Gisvold v. Windbreak, Inc., No. 20060209.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCrothers
Citation2007 ND 54,730 N.W.2d 597
PartiesJoelle GISVOLD, Plaintiff and Appellant v. WINDBREAK, INC., Defendant and Appellee.
Docket NumberNo. 20060209.
Decision Date19 April 2007
730 N.W.2d 597
2007 ND 54
Joelle GISVOLD, Plaintiff and Appellant
v.
WINDBREAK, INC., Defendant and Appellee.
No. 20060209.
Supreme Court of North Dakota.
April 19, 2007.

Rex A. Hammarback, Hammarback, Dusek & Associates, P.L.C., East Grand Forks, MN for plaintiff and appellant.

Robert J. Udland (argued) and Robin A. Schmidt (appeared), Vogel Law Firm, Fargo, N.D., for defendant and appellee.

CROTHERS, Justice.


[¶ 1] Joelle Gisvold appeals from a judgment denying her motion for a new trial and dismissing her negligence action against Windbreak, Inc., after a jury found Windbreak was not at fault for Gisvold's injuries. Because we cannot determine whether the district court applied the correct legal standard on Gisvold's motion for new trial, we reverse and remand for reconsideration under the correct standard.

I

[¶ 2] Gisvold alleged she slipped and fell while dancing at the Windbreak Saloon & Casino in Fargo, which is owned and operated by Windbreak, and incurred serious injuries to her right wrist, which ultimately resulted in several surgeries and a

730 N.W.2d 598

prosthesis being implanted in her wrist. Gisvold claimed Windbreak breached its duty to provide a safe dance floor for its customers because Windbreak's manager, Chad Klimek, admitted he had applied too much dance wax to the floor, which made it "extremely slippery" like "wet ice on wet ice." She claimed Windbreak failed to warn her about the dangerous condition on the dance floor. Windbreak asserted it was not liable for Gisvold's injuries and did not breach its duty of care because Klimek did not use an excessive amount of dance wax on the floor. Windbreak claimed it effectively impeached Klimek's testimony about the amount of dance wax applied to the floor, because Klimek quit his job with Windbreak for unrelated reasons to avoid being fired and Klimek believed Windbreak owed him money for a raise he did not receive, plus an $8,000 bonus.

[¶ 3] A jury returned a special verdict, finding Windbreak was not at fault for Gisvold's damages. Gisvold moved for a new trial under N.D.R.Civ.P. 59(b)(6), claiming there was insufficient evidence to justify the verdict. After a hearing, the district court denied Gisvold's motion.

II

[¶ 4] Gisvold argues the district court abused its discretion in denying her motion for a new trial. Relying on State v. Weber, 49 N.D. 325, 191 N.W. 610 (1922) and statements by the district court at the hearing on her motion for a new trial, Gisvold argues the court's denial of her motion was arbitrary, unconscionable, and unreasonable because the court specifically said it would have granted judgment for her and because the court did not weigh the evidence and judge the witnesses' credibility as required by N.D.R.Civ.P. 59(b)(6). She argues the court's failure to exercise its independent legal discretion was arbitrary, unconscionable, and unreasonable and the evidence supports only a verdict for her. Windbreak responds that although the court may have said it would have decided the case differently from the jury, the court's statements, when read in context and as a whole, indicate the court did not find the verdict was against the manifest weight of the evidence and the verdict was supported by the evidence.

[¶ 5] A motion for a new trial under N.D.R.Civ.P. 59(b)(6) based on a claim of insufficient evidence is addressed to the sound discretion of the district court. Brandt v. Milbrath, 2002 ND 117, ¶ 24, 647 N.W.2d 674; Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982). A district court's discretionary authority to decide a motion for a new trial is different from this Court's authority on review, which is limited to whether the district court abused its discretion. Brandt, at ¶ 23; Okken, at 269. A district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when its decision is not the product of a rational mental process by which the facts of record and law relied upon are stated and considered together for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law. Usry v. Theusch, 521 N.W.2d 918, 919 (N.D. 1994).

