Harry v. Elderkin, 81-118

• Decision Date: 23 December 1981
• Docket Number: No. 81-118,81-118
• Parties: Marjorie HARRY, Plaintiff and Respondent and Cross-Appellant, v. Bill ELDERKIN and Sandy Elderkin, Defendants and Appellants and Cross-Respondents.
• Court: Montana Supreme Court

Page 809

637 P.2d 809

196 Mont. 1

Marjorie HARRY, Plaintiff and Respondent and Cross-Appellant, v. Bill ELDERKIN and Sandy Elderkin, Defendants and Appellants and Cross-Respondents.

No. 81-118.

Supreme Court of Montana.

Submitted Oct. 20, 1981.

Decided Dec. 1, 1981.

Rehearing Denied Dec. 23, 1981.

Warden, Christiansen, Johnson & Berg, Stephen C. Berg argued, Kalispell, for defendants and appellants and cross-respondents.

Hash, Jellison, O'Brien & Bartlett, James C. Bartlett argued, Kalispell, for plaintiff and respondent and cross-appellant.

HASWELL, Chief Justice.

This is an appeal from an order of the District Court for the Eleventh Judicial District, Flathead County, granting a new trial to the plaintiff in a personal injury action. The plaintiff cross-appeals from the contributory negligence instructions.

The plaintiff, Marjorie Harry, is the mother of defendant Sandy Elderkin, who was the wife of defendant Bill Elderkin. During June, 1976, Mrs. Harry was visiting the Elderkins at their home in Kalispell, Montana. At the time of her visit, Bill Elderkin was in the process of constructing a cabinet shop in the backyard of the Elderkin home. A trench had been dug approximately four feet deep, and cement had been poured into plywood forms constructed in the trench. A garden was located next to the cabinet shop foundation, and the remainder of the backyard was covered with black plastic and gravel.

On June 12, 1976, Sandy Elderkin invited her mother into the backyard to view the garden. Mrs. Harry had not been in the backyard since her arrival, but she was aware of the construction project. Bill Elderkin was in the process of removing braces and forms from the foundation. As Sandy Elderkin and Mrs. Harry walked along the pathway between the garden and the construction site, Sandy bent down to remove a board from the garden. Mrs. Harry took a step backwards with her right foot towards the trench, the ground gave way, and she fell into the trench and caught her left ankle on a brace. As a result of the accident, Mrs. Harry suffered a severely broken left ankle and received extensive medical treatment.

In October, 1977, Mrs. Harry was still experiencing difficulties due to severe degenerative arthritis of the ankle caused by the fracture. Dr. Laidlaw advised Mrs. Harry that she would eventually require an ankle fusion to alleviate the pain caused by the rubbing of bone upon bone in the ankle joint. In May, 1978, Dr. Laidlaw again advised Mrs. Harry that she was in need of an ankle fusion. Mrs. Harry was also seen by Dr. Maruyama, an orthopedic surgeon in Colorado, who advised her in November, 1978, and in November, 1980, that she should have an ankle fusion but that she should first lose fifty pounds. At the time of trial, Mrs. Harry was scheduled to have the ankle fusion but had not yet done so.

Mrs. Harry brought an action against the Elderkins for damages for personal injury. The District Court denied the summary judgment motions of both parties and a jury trial commenced on December 15, 1980. The jury rendered a special verdict in which it found the plaintiff to have been 85% negligent and the defendants to have been 15% negligent. The full amount of damages sustained by the plaintiff was found to be $15,000. The District Court ordered that judgment be entered on the verdict on behalf of defendants and against the plaintiff.

