N.B. v. Terwilliger
| Decision Date | 20 April 2021 |
| Docket Number | No. 20200185,20200185 |
| Citation | 958 N.W.2d 487 |
| Parties | N.B., and Melissa Oster both individually and as the natural parent and legal guardian of N.B., Plaintiffs and Appellants v. Josh TERWILLIGER, Samantha Terwilliger, nka, Samantha Seewalker, and Kevin Terwilliger, Defendants and Appellees |
| Court | North Dakota Supreme Court |
Thomas V. Omdahl, Marine on St. Croix, MN, for plaintiffs and appellants.
Victoria A. Thoreson (argued) and Bradley J. Beehler (on brief), Grand Forks, ND, for defendants and appellees Josh Terwilliger and Kevin Terwilliger.
Barton J. Cahill, Moorhead, MN, for defendant and appellee Samantha Seewalker.
[¶1] Melissa Oster and N.B. appealed from two orders denying motions for a new trial after a jury awarded a verdict in N.B.’s favor. We affirm.
[¶2] Oster and her daughter, N.B., were staying at a residence owned by Kevin Terwilliger. Josh and Samantha Terwilliger were formerly married and lived at the residence. Samantha Terwilliger is now known as Samantha Seewalker, and she is Oster's cousin. On May 26, 2015, N.B. was playing with another child outside the Terwilliger residence while Oster and Seewalker were in the house. Josh and Kevin Terwilliger were not present. A horse on the Terwilliger property kicked N.B. in the head, seriously injuring her. The parties dispute the nature and extent of N.B.’s injuries.
[¶3] At trial, both sides provided testimony of expert medical witnesses to establish the extent of N.B.’s injuries. Dr. Rosen, a specialist in physical medicine, rehabilitation, and brain injury
medicine, testified for N.B. and Oster. Dr. Rosen indicated N.B. would have permanent long-term effects due to her injury. Deposition testimony of Dr. Tupper, a neuropsychologist and witness for the defense, was read into the record. Dr. Tupper agreed on cross-examination that N.B. would have difficulties functioning long term due to her injuries. Contrarily, a pediatric neurologist called by Josh and Kevin Terwilliger, Dr. Chadwick, testified that N.B. would have no permanent impairment.
[¶4] The parties also provided testimony of expert witnesses to estimate the total future economic loss N.B. will suffer due to her injuries. N.B. and Oster's economist, Ann Adair, gave a range of potential future economic losses from $401,253 to $736,480. N.B. and Oster also had a licensed counselor and life care planner, Reg Gibbs, testify that N.B.’s life care plan will cost $523,836. The economist for Seewalker, David Jones, testified that N.B. will suffer a total future economic loss of $63,030.
[¶5] Counsel for Josh and Kevin Terwilliger asked Gibbs about the race of N.B. and Oster on cross-examination. N.B. and Oster did not object. Gibbs was discussing the report he prepared for N.B. The conversation went as follows:
Later during the same cross-examination, defense counsel, without objection, asked about the income level of Oster while discussing the lost income calculations Gibbs did for N.B. The questioning went as follows:
[¶6] Without objection during closing arguments, N.B. and Oster argued any money awarded to N.B. would go into a trust until she turned eighteen. In addition to an award for past economic damages for medical bills, N.B. and Oster's attorney asked the jury to award N.B. future economic damages in the $925,089 to $1,260,316 range based on the testimony of their experts. N.B. and Oster also asked the jury to award N.B. future noneconomic damages for pain and suffering in the amount of $4,248,800 to $5,589,704.
[¶7] Seewalker argued she could accept some fault but also claimed "there's at least as much fault on [Oster]." Seewalker requested the jury compensate Oster for N.B.’s medical expenses in the amount of $32,047.83, and provide Oster with $5,000 to $10,000 in past economic damages and $5,000 to $10,000 in future economic damages. She also requested the jury award N.B. $63,030 in future economic damages based on the testimony of Jones, $25,000 in past non-economic damages, and $75,000 in future non-economic damages.