[¶ 6] Over the years, this Court has variously described the legal tests that have evolved for a district court's consideration of a motion for a new trial based on insufficiency of the evidence. We have often said a district court may set aside a jury verdict and order a new trial when the district court decides the verdict is "manifestly against the weight of the evidence." Brandt, 2002 ND 117, ¶ 25, 647 N.W.2d 674; Larson v. Kubisiak, 1997 ND 22, ¶ 6, 558 N.W.2d 852; Schutt v. Schumacher, 548 N.W.2d 381, 384 (N.D.1996); Marohl v. Osmundson, 462 N.W.2d 145,

730 N.W.2d 599

146 (N.D.1990); Mauch v. Manufacturers Sales & Serv., Inc., 345 N.W.2d 338, 344 (N.D.1984); Scientific Application, Inc. v. Delkamp, 303 N.W.2d 71, 74 (N.D.1981); Wall v. Pennsylvania Life Ins. Co., 274 N.W.2d 208, 218-19 (N.D.1979); Cook v. Stenslie, 251 N.W.2d 393, 395-96 (N.D. 1977); Maier v. Holzer, 123 N.W.2d 29, 32 (N.D.1963). This Court has also said a district court's discretion to grant a new trial based on insufficiency of the evidence is a legal discretion to be exercised "in the interests of justice." E.g., Munro v. Privratsky, 209 N.W.2d 745, 757 (N.D.1973); Trautman v. New Rockford-Fessenden Co-op. Transp. Ass'n, 181 N.W.2d 754, 763 (N.D.1970); Ferguson v. Hjelle, 180 N.W.2d 408, 413 (N.D.1970); Leake v. Hagert, 175 N.W.2d 675, 689 (N.D.1970); Muhlhauser v. Archie Campbell Constr. Co., 160 N.W.2d 524, 528 (N.D.1968); Pocta v. Kleppe Corp., 154 N.W.2d 177, 183 (N.D.1967); Chicago, Milwaukee, St. Paul & Pac. R.R. Co. v. Johnston's Fuel Liners, Inc., 130 N.W.2d 154, 157 (N.D.1964); Maier, 123 N.W.2d at 32; Kohlman v. Hyland, 56 N.D. 772, 779, 219 N.W. 228, 230 (1928). On other occasions, this Court has said a new trial is warranted when the jury verdict is "against the clear weight of the evidence." Okken, 325 N.W.2d at 271; Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182, 187 (N.D.1973); Weber, 49 N.D. at 330, 191 N.W. at 612. We have sometimes said a motion for a new trial asks the district court to decide whether the verdict is against the weight of the evidence. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 26, 689 N.W.2d 366; Rittenour v. Gibson, 2003 ND 14, ¶ 12, 656 N.W.2d 691; Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 7, 651 N.W.2d 656; Perry v. Reinke, 1997 ND 213, ¶¶ 21-22, 570 N.W.2d 224; Okken, 325 N.W.2d at 269; Wrangham v. Tebelius, 231 N.W.2d 753, 756 (N.D.1975); Kohlman, 56 N.D. at 779, 219 N.W. at 230. So too this Court has stated a district court abused its discretion in granting a new trial when the jury verdict was supported "by the great preponderance of the evidence," Benzmiller v. Swanson, 117 N.W.2d 281, 286 (N.D.1962), and was "amply supported by the evidence." Hamre v. Senger, 79 N.W.2d 41, 47 (N.D.1956).

[¶ 7] Other authorities have recognized that a district court's standard in ruling on a motion for a new trial is not clear and somewhat confused. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2806 (1995) (stating standard is not clear and it is doubtful whether any verbal formula will be useful to trial courts because all formulations are couched in broad and general terms that furnish no unerring litmus test for a particular case); 12 James Wm. Moore, Moore's Federal Practice § 59.13[2][f][iii][B] (3rd ed.2006) (stating standard is unclear and "somewhat confused"). See also Lind v. Schenley Indus., Inc., 278 F.2d 79, 88-91 (3rd Cir.1960) (stating no consensus as to exact standards to be used by trial court and discussing several tests, including (1) no interference with verdict unless miscarriage of justice and quite clear jury has reached seriously erroneous result, (2) no interference with verdict unless verdict manifestly and palpably against evidence so as to compel conclusion the verdict is contrary to right and justice, or the evidence as a whole, after according it the highest probative force to which it is lawfully entitled, is insufficient to support the verdict, and (3) giving trial court almost unlimited discretion in granting or denying motion for new trial).

[¶ 8] Notwithstanding the various descriptions of the legal test that have evolved in this state, the underlying meaning has remained essentially the same and

730 N.W.2d 600

can be found by looking at our cases. In Weber, 49 N.D. at 326, 191 N.W. at 610, a case decided before the adoption of the rules of civil procedure, this Court reversed a district court's denial of a defendant's motion for a new trial in a bastardy proceeding. In denying the defendant's motion for a new trial on the basis of insufficient evidence, the district court said, "The evidence is of so unsatisfactory a character and the results of the trial as a whole leaves my mind in such a state that if I had been a juror I could not have returned a verdict of guilty against the defendant." Id. at 326, 191 N.W. at...

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7 practice notes
  • Wanttaja v. Wanttaja, No. 20140436.
    • United States
    • United States State Supreme Court of North Dakota
    • January 14, 2016
    ...). Additionally, in Travelers Cas. Ins. Co. v. Williams Co. Constr., 2014 ND 160, ¶ 22, 851 N.W.2d 164 (quoting Gisvold v. Windbreak, Inc., 2007 ND 54, ¶ 5, 730 N.W.2d 597 (citations omitted)), this Court addressed a new trial motion based on insufficient evidence, stating:A motion for a ne......
  • Burns v. Burns, No. 20060218.
    • United States
    • North Dakota Supreme Court
    • August 22, 2007
    ...for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law." Gisvold v. Windbreak, Inc., 2007 ND 54, ¶ 5, 730 N.W.2d 597. We have said a continuance is the proper remedy for a party claiming surprise, e.g., Paulson v. Paulson, 2005 ND 72, ¶ ......
  • Twete v. Mullin, No. 20170450
    • United States
    • United States State Supreme Court of North Dakota
    • July 11, 2019
    ...had not defrauded or deceived Twete by reneging on an alleged promise to return the farm property.[¶29] In Gisvold v. Windbreak, Inc. , 2007 ND 54, ¶ 11, 730 N.W.2d 597, we articulated and clarified the standard for a district court’s consideration of a new trial motion arguing insufficienc......
  • Jalbert v. Eagle Rigid Spans, Inc., No. 20160173
    • United States
    • United States State Supreme Court of North Dakota
    • March 7, 2017
    ...Cas. Ins. Co. of America v. Williams Co. Const., Inc. , 2014 ND 160, ¶ 22, 851 N.W.2d 164 (quoting Gisvold v. Windbreak, Inc. , 2007 ND 54, ¶ 5, 730 N.W.2d 597 )."[A] district court considering a motion for a new trial based on insufficiency of the evidence may not substitute its own j......
  • Request a trial to view additional results
7 cases
  • Wanttaja v. Wanttaja, No. 20140436.
    • United States
    • United States State Supreme Court of North Dakota
    • January 14, 2016
    ...). Additionally, in Travelers Cas. Ins. Co. v. Williams Co. Constr., 2014 ND 160, ¶ 22, 851 N.W.2d 164 (quoting Gisvold v. Windbreak, Inc., 2007 ND 54, ¶ 5, 730 N.W.2d 597 (citations omitted)), this Court addressed a new trial motion based on insufficient evidence, stating:A motion for a ne......
  • Burns v. Burns, No. 20060218.
    • United States
    • North Dakota Supreme Court
    • August 22, 2007
    ...for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law." Gisvold v. Windbreak, Inc., 2007 ND 54, ¶ 5, 730 N.W.2d 597. We have said a continuance is the proper remedy for a party claiming surprise, e.g., Paulson v. Paulson, 2005 ND 72, ¶ 16, 6......
  • Twete v. Mullin, No. 20170450
    • United States
    • United States State Supreme Court of North Dakota
    • July 11, 2019
    ...had not defrauded or deceived Twete by reneging on an alleged promise to return the farm property.[¶29] In Gisvold v. Windbreak, Inc. , 2007 ND 54, ¶ 11, 730 N.W.2d 597, we articulated and clarified the standard for a district court’s consideration of a new trial motion arguing insufficienc......
  • Jalbert v. Eagle Rigid Spans, Inc., No. 20160173
    • United States
    • United States State Supreme Court of North Dakota
    • March 7, 2017
    ...Cas. Ins. Co. of America v. Williams Co. Const., Inc. , 2014 ND 160, ¶ 22, 851 N.W.2d 164 (quoting Gisvold v. Windbreak, Inc. , 2007 ND 54, ¶ 5, 730 N.W.2d 597 )."[A] district court considering a motion for a new trial based on insufficiency of the evidence may not substitute its own judgme......
  • Request a trial to view additional results

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