Praus ex rel. Praus v. Mack

Decision Date01 May 2001
Docket NumberNo. 20000106.,20000106.
Citation2001 ND 80,626 N.W.2d 239
PartiesCarolina A. PRAUS, individually, and on behalf of the heirs at law of Christian PRAUS, deceased; Carolina A. Praus, as trustee for the North Dakota Workers Compensation Bureau, Plaintiffs and Appellants, v. Brian MACK, Keith Brown Trucking, Inc., Defendants and Appellees, and James Cape and Sons, Inc., Defendant, Third-Party Plaintiff and Appellee, v. Edling Electric Co., Third-Party Defendant and Appellee.
CourtNorth Dakota Supreme Court

H. Morrison Kershner, Pemberton, Sorlie, Rufer and Kershner, PLLP, Fergus Falls, for plaintiffs and appellants.

Kraig A. Wilson (argued) and Patrick R. Morley (on brief), Grand Forks, for defendant and appellee Brian Mack.

Howard D. Swanson, Letnes, Marshall & Swanson, Ltd., Grand Forks, for defendant and appellee Keith Brown Trucking, Inc.

Stephen W. Plambeck (argued) and Joel M. Fremstad (on brief), Nilles, Hansen & Davies, Ltd., Fargo, for defendant, third-party plaintiff and appellee.

Gordon W. Myerchin (argued) and Darin B. Barker (on brief), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, for third-party defendant and appellee.

KAPSNER, Justice.

[¶ 1] Carolina A. Praus, individually and on behalf of the heirs at law of Christian Praus and as trustee for the Workers Compensation Bureau, appealed from a judgment dismissing her wrongful death action against Brian Mack, Keith Brown Trucking, Inc., and James Cape and Sons, Inc., and dismissing her motion for a new trial. We conclude the trial court did not abuse its discretion in refusing to sever the indemnity claims from the negligence trial; did not err in granting additional peremptory challenges to the parties; did not err in limiting the testimony of expert witnesses concerning violation of safety regulations; did not commit reversible error in instructing the jury; and did not abuse its discretion in denying Praus' motion for a new trial based on allegations of juror misconduct. We affirm.


[¶ 2] This wrongful death action arose out of an accident at a highway construction project on September 19, 1994, in Grand Forks. Christian Praus was killed when a truck filled with wet cement and driven by Brian Mack backed over him. At the time of the accident, Christian was drilling holes in the roadbed of the construction project preparing for the installation of electric signaling facilities.

[¶ 3] Christian was employed by Edling Electric Co. ("Edling"), which was an electrical subcontractor of James Cape and Sons, Inc. ("Cape"), the prime contractor for the project. Mack worked under a subcontract with Keith Brown Trucking, Inc. ("Brown"), to provide a truck and to haul wet batch cement. Brown had a subcontract with Cape to provide trucks and to haul cement.

[¶ 4] Carolina Praus, individually and on behalf of the heirs and the Workers Compensation Bureau, brought this wrongful death action against Mack, Brown and Cape in March 1996. Praus alleged Mack directly caused Christian's death because he was negligent in failing to keep a reasonable lookout for workers and in failing to have a functional reverse signal alarm on the truck to warn individuals when the truck was backing up. Praus alleged Brown directly caused the death because it was vicariously responsible for Mack's negligence, and Brown was itself negligent in failing to properly evaluate and monitor the construction site to make sure workers were not exposed to the hazard of being struck by heavy equipment and in failing to make sure trucks leased to it were equipped with functional reverse signal alarms. Praus alleged Cape directly caused the death because it was likewise negligent in failing to properly evaluate and monitor the construction site. Brown cross-claimed against Mack for contribution or indemnity for any damages Praus may recover from Brown. Cape cross-claimed against Brown and brought a third-party action against Edling, claiming entitlement to indemnity for any damages awarded to Praus based on the language of its subcontract agreements.

[¶ 5] The trial court denied Praus' motion to sever Cape's indemnity claims against Edling and Brown from the negligence action. Following a two-week trial, the jury found Christian 60 percent at fault and a proximate cause of his own death, Cape 25 percent at fault and a proximate cause of the death, and Mack 15 percent at fault and a proximate cause of the death. The jury found Edling was at fault, but assigned no percentage of negligence because the jury found Edling did not proximately cause the death. The jury found Brown and "Others" listed on the verdict form not to be at fault. The trial court denied Praus' motion for a new trial and dismissed Praus' claims with prejudice. Praus appealed.


