Larchick v. Diocese of Great Falls-Billings

• Decision Date: 19 May 2009
• Docket Number: No. DA 07-0418.,DA 07-0418.
• Citation: 208 P.3d 836,2009 MT 175,350 Mont. 538
• Parties: Angela LARCHICK, Conservator of Jordan Larchick, a minor, Plaintiff and Appellant, v. DIOCESE OF GREAT FALLS-BILLINGS, d/b/a Billings Catholic Schools, a/k/a Billings Central High School, Defendants, Appellees and Cross-Appellants.
• Court: Montana Supreme Court

208 P.3d 836

2009 MT 175

350 Mont. 538

Angela LARCHICK, Conservator of Jordan Larchick, a minor, Plaintiff and Appellant, v. DIOCESE OF GREAT FALLS-BILLINGS, d/b/a Billings Catholic Schools, a/k/a Billings Central High School, Defendants, Appellees and Cross-Appellants.

No. DA 07-0418.

Supreme Court of Montana.

Submitted on Briefs December 10, 2008.

Decided May 19, 2009.

For Appellant: Elizabeth A. Halverson; Elizabeth A. Halverson, P.C.; James R. Halverson; Halverson & Gilbert, P.C.; Billings, Montana.

For Appellees: Leonard Hudson Smith; Crowley Fleck PLLP; Billings, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Angela Larchick, Conservator for Jordan Larchick, a minor (collectively "Larchick"), brought this negligence action against the Diocese of Great Falls-Billings, d/b/a Billings Catholic Schools, a/k/a Billings Central Catholic High School (collectively the "Diocese") to recover damages for injuries Jordan sustained while participating in P.E. class at Billings Central Catholic High School ("Central"). A jury sitting in the Thirteenth Judicial District Court, Yellowstone County, found in favor of the Diocese. Following the verdict, Larchick filed several post-trial motions, including a motion for a new trial on the basis of newly discovered evidence and for fees and costs or entry of judgment on liability. The District Court denied Larchick's motions. Larchick appeals. The Diocese cross-appeals from several of the District Court's rulings, including the District Court's award of partial summary judgment in favor of Larchick on the issue of intervening cause and comparative negligence. For the reasons set forth below, we affirm in part, reverse in part, and remand for a new trial.

¶ 2 Larchick raises the following issues on appeal, restated as follows:

¶ 3 I. Did the District Court err in denying Larchick's motion for a new trial under § 25-11-102(4), MCA, on the basis of newly discovered evidence?

¶ 4 II. Did the District Court err in denying Larchick's motion for a mistrial?

¶ 5 III. Did the District Court err in denying Larchick's motion for a new trial under § 25-11-102(1), (7), MCA, on the basis of the District Court's exclusion of post-accident evidence which allegedly shows that defense counsel solicited and relied upon false affidavits?

¶ 6 IV. Did the District Court err in denying Larchick a new trial or entry of default judgment on liability on the basis of defense counsel's alleged misconduct?

¶ 7 V. Did the District Court err in denying Larchick's motion for costs and fees on the basis of defense counsel's alleged misconduct?

¶ 8 The Diocese raises the following issues on cross-appeal, restated as follows:

¶ 9 VI. Did the District Court err in concluding that Powers's act of striking Larchick was foreseeable as a matter of law and not an intervening force that severed the causal chain?

¶ 10 VII. Did the District Court err in granting Larchick's motion in limine to exclude all evidence, argument, or suggestion at trial that Powers was at fault for Larchick's injury?

¶ 11 VIII. Did the District Court err in granting Larchick's motion for partial summary judgment on the issue of comparative negligence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 12 On February 6, 2004, Larchick was injured while participating in a lacrosse game during P.E. class as a freshman at Central. While the facts leading up to Larchick's injuries are somewhat disputed, it is undisputed that Larchick sustained immediate and permanent vision loss in his right eye when he was hit with a lacrosse stick by another student, Alex Powers ("Powers"). The Diocese alleged that Larchick precipitated the strike by hitting Powers on the shin with his lacrosse stick and that the incident occurred "away from the play of the game." Powers disclaimed any intent to injure Larchick, although several students stated that it appeared to them as if Powers's actions were intentional. The game, described as "soft lacrosse" by the Diocese, was held in Central's gymnasium. Prior to participating in the game, students were instructed by P.E. teacher John Hardenbrook ("Hardenbrook") that physical contact (a.k.a. body checking) was not allowed. The students were not provided with helmets, face guards, or other protective equipment.

¶ 13 Larchick filed this negligence action in July of 2005, after the completion of his sophomore year at Central. The Diocese was not named as a defendant in the original complaint. Larchick subsequently moved to Wyoming to live with his grandparents and attend school. In February of 2006, the complaint was amended to include the current defendants. Larchick maintained that the school negligently supervised, negligently instructed, or negligently failed to provide protective equipment and requested punitive damages. The Diocese sought to defend, in part, on a theory that Larchick was comparatively negligent and that Powers's act of striking Larchick was an intervening cause.

¶ 14 Central's Principal, Sheldon Hanser ("Hanser"), was deposed in December 2005. During the deposition, Hanser stated that the school did not blame Larchick for his injures. Hanser also stated that the school did not blame Powers for Larchick's injuries. Thereafter, Larchick moved for partial summary judgment on the Diocese's affirmative defenses of comparative fault and intervening cause. Larchick argued that there was no evidence to support a comparative fault theory. In support of this position, Larchick cited Hanser's statement that he did not blame Larchick for his injuries. The District Court granted Larchick's motion, concluding that there was no evidence that Larchick breached any duty owed to the defendants or acted negligently. The District Court also granted Larchick's motion for partial summary judgment on the issue of intervening cause. The District Court concluded that it was "foreseeable that intentional or reactive striking" would occur and that Powers's strike of Larchick was not an intervening cause. In the same order, the District Court granted the Diocese's motion for partial summary judgment on Larchick's punitive damages claim.

¶ 15 Prior to trial, Larchick filed a motion in limine to exclude evidence, argument, or suggestion at trial that Powers was at fault. Larchick cited Hanser's deposition testimony in which Hanser stated that the school did not blame Powers for Larchick's injuries. Larchick also noted that Hanser was deposed for a second time in February 2007, this time as the individual designated by the Diocese to speak on its behalf under M.R. Civ. P. 30(b)(6). During this deposition, Hanser stated that his December 2005 testimony was still true and correct. The District Court granted Larchick's motion in limine, and thereby excluded evidence at trial that Powers was at fault.

¶ 16 A jury trial was held on February 22 through March 2, 2007. A key issue at trial was whether Hardenbrook was present in the gymnasium at the time Larchick was injured. Hardenbrook testified that he was present but that he did not see the incident occur because his back was turned when it happened. Several students in Hardenbrook's P.E. class on the day of the incident testified that he was in the gymnasium, although other students, including Larchick, testified that Hardenbrook was not. Also significant on appeal is defense counsel's alleged reference to a collateral source during the trial. On the fifth day of the trial, Angela Larchick (Larchick's mother) testified that she always thought Hardenbrook was not in the gym and that it troubled her and weighed on her and that she did not want her son in an environment she could not trust. On cross-examination, defense counsel asked Angela Larchick the following question: "When you filed your first lawsuit, you didn't even sue the school, did you?" In response, Angela Larchick stated that she did not know anything about that. Larchick's counsel moved for an immediate mistrial, claiming that defense counsel, in alluding to superseded pleadings, impermissibly referenced a collateral source of recovery. Defense counsel suggested that the reference did not imply anything and that Larchick could have sued any number of people. The District Court denied Larchick's motion for a mistrial. On a separate matter, Larchick also claimed that the Diocese violated the District Court's Post Final Pre-trial Order excluding evidence, argument, or suggestion that Powers was at fault for Larchick's injuries. Larchick claimed the Diocese violated the order by suggesting at trial that Powers may have been responsible for Larchick's injuries.

¶ 17 On May 2, 2007, the jury returned a verdict in favor of the Diocese. The jury did not reach issues of causation or damages, determining only that the Diocese was not negligent. Following the verdict, one of Larchick's attorneys, Elizabeth Halverson ("Halverson"), received a phone call from a man who identified himself as "John Peterson." The man told Halverson that he was Hardenbrook's friend and that he was very concerned about Hardenbrook. He also told Halverson that Hardenbrook was upset about the trial and that Hardenbrook told him ("Peterson") that he had lied under oath about his presence in the gymnasium when Larchick was injured. In sum, Hardenbrook evidently told Peterson who told Halverson that he had been pressured to say he was in the gymnasium when he was not. Halverson received the phone call from "John Peterson" on April 25, 2007. Halverson subsequently obtained a copy of the official telephone record, which indicated that the call had been placed from Hardenbrook's cell phone.

¶ 18 Halverson notified the District Court about the phone call shortly thereafter. The District Court held an emergency hearing on April 27, 2007. During the hearing, Halverson told the court about the phone call and produced a copy of the phone record. The District Court scheduled a hearing on the issue of Hardenbrook's testimony and...