Priel v. R.E.D., Inc.
Decision Date | 30 July 1986 |
Docket Number | No. 11151,11151 |
Citation | 68 A.L.R.4th 945,392 N.W.2d 65 |
Parties | Marvel PRIEL, Plaintiff and Appellant, v. R.E.D., INC., a corporation, Defendant, Third Party Plaintiff and Appellee, v. WILLIAM COLLINS, INC., Third Party Defendant and Appellee. Civ. |
Court | North Dakota Supreme Court |
Stefanson, Landberg, Plambeck & Geeslin, Moorhead, Mn., for plaintiff and appellant; argued by Dan Plambeck.
Gjevre, McLarnan, Hannaher, Vaa, Skatvold & McLarnan, Moorhead, Mn., for defendant, third party plaintiff and appellee; argued by Timothy J. McLarnan.
Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Mn., for third party defendant and appellee. Submitted on brief by Jeffrey Hannig.
Marvel Priel appealed from a district court judgment entered on a jury verdict in favor of R.E.D., Inc. (Burger King), 1 and William Collins, Inc. (Collins). 2 We reverse and remand.
On January 11, 1982, Priel fell on an accumulation of snow and ice and fractured her right leg as she stepped from the sidewalk to the parking lot of a Burger King restaurant. Burger King employees were instructed to push snow from the sidewalk to the parking lot. Collins was employed to remove snow from the parking lot, but was not expected to get closer to the curb than six inches.
On August 18, 1983, Priel fell again and injured her left hip. Priel's treating physician testified that this fall was caused by instability of Priel's right knee resulting from the earlier fall at Burger King.
Priel sued Burger King for damages, alleging negligence and nuisance. Burger King filed a third-party complaint against Collins. The trial court refused to submit instructions on Priel's nuisance theory. The jury returned a special verdict in which it found: (1) that Burger King was negligent; (2) that Burger King's negligence was not a proximate cause of the injury to Priel; and (3) that Collins was not negligent. Judgment was entered accordingly.
In her appeal, Priel has raised issues about improper argument of counsel for Burger King, the trial court's failure to give a requested instruction, the jury's finding of negligence but not proximate cause, and the trial court's failure to submit Priel's theory of nuisance to the jury.
In his closing argument to the jury, Alden Gjevre, counsel for Burger King, said: "We are talking about money that my client will have to pay out of his own pocket." The following colloquy then occurred between the court and counsel:
In our view, counsel's statement implying that his client was not insured was an improper argument requiring reversal and a new trial.
This Court has long held that in a jury trial it ordinarily is improper and prejudicial to disclose that a party is or is not insured. In Beardsley v. Ewing, 40 N.D. 373, 168 N.W. 791 (1918), counsel for plaintiff in a medical malpractice action asked one of the defendant physicians whether or not he or his brother were insured against loss in malpractice cases. The questions were objected to and were not answered. This Court said, 168 N.W. at 794:
In Bischoff v. Koenig, 100 N.W.2d 159 (N.D.1959), the plaintiff was asked on direct examination who paid for his wife's funeral and burial expenses and he replied: "By Simon's [the defendant's] Insurance." 100 N.W.2d at 161. In reversing a jury verdict for the plaintiff, this Court said, 100 N.W.2d at 164:
See also, Neibauer v. Well, 319 N.W.2d 143 (N.D.1982); Kuntz v. Stelmachuk, 136 N.W.2d 810, 822 (N.D.1965); Stoskoff v. Wicklund, 49 N.D. 708, 193 N.W. 312 (1923); Georgeson v. Nielsen, 218 Wis. 180, 260 N.W. 461, 463 (1935); Annot., 4 A.L.R.2d 761 (1949).
In Kresel v. Giese, 231 N.W.2d 780, 786 (N.D.1975), we said that disclosure that a defendant carries liability insurance "is a matter considered so highly prejudicial as to require a mistrial or reversal;" that disclosure that a defendant is uninsured "does not serve to diminish the prejudicial nature of the reference to insurance;" and held that "the rule prohibiting references to liability insurance during the course of a trial extends to disclosure of the fact that the defendant is not covered by such insurance." We hold that defense counsel's statement, in closing argument to the jury, improperly and falsely implying that the defendant was not covered by liability insurance constituted prejudicial error requiring reversal.
Burger King asserts that Priel has demonstrated no prejudice, that we should not substitute our judgment on the possible effect of the statement for that of the trial court, that the trial court's determination that the statement was not prejudicial was within the trial court's discretion, and that in the following instruction the jurors were told that statements of counsel are not evidence:
"If counsel or I have made any comments or statements concerning the evidence which you find are not warranted by the evidence, you should wholly disregard them and rely upon your own recollection or observation."
We have already observed that disclosure in a jury trial that a defendant does or does not have liability insurance "constitutes prejudicial error requiring a mistrial or reversal." Neibauer v. Well, supra, 319 N.W.2d at 145. While the trial court may have weighed the possible prejudicial effects of curative measures suggested by counsel for Priel, the court did not assess the prejudicial effect of Gjevre's statement, as the court did not deem it to be improper. The general instruction on statements about evidence quoted above did not address the improper statement,...
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