[¶8] Josh and Kevin Terwilliger asked the jury to find they had no fault in the accident. They argued the jury should maybe award Oster $32,000 in medical expenses, $5,000 for future economic damages, and a nominal amount for past and future non-economic damages. They also argued N.B. should get $63,030 in future economic damages and a fraction of the total medical expenses for past and future non-economic damages.
[¶9] While it was deliberating, the jury sent the district court a written question asking, "Can we know if any compensation absolutely be put in a trust for [N.B.]?" In the presence of the parties, the court read its draft answer to the jury's question stating, After the court read its draft answer, N.B. and Oster's attorney requested the court include in the answer that money awarded for N.B. would have to go into a trust. The court declined saying it did not believe it was the role of the court to tell the jury what happens with the funds after the jury awards them. The court stated, "Their role is to determine whether there was fault, and if there was, what is the amount of damages?" N.B. and Oster's counsel ultimately responded to the court's decision to answer the jury's question with "I'm okay with it." The court then submitted its original draft answer to the jury.
[¶10] On December 20, 2019, the jury returned a verdict in favor of N.B. The jury awarded N.B. future economic damages of $25,000 and past non-economic damages of $5,000, for a total of $30,000. The jury did not award Oster damages and found her 45% at fault for N.B.’s accident. The jury attributed 0% fault to Kevin Terwilliger. Of the remaining fault, 30% was attributed to Josh Terwilliger and 25% to Seewalker. The district court found N.B. was entitled to judgment in the amount of $9,000 against Josh Terwilliger and $7,500 against Seewalker.
[¶11] After the trial, two motions for a new trial were filed on behalf of N.B., not Oster. The district court denied the motions. N.B. and Oster appealed.
[¶12] On appeal, N.B. and Oster raise four main issues. First, N.B. and Oster argue there was an irregularity in the proceedings under N.D.R.Civ.P. 59(b)(1) that resulted in harmful error. Second, N.B. and Oster argue the district court erred under N.D.R.Civ.P. 59(b)(7) when it did not explain where possible awarded funds would go. Third, they argue the jury verdict was rendered under a misapprehension of the instructions or prejudice under N.D.R.Civ.P. 59(g). Fourth, they argue the jury was prejudiced against Oster.
[¶13] This Court reviews a district court's decision on a motion for a new trial for an abuse of discretion. Riddle v. Riddle , 2018 ND 62, ¶ 5, 907 N.W.2d 769.
A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.
Id. (quoting Carroll v. Carroll , 2017 ND 73, ¶ 9, 892 N.W.2d 173 ).
[¶14] The Terwilligers and Seewalker argue N.B. and Oster waived any objection to the district court's answer to the jury's question. Section 28-14-19, N.D.C.C., lays out the procedure for a district court to respond to jury questions. The relevant portion states:
[If the jurors] desire to be informed of any point of law arising in the case, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the parties or counsel.
N.D.C.C. § 28-14-19. When a court answers a jury's question on a point of law, it is further instructing the jury.
Moszer v. Witt , 2001 ND 30, ¶ 17, 622 N.W.2d 223. As a result, "The parties have a right to have the exceptions noted to the jury instructions to which they did not agree." Id. This Court has said:
A party who objects to a proposed jury instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection. Generally, a party failing to object to the giving or the failure to give an instruction after having adequate time to take exceptions waives the objection, and the instructions become the law of the case.
Bakke v. D & A Landscaping Co., LLC , 2012 ND 170, ¶ 14, 820 N.W.2d 357 (cleaned up).
[¶15] In this case, N.B.’s attorney objected and argued the answer to the jury's question should include an instruction on what the law allows regarding placing awards in a trust. Although the attorney did not provide a specific statute, N.B.’s attorney indicated his belief that the law required the money to go into a trust account. Therefore, an objection was made to the proposed answer to the jury's question and the issue was not waived.
[¶16] N.B. and Oster claim the lack of a response regarding a trust caused an irregularity in the proceedings and harmful error that warranted a new trial under N.D.R.Civ.P. 59(b)(1). Additionally, they arg...
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