideration of a motion for directed verdict and judgment notwithstanding the verdict under the following standard:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court's decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15-6-50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, "then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdict[.]"

Bland v. Davison County, 1997 SD 92, p 26, 566 N.W.2d 452, 460 (quoting Sabag v. Continental, 374 N.W.2d 349, 355 (S.D.1985)). We review the trial court's ruling on a directed verdict or judgment notwithstanding the verdict by the abuse of discretion standard. Id. (citing Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994)).

ANALYSIS AND DECISION

¶8 Whether the trial court abused its discretion by denying Wheelchair Express' motion for a new trial.

¶9 Wheelchair Express claims that a new trial should have been granted under each of the following sections of SDCL 15-6-59(a), which provides in part:

(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;

...

(6) Insufficiency of the evidence to justify the verdict or other decision or that it is against law;

(7) Error of law occurring at the trial; provided, that in the case of claim of error, admission, rejection of evidence, or instructions to the jury or failure of the court to make a finding or conclusion upon a material issue which had not been proposed or requested, it must be based upon an objection, offer of proof or a motion to strike.

¶10 a. Irregularity in the Proceedings

¶11 Wheelchair Express claims that a new trial should have been granted because there were two separate "irregularities in the proceedings" which denied it a fair trial. SDCL 15-6-59(a)(1). Wheelchair Express claims that on the second day of trial, when the trial court allowed those in the court room a "stretch break," it called "unnecessary attention [to the jury] that Gilkyson [was] confined to a wheelchair and [was] unable to stand."

¶12 However, Wheelchair Express did not preserve the record on this issue by stating a timely objection and therefore the issue has been waived. ¹ This Court has long held that: "Generally, error must be brought to the attention of the trial court as soon as it is apparent and failure to object at a time when the court can take corrective action precludes appellate review." State v. Spiry, 1996 SD 14, p 15, 543 N.W.2d 260, 263 (quoting In re A.I., 289 N.W.2d 247, 249 (S.D.1980)). See also In re Sioux Valley Hosp. Ass'n, 513 N.W.2d 562 (S.D.1994); In re Adoption of Baade, 462 N.W.2d 485, 488 (S.D.1990).

¶13 Wheelchair Express next claims it was denied a fair trial when the trial judge allegedly made an improper remark and laughed out loud after an excerpt from a deposition was read to the jury. This claim is wholly unsupported by the trial record. As with the first alleged error, Wheelchair Express again failed to object after the trial judge allegedly acted improperly and therefore the issue has also been waived. ² Spiry, supra.

¶14 The affidavits containing Wheelchair Express' version of the objectionable facts were filed well after the completion of the trial, thus denying the plaintiff the chance to be timely heard on the matter. In addition, it denied the trial court the opportunity to consider an objection and take whatever measures it felt were necessary, if any, to correct the situation. After the verdict had been received and the jury discharged, any remedial action by the trial court short of ordering a new trial became an impossibility. There is no acceptable reason cited by Wheelchair Express that it could not have timely made its objection on the record. Wheelchair Express contends it did not object because it did not want to draw jury attention to the alleged misconduct. However, the concern of prejudicing the jury with its objection overlooks that proceedings could have been held in chambers or outside the presence of the jury. ³

¶15 b. Sufficiency of the Evidence

¶16 Wheelchair Express argues the evidence was insufficient to support the $50,000 verdict and therefore the trial court erred by not granting its motion for new trial. SDCL 15-6-59(a)(6).

It is a well-established rule in South Dakota that a trial court has broad discretion to grant a new trial on the ground of insufficient evidence. Lewis v. Storms, 290 N.W.2d 494, 497 (S.D. 1980). Nevertheless, a jury's verdict should not be set aside "except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law...." Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983) (citing Simons v. Kidd, 73 S.D. 306, 42 N.W.2d 307, 309 (1950)). A verdict should only be set aside if the jury's conclusion was unreasonable and a clear illustration of its failure to impartially apply "the reasoning faculty on the facts before them." Lewis, 290 N.W.2d at 497.

LDL Cattle Co. Inc. v. Guetter, 1996 SD 22, p 13, 544 N.W.2d 523, 526-27. We review the evidence in a ...