The plaintiff moved for new trial on the grounds of irregularity in the jury proceedings, misconduct of the jury and insufficiency of the evidence to support the verdict. The motion was supported by an affidavit of the jury foreman, which stated:

"... (2) That at the time the Special Verdict Form was completed, Affiant and his fellow Jurors believed and they intended that Mrs. Harry was awarded a Judgment in the sum of $15,000.00;

"(3) That Affiant and his fellow Jurors assigned a percentage of 85% to Marjorie Harry as justification for the award of $15,000.00 to her; and that in determining the 85%, Affiant and his fellow Jurors believed that a significant factor, but not the only factor, was the failure of Marjorie Harry to have her ankle fused when first suggested by her physicians, and that much of her problems could have been alleviated had the fusion taken place."

By an order dated January 2, 1981, the District Court granted plaintiff's motion for a new trial and found that:

"... the jurors, or some of them, did not understand the doctrine of comparative negligence, did not apply the law correctly relative to contributory negligence, were inconsistent in their answers on the Special Verdict, and reached a result that they did not intend when the Court applied the proportion of contributory negligence they ascribed to the Plaintiff."

The Elderkins contend that the District Court manifestly abused its discretion in granting Mrs. Harry a new trial. They argue that there was no irregularity in the proceedings, that the jury may not impeach its own verdict based upon a misapprehension of the law, and that there was sufficient evidence to support the giving of the contributory negligence instruction. Mrs. Harry contends she is entitled to a new trial as a matter of law due to an error in instructing the jury. She further asserts that this is a proper case for determining whether the rules of status of persons injured on real property should be abolished.

We decline to address the latter issue as we find it is not properly before us. The trial of this case occurred prior to our decision in Corrigan v. Janney (1981), Mont., 626 P.2d 838, 38 St.Rep. 545, in which we held that a landlord is under a duty to exercise ordinary care in the management of the premises to avoid exposing persons thereon to unreasonable risk of harm. Mrs. Harry asserts that this rule of law issued while her case was pending on appeal should be expanded and applied to her case by virtue of the plain error rule. This is not an appropriate case for application of the plain error rule enunciated in Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169. It is only when the trial court has committed an error which results in a denial of substantial justice that we can review an error not objected to at trial. Plaintiff's counsel indicated satisfaction with the instructions on the standard of liability, and he may not now argue the academic issue that the law should be changed.

Mrs. Harry's motion for a new trial was premised upon section 25-11-102(1), (2), and (6), MCA. Although the District Court order granting a new trial does not specify the subsection upon which it is based, it is clear that the court relied upon the jury foreman's affidavit and determined that either an irregularity in the jury proceedings or misconduct of the jury had occurred.

Juror affidavits are not permissible in support of a motion for new trial based upon an irregularity in the jury proceedings, section 25-11-102(1), MCA. Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835. Therefore, if a motion for new trial was properly granted under subsection (1), an irregularity in the jury proceedings must have existed independent of any consideration of the jury foreman's affidavit. The District Court order makes reference to an inconsistency in the answers on the special verdict. On its face, however, the special verdict does not contain any inconsistent answers. Both parties were found to have been negligent, a total amount of damages was assessed and percentages of negligence were ascribed to each party. Absent consideration of the juror affidavit, we find no irregularity in the jury proceedings requiring a new trial under section 25-11-102(1), MCA.

Plaintiff further argues that even though juror affidavits cannot be used under section 25-11-102(1), the trial court could have found from an independent review of the evidence, without considering the juror affidavit, that the result reached by the jurors was not the result intended by them. The court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. Rule 59(e), M.R.Civ.P. This does not alter the fact that, absent consideration of the juror affidavit, there was no basis for a new trial under section 25-11-102(1), MCA.

Jury misconduct as a ground for new trial may be shown by juror affidavit according to section 25-11-102(2), MCA. As jury misconduct, the respondent refers to (1) the error of the jurors in considering her failure to have an ankle fusion as negligence and (2) setting her total damages as $15,000 and assigning 85% negligence to the respondent. Montana law on the use of juror testimony and affidavits upon an inquiry into the validity of the verdict is concisely summarized by Rule 606(b), Montana Rules of Evidence as follows "Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

"However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury's deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury's attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort...