Leavitt v. Swain, 23421

Citation131 Idaho 765,963 P.2d 1202
Decision Date07 August 1998
Docket NumberNo. 23421,23421
PartiesAllen LEAVITT, Plaintiff-Appellant, v. Mary E. SWAIN, Defendant-Respondent.
CourtCourt of Appeals of Idaho

Hepworth, Lezamiz & Hohnhorst, Boise, for Plaintiff-Appellant. John J. Janis argued.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for Defendant-Respondent. Mark S. Prusynski argued.

LANSING, Chief Judge.

This is a negligence action arising out of a traffic accident. On appeal following a jury

trial, the plaintiff contends that the district court erred in denying his motions for partial summary judgment and for judgment notwithstanding the verdict on liability, in denying the plaintiff's motion for a new trial on damages, in conducting an inadequate investigation into jury misconduct and prohibiting the plaintiff from deposing a juror in relation to those allegations, and in ordering that the plaintiff pay the defendant's costs incurred after the plaintiff declined an offer of judgment. The plaintiff also contends that misconduct by defense counsel in closing argument necessitates a new trial.

I FACTS AND PROCEDURAL BACKGROUND

On New Year's Day, 1994, the vehicles of Allen Leavitt and Mary Swain were involved in a head-on collision on Middleton Road in Canyon County. Following the accident, Swain admitted that she had lost control of her car on the icy roadway and may have slid over the centerline and into Leavitt's oncoming vehicle. Leavitt filed suit against Swain alleging that he was permanently disabled as a result of the collision. He requested damages for his pain and suffering, medical expenses, and loss of past and future earning capacity. Leavitt filed a motion for partial summary judgment on the issue of liability, arguing that the undisputed facts establish that Swain's negligence caused the accident. The district court denied the motion, and the case was eventually tried to a jury. The jury assigned seventy-five percent of the negligence causing the accident to Swain and twenty-five percent to Leavitt, and found that Leavitt had incurred damages in the amount of $37,300. Dissatisfied with the jury's award, Leavitt filed alternative motions for a new trial or an additur and for a judgment notwithstanding the verdict. Each motion was denied by the district court.

On appeal, Leavitt raises several claims of error, including the following: (1) that the district court incorrectly denied his motions for partial summary judgment, for a new trial, and for a judgment notwithstanding the verdict; (2) that during closing argument defense counsel improperly implied that Swain lacked insurance coverage and improperly commented on Leavitt's character; (3) that juror misconduct requires a new trial; and (4) that the district court erred in concluding that Swain was entitled to costs under I.R.C.P. 68 on the basis of an offer of judgment that had been rejected by Leavitt. In light of our disposition of these issues, we find it unnecessary to address additional issues presented by Leavitt.

II. THE DISTRICT COURT'S DENIAL OF LEAVITT'S MOTION FOR SUMMARY JUDGMENT IS NON-REVIEWABLE

Leavitt contends that the district court erred in denying his motion for partial summary judgment on the issue of liability. He maintains that Swain presented no evidence to refute Leavitt's showing that Swain caused the collision by crossing over the centerline into Leavitt's lane and that Leavitt was therefore entitled to judgment on liability as a matter of law. We do not consider this issue, however, as it is well established that an order denying summary judgment is nonappealable and non-reviewable. Watson v. Idaho Falls Consolidated Hospitals, Inc., 111 Idaho 44, 46, 720 P.2d 632, 634 (1986); Herrick v. Leuzinger, 127 Idaho 293, 305, 900 P.2d 201, 213 (Ct.App.1995); Keeler v. Keeler, 124 Idaho 407, 410, 860 P.2d 23, 26 (Ct.App.1993); Evans v. Jensen, 103 Idaho 937, 941-42, 655 P.2d 454, 458-59 (Ct.App.1982). As explained in Herrick, "The rationale for this rule is that, once all the evidence has been presented at trial, the final judgment in a case should be tested upon the record made at trial, not the less complete record existing when summary judgment was denied." Herrick, 127 Idaho at 305, 900 P.2d at 213. See also Evans, 103 Idaho at 942, 655 P.2d at 459.

III. THE DISTRICT COURT ERRED IN NOT GRANTING LEAVITT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT ON LIABILITY

After the return of the jury's verdict, Leavitt moved for a judgment notwithstanding When reviewing the disposition of a motion for a judgment notwithstanding the verdict, appellate courts utilize the same standard that governs the trial court's decision. That is, we must determine whether, admitting the truth of the non-movant's evidence and drawing every legitimate inference most favorably to the non-movant, there exists substantial evidence upon which the jury could properly find for the non-moving party. Curtis v. Firth, 123 Idaho 598, 605, 850 P.2d 749, 756 (1993); Hudson v. Cobbs, 118 Idaho 474, 478, 797 P.2d 1322, 1326 (1990); Quick v. Crane, 111 Idaho 759, 763-764, 727 P.2d 1187, 1191-92 (1986). "Substantial evidence" is more than a mere scintilla, Adkison Corp. v. American Building Co., 107 Idaho 406, 408, 690 P.2d 341, 343 (1984); Desert Irrigation Co. v. Tolmie, 103 Idaho 673, 675, 651 P.2d 938, 940 (Ct.App.1982), affirmed, 106 Idaho 78, 675 P.2d 338 (1983); it is evidence of sufficient quantity and probative value that reasonable minds could conclude that a verdict in favor of the party against whom the motion was made is proper. Stephens v. Stearns, 106 Idaho 249, 253, 678 P.2d 41, 45 (1984). See also Watson v. Navistar Int'l. Transp. Corp., 121 Idaho 643, 658, 827 P.2d 656, 671 (1992); Barlow v. International Harvester Co., 95 Idaho 881, 886, 522 P.2d 1102, 1107 (1974). Whether the evidence is sufficient to create a question of fact for the jury is an issue of law, and we therefore do not defer to the decision of the trial court but exercise free review. Curtis, supra; Quick, supra. Although questions of negligence are ordinarily factual issues, a court may make a determination as a matter of law when the undisputed evidence leads to only one reasonable conclusion. See Joyner v. Jones, 97 Idaho 647, 650, 551 P.2d 602, 605 (1976); Mico Mobile Sales & Leasing v. Skyline Corp., 97 Idaho 408, 412-14, 546 P.2d 54, 58-60 (1975); Umphenour v. Yokum, 118 Idaho 102, 104, 794 P.2d 1158, 1160, (Ct.App.1990); DeMeyer v. Maxwell, 103 Idaho 327, 331, 647 P.2d 783, 787 (Ct.App.1982).

the verdict on liability pursuant to Idaho Rule of Civil Procedure 50(b). The district court denied the motion. Leavitt assigns error to this ruling.

Applying these standards, we conclude that the district court improperly denied Leavitt's motion. All of the evidence on the cause of the collision points to Swain's negligence, and we can find no evidence that Leavitt bore any fault. Each of the witnesses to the collision indicated that Swain lost control of her car when it started sliding on the icy road. Swain testified that she was driving in the northbound lane when the back end of her vehicle started to skid on the ice. As she tried to regain control of the vehicle, it slid to the right toward the roadside and then to the left toward the centerline. She said that it was at this instant that she saw the headlights of an oncoming vehicle and slammed on the brakes. The vehicles then collided. Swain also testified that she was unaware of anything Leavitt did or failed to do that caused or contributed to the collision.

Leavitt's version of the accident comports with Swain's. He testified that he was driving southbound when he saw the headlights of an approaching car dart to his left and then back to the right directly toward his vehicle. He indicated that he had no time to react before the approaching car crossed into his lane and slammed into his vehicle. Leavitt's passenger confirmed his story. She testified that due to the slick road conditions, Leavitt was traveling at about 30 to 35 miles an hour, well below the posted 50 mile per hour speed limit, when another car coming towards them suddenly started to go off the road and then came back across the road into their lane of travel and hit them.

Officer Bowerman, the police officer charged with investigating the accident, concluded that the collision occurred when Swain's vehicle crossed the centerline. He testified that the final resting place of the vehicles as well as the location of debris was consistent with the accident occurring just inside Leavitt's lane of travel.

Under two Idaho statutes, I.C. §§ 49-630 and 49-631, drivers are required to operate their vehicles on the right side of the highway and to pass oncoming vehicles on the right. It is negligence per se for a driver to violate these statutes unless a valid excuse for the violation is shown. Teply v. Lincoln, 125 Idaho 773, 775, 874 P.2d 584 Swain's counsel attempted during cross-examination to discredit Officer Bowerman's opinion as to the point of impact by calling into question his investigative techniques as well as his interpretation of the evidence. This cross-examination reasonably could have led the jury to discredit and disregard the officer's opinion that the vehicles collided in Leavitt's lane, but the cross-examination produced no affirmative evidence that the accident occurred in the other lane or that Leavitt was in any way negligent in responding to the sudden erratic movement of Swain's vehicle.

                586 (Ct.App.1994).  Icy road conditions do not serve to excuse a violation of these statutes.  Id. at 776, 874 P.2d at 587.   See also Haakonstad v. Hoff, 94 Idaho 300, 486 P.2d 1013 (1971).  Therefore, uncontroverted testimony that Swain's car slid across the center line was sufficient to establish her negligence per se
                

If the cross-examination convinced the jury that Bowerman's opinion was unreliable, then the jury was left with...

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