Holte v. Carl Albers, Inc., 10737

• Decision Date: 27 June 1985
• Docket Number: No. 10737,10737
• Citation: 370 N.W.2d 520
• Parties: Evelyn HOLTE, Plaintiff and Appellee, v. CARL ALBERS, INC., Defendant, Third-Party Plaintiff and Appellant, v. Reuben HOLTE, Third-Party Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 520

370 N.W.2d 520

Evelyn HOLTE, Plaintiff and Appellee, v. CARL ALBERS, INC., Defendant, Third-Party Plaintiff and Appellant, v. Reuben HOLTE, Third-Party Defendant and Appellee.

Civ. No. 10737.

Supreme Court of North Dakota.

June 27, 1985.

Pringle and Herigstad, Minot, for plaintiff and appellee; Donald A. Negaard (argued).

McGee, Hankla, Backes & Wheeler, Minot, for defendant, third-party plaintiff and appellant; Russel G. Robinson (argued).

McIntee & Whisenand, Williston, for third-party defendant and appellee; submitted on brief.

ERICKSTAD, Chief Justice.

A personal injury action was brought by Evelyn Holte on May 10, 1983, against Carl Albers, Inc. [Albers] for damages resulting from a cervical sprain and other soft tissue injuries she allegedly sustained on December 2, 1981, in a collision between a four-wheel-drive pickup truck driven by her husband, Reuben Holte, and a stationary cement block located in a parking lot owned by Albers. Albers, the defendant and third-party plaintiff, appeals from a district court judgment entered April 9, 1984, and amended April 19, 1984, in which the court upon a jury verdict awarded Evelyn $61,000 plus her costs and disbursements, and awarded the third-party defendant, Reuben Holte, his costs and disbursements. We affirm.

Our review of the trial transcript reveals the following facts: The collision out of which this suit has arisen occurred on an overcast day at approximately 11:30 a.m. It had snowed the previous night. Evelyn and Reuben were running errands that morning, which included a visit by Reuben to Albers' paint and glass store. Reuben parked the pickup in a parking lot located in the front of the store and a neighboring business. Upon his return from the store, Reuben backed the pickup out of the space it had occupied and proceeded to drive slowly forward through the parking lot in an effort to reach the street. In so doing, he drove over a cement block which extended approximately one foot in height from the surface of the parking lot and was two feet wide. It apparently in the past had been utilized as a base for a signpost. The pickup's differential struck the cement block, which, according to Reuben, caused the pickup to "jump up enough so it was hanging on top" of the block. The sudden impact caused Evelyn to strike her head on the windshield. Reuben claimed that the block, "grayish-white" in color, had "blended in" with the snow cover and that he did not see it. The pickup was pulled off the cement block by another vehicle.

Immediately following the accident, Evelyn experienced blurred vision, dizziness, and pain in the neck, head, and lower back. She was admitted to a local hospital for x-rays and observation, and treated by Dr. Edward Hagan, a family practitioner. Dr. Hagan found in examining Evelyn mild cervical "tenderness in the muscles along ... each side of the vertebral column." X-rays revealed a mild arthritic growth on "several of the end plates of the lumbar vertebral bodies" which Dr. Hagan testified resulted from the aging process and not the collision. Evelyn was discharged from the hospital the following day. She was fitted with a cervical collar and given medication for pain and a muscle relaxant. Additional medication and treatment were prescribed on December 11, 1981, when Evelyn returned to Dr. Hagan complaining of headaches and neck pain. Evelyn saw Dr. Hagan for the last time on December 21, 1981, at which time, according to Dr. Hagan, she had apparently improved. Dr. Hagan testified that, from his general experience and examination of Evelyn through December of 1981, he did not "anticipate that she [Evelyn] would have any permanent head injury results and probably not any permanent injuries to the spine."

Evelyn testified that she discontinued taking the medication prescribed by Dr. Hagan because it made her sick to her stomach. On December 31, 1981, Evelyn went to Dr. James Stewart, a chiropractor, complaining of headaches and discomfort. Dr. Stewart testified that his examination of Evelyn revealed that all ranges of motion of her cervical spine were greatly reduced. Evelyn received forty-two chiropractic treatments from Dr. Stewart which provided her with only temporary relief. During September, 1982, Dr. Stewart referred Evelyn to a neurosurgeon, Dr. Arun Patil, who conducted an electromyographic study, described by Dr. Patil as an insertion of needles in the muscles to determine electrical activity of muscles and to determine whether there might be nerve damage. Evelyn found these insertions to be very painful. Dr. Patil concluded from the study that Evelyn had not experienced any nerve damage, but "it was possible that she could have some sprained neck." Treatment prescribed by Dr. Patil included physical therapy and the use of a muscle relaxant, which again provided Evelyn with only temporary relief.