[¶ 6] We review a trial court's denial of a N.D.R.Civ.P. 59 motion for a new trial under the abuse of discretion standard. Schneider v. Schaaf, 1999 ND 235, ¶ 12, 603 N.W.2d 869. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. In re S.J.F., 2000 ND 158, ¶ 22, 615 N.W.2d 533.


[¶ 7] Praus contends the trial court erred in refusing to sever the indemnity claims from the negligence trial.

[¶ 8] A trial court has broad discretion over the conduct of a trial, but it must exercise this discretion in a manner that best comports with substantial justice. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 580 (N.D.1991). A trial court's rulings on a motion for severance under N.D.R.Civ.P. 21, or a motion for a separate trial under N.D.R.Civ.P. 42(b), will not be overturned on appeal unless the complaining party demonstrates the court abused its discretion. Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439, 442 (N.D.1991); Fed. Land Bank of Saint Paul v. Wallace, 366 N.W.2d 444, 448 (N.D.1985); Bismarck Pub. Sch. v. Ritterbush Assoc., 313 N.W.2d 712, 715 (N.D.1981); Schell v. Schumacher, 298 N.W.2d 474, 477 (N.D.1980); Brauer v. James J. Igoe & Sons Const., Inc., 186 N.W.2d 459, 474-75 (N.D.1971).

[¶ 9] A chronology of procedural events is helpful for understanding this issue. Early in the litigation, Brown moved for summary judgment on the basis that it was not responsible for the negligent acts of Mack, its independent contractor. In December 1997, the trial court agreed with Brown and dismissed Praus' negligence claims against it, "subject to any right Cape may have to indemnification." The court ruled Praus had presented no evidence to show Brown had any control over Mack, or supervised or inspected any part of Mack's work. The court found Praus' claims against Brown were "meritless" and awarded Brown attorney fees and costs incurred in defense of the claim. The court also noted "although Cape has not made a motion for summary judgment, based upon the record now before this Court, it appears that Cape may also be entitled to summary judgment for the same reasons set forth herein."

[¶ 10] Cape then moved for summary judgment in April 1998 on the same grounds advanced by Brown. Praus, who had obtained different counsel, opposed the motion, arguing because the project was a federal highway project, Cape, as the general contractor, was mandated by federal law to retain control over construction operations. According to Praus, under federal law, the prime contractor and any subcontractors were deemed to have joint responsibility. Praus also argued the record showed Cape exercised actual control over the method and manner of the work at the construction site. Praus had not advanced these reasons in response to Brown's motion for summary judgment. The court adopted Praus' arguments and denied the summary judgment motion, concluding the "amount of control, and therefore the amount of negligence, if any, is a question for the jury to decide."

[¶ 11] Brown then settled with Praus, and Praus' action against Brown was dismissed with prejudice by agreement between those parties. Praus moved for severance of the indemnity claims brought by Cape against Edling and Brown from the negligence claims against Mack and Cape "to avoid prejudice and jury confusion." In January 1999, the court found judicial economy and the comparative fault law required the claims to be tried in one action and Praus had failed to show undue prejudice would occur. The court ruled all claims in the case, excluding Cape's contract claims against Brown, would be tried in one action and the court would provide the jury with adequate instructions to avoid undue prejudice. In February 1999, Brown's cross-claim against Mack was severed by agreement of those parties to be tried separately after the wrongful death action.

[¶ 12] In March 1999, the parties appeared before the court for a settlement conference where the issue of joint liability between Brown, Cape and Edling under federal law was discussed. In May 1999, the court ruled N.D.C.C. § 32-03.2-02, providing for several liability, was not preempted by the federal regulations governing federal highway projects, and liability of the defendants under the circumstances of this case would be several rather than joint. The court also denied Edling's motion for summary judgment because it was made too late and would delay the trial. The court did not rule on the validity of the contractual indemnity claims.

[¶ 13] Mack, Brown, Cape and Edling participated during the trial. The trial court instructed the jury:

Defendant Cape also cross-claimed against Defendant Keith Brown Trucking (Brown) and joined Edling Electric Company (Praus' employer) alleging that if Cape is found by the jury to be negligent, then Brown and Edling must indemnify Cape for the total of all damages assessed against Cape. Both Brown and Edling deny any negligence and also deny that they must indemnify Cape if damages are awarded. However, the issue of indemnity is a matter of law and shall be decided by the

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