Regan v. Stromberg
| Decision Date | 19 October 1979 |
| Docket Number | No. 49071.,49071. |
| Citation | 285 NW 2d 97 |
| Parties | Owen REGAN, as trustee for the next of kin of Susan Stromberg, Decedent, Appellant, v. Gary STROMBERG, Respondent. |
| Court | Minnesota Supreme Court |
Briggs & Morgan, Leonard J. Keyes, and Bonnie L. Berezovsky, St. Paul, for appellant.
Berens, Rodenberg, O'Connor & Olson, R. T. Rodenberg and Clark A. Tuttle, III, New Ulm, for respondent.
Considered and decided by the court en banc without oral argument.
Plaintiff, Owen Regan, as trustee for the next of kin of decedent, Susan Stromberg, appeals from an order of the district court denying his alternative post-trial motions for judgment notwithstanding the verdict or a new trial in this action for death by wrongful act. Defendant, Gary Stromberg, filed a notice of review. The issues raised are whether defendant had, as a matter of law, a continuing duty to protect decedent from foreseeable harm, whether the trial court erred in submitting the issue of superseding cause to the jury, and whether the trial court's inadvertent misstatement of one of the elements of superseding cause constitutes reversible error. We conclude that instructions on duty and superseding cause were proper but that the trial court's misstatement of a potentially controlling principle requires a new trial. We reverse and remand for a new trial on the issue of liability.
On February 26, 1977, decedent, Susan Stromberg, then age 29, and her husband, defendant, Gary Stromberg, then age 27, spent approximately 4 hours dancing and drinking beer in a Mankato tavern. Each consumed eight to ten bottles of strong beer prior to leaving the bar at about 12:30 a.m. Defendant testified that his wife did not manifest any of the usual physical signs of intoxication but that she was argumentative and was "needling" him while at the bar and after they left for their home in Madelia. A mile west of Lake Crystal on Highway 60 defendant struck decedent and told her that she could leave the car. She apparently agreed and got out when defendant stopped. It was a dark night, and she was dressed in dark clothing. Defendant drove away, intending to turn around and return. By the time he did so, decedent had been struck and killed by an automobile operated by Paul Anderson, an intoxicated driver. The driver testified that he saw decedent only an instant before impact and that she was crawling on the highway toward the ditch. Defendant's blood alcohol content was approximately .09 percent, while that of decedent was .22 percent. There was expert medical testimony that a person with decedent's blood alcohol content would appear obviously intoxicated.
The trustee brought suit against defendant and Anderson on behalf of decedent's two surviving minor daughters. A Pierringer release terminated the Anderson action and the trustee's action against defendant was tried to a jury. By special verdict the jury found both drivers (defendant and Anderson), as well as decedent, negligent but found that only Anderson's and decedent's negligence were direct causes of the death. Negligence was apportioned at 50 percent each and damages were assessed at $200,000. Accordingly, the court dismissed the trustee's cause of action with prejudice. The trustee moved for a new trial on the grounds that the issue of superseding cause should not have been submitted to the jury and that the instruction on superseding cause erroneously stated that a superseding cause must have been reasonably foreseeable by the original wrongdoer. The trial court denied the motion, reasoning that superseding cause was a fact question for the jury and that failure to object to the instruction, a correct statement of the law by defense counsel in final argument, and the jury's concerns as evidenced by its return for further instruction indicated that the error was not prejudicial.
On appeal the trustee first argues that a husband who negligently leaves his intoxicated wife on a highway at night has, as a matter of law, a continuing duty to protect her from foreseeable harm. The trustee concedes that the trial court's instruction to the jury correctly summarized the law with respect to the existence of a duty:
Where one is in charge of another, or who being under no duty to do so takes charge of another, and who knows or in the exercise of reasonable care should know that the physical or mental condition of such person is such that it is reasonably foreseeable that such person would be...
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