Evelyn was then referred by Dr. Stewart to another neurosurgeon, Dr. Richard Olafson, whom Evelyn saw on November 30, 1982. At that time Evelyn complained of severe neck pain, headache, and left shoulder pain and a feeling that her left arm was not as strong as her right arm. Dr Olafson found in examining Evelyn's "neck area that she did have limitation in the flexion, that is the forward movement of the neck, extension of the neck, which is the backward movement of the head and the neck. That right and left lateral bendings, which is turning the head towards the shoulders as well as rotating or turning the head toward the right or left, were limited." Dr. Olafson described Evelyn's headaches as "muscle-contraction-type" headaches, "a muscle tightness contraction, ... in relation to an aggravation of her pre-existing cervical degenerative arthritic disease in relationship to flexion, extension type of process which had occurred in the original accident on December 2, 1981."

Dr. Olafson prescribed a medication called Inderal and a home therapy and exercise program for Evelyn. Evelyn did improve with the therapy. Her symptoms were controlled at the time of the trial because, as she stated, the medication Dr. Olafson prescribed helped control them. Evelyn testified that she had not had a headache since November 30, 1982. Dr. Olafson testified that Evelyn "probably had some degree of aggravation of her cervical osteoarthritic degenerative disease of aging and that [she] may have further difficulty with this in the future, but with the appropriate treatment hopefully this can be controlled."

Dr. Stewart examined Evelyn again just prior to trial on March 23, 1984. Dr. Stewart testified that Evelyn's range of motion was still reduced: "lateral bending of the head ... was still reduced by approximately 50 percent. Flexion movement, flexion and extension, ... is reduced approximately 25 percent."

At the time of trial, Evelyn was 56 years old. Prior to December 2, 1981, Evelyn assisted Reuben in several of the duties regarding the operation of their farming business, as well as maintaining the family household and yard. Evelyn attempted to haul grain during August, 1983, but discontinued after one day because driving the truck caused her discomfort in her neck and back. Evelyn testified that she tires very easily. She can no longer mow the lawn, keep a garden, paint the house, engage in many church activities that she had in the past, dance as she and Reuben had done frequently in the past, or lift her three-year-old grandson. She experiences shoulder pain when riding in a car. She testified that although she can still do light housekeeping, her daughter now comes in on weekends to help.

Evelyn alleged in her complaint that Albers was negligent in allowing the unmarked cement obstruction to remain on its premises. In its answer Albers generally denied any negligence on its part, alleging that any damages sustained by Evelyn were caused or contributed by acts of others over whom Albers had no control. Albers filed a third-party complaint against Reuben, alleging that the damages claimed by Evelyn were the result of Reuben's negligence in failing to exercise due care, control, and a proper lookout while operating the pickup. Evelyn cross-claimed against Reuben, alleging that if her injuries were not the result of Albers' negligence, they resulted from Reuben's negligence. In his answer to the third-party complaint and reply to Evelyn's cross-claim, Reuben denied these allegations, alleging as affirmative defenses that Evelyn's damages were the result of an unavoidable accident, Albers' negligence, or negligence on the part of third parties over whom Reuben had no control.

At the conclusion of the trial the jury determined by special verdict that Albers was 100 percent negligent and that Evelyn and Reuben were not negligent, and awarded Evelyn damages in the amount of $61,000. In addition to the damages awarded by the jury the judgment of the court as amended included an award of costs and disbursements in the amount of $982.15 to Evelyn and $229.65 to Reuben.

Albers brought a motion pursuant to Rule 59, N.D.R.Civ.P., requesting that the district court vacate the jury's verdict and grant a new trial. The motion was denied. Albers has raised on appeal the same issues it raised in conjunction with its motion for a new trial. Thus, the following issues essentially constitute a challenge by Albers to the propriety of the trial court's denial of its motion for a new trial:

"I. Did the District Court err in allowing evidence to be presented at trial concerning other accident or other near accidents involving the cement sign post?

"II. Did the District Court err in allowing witness Craig Oksol to testify about facts surrounding the accident after he had initially been a member of the jury panel and had talked to other members of the jury panel?

"III. Do comments during rebuttal closing argument of Plaintiff's counsel entitle the Defendant to a new trial?

"IV. Is the jury verdict excessive?"

The decision to...