Roberts v. Bonneville County

• Decision Date: 09 March 1994
• Docket Number: No. 19002,19002
• Citation: 873 P.2d 842,125 Idaho 588
• Parties: Paul ROBERTS, Plaintiff-Appellant, v. BONNEVILLE COUNTY, a governmental entity, and John Does I through X, Defendants-Respondents. Pocatello September 1993 Term
• Court: Idaho Supreme Court

Page 842

873 P.2d 842

125 Idaho 588

Paul ROBERTS, Plaintiff-Appellant, v. BONNEVILLE COUNTY, a governmental entity, and John Does I through X, Defendants-Respondents.

No. 19002.

Supreme Court of Idaho,

Pocatello September 1993 Term.

March 9, 1994.

Rehearing Denied May 11, 1994.

Dissenting Opinion on Denial of Rehearing by Bistline, Justice, May 11, 1994.

Thomsen & Stephens, P.A., Idaho Falls, for appellant. James D. Holman argued.

Anderson, Pike & Bush, Idaho Falls, for respondents. Blake G. Hall argued.

McDEVITT, Chief Justice.

BACKGROUND

On the evening of August 11, 1987, the appellant, Paul Roberts ("Roberts"), attended a party with two friends, Mike McGee ("McGee") and John Schreiber ("Schreiber"). They drove to the party in Roberts' vehicle, a 1985 Toyota pickup truck. While at the party The intersection of North County Line Road and State Highway 48 occurs at a right angle forming a "T," immediately following a near ninety degree angle in North County Line Road. Schreiber, travelling at 60-65 mph toward the intersection on North County Line Road, which is marked with a maximum speed of 50 mph, saw the warning sign marking the curve only at the last moment, when McGee pointed it out to him. Schreiber, who was travelling too fast for the curve, sped uncontrolled through the intersection, rolling the truck into a wheat field bordering the highway. All three occupants were thrown from the vehicle.

[125 Idaho 589] the three consumed varying quantities of alcohol. They left the party around 11:45 p.m., intending to drive to Heise, Idaho, to attend another party. Roberts gave his keys to Schreiber, apparently because he was too tired to drive himself. Schreiber was driving the vehicle when an accident occurred at the intersection of North County Line Road and State Highway 48.

Roberts suffered permanent paralysis as a result of the accident. Schreiber, who claimed full responsibility for the accident, after having registered a blood alcohol level of .12 within an hour of the rollover, sustained minimal injuries as did McGee. Roberts sued Bonneville County on April 4, 1988, alleging negligent design, construction, signing, and maintenance of the intersection where the accident occurred. Bonneville County raised the affirmative defense of contributory negligence pursuant to I.C. § 49-1404. Roberts moved for partial summary judgment striking this affirmative defense. The trial court denied Roberts' motion.

At trial, the evidence concentrated heavily upon whether the North County Line Road approaching the intersection with Highway 48 was properly marked. Roberts presented evidence that a "stop ahead" sign was not in place, and should have been, and that the curve sign should have contained a reduced speed sign. Bonneville County presented evidence that industry standard did not require a "stop ahead" sign, and, even so, one was in place at the time of the accident. In addition, industry standard did not require a posted speed on the curve sign. In support of its argument, Bonneville County introduced eyewitness testimony of the deputy who investigated the accident, testimony of the County's road sign shop foreman, Jack Parker ("Parker"), as well as sign shop log books containing entries concerning maintenance of a "stop ahead" sign at the subject intersection. Jack Parker testified that he saw the "stop ahead" sign in place on August 3, 1987. He also testified that on September 29, 1987, he replaced the same sign because it was missing. Roberts attempted to impeach the testimony of Parker whose testimony relied in part on the log books, by insinuating that the subject entries were forged. Roberts never proved forgery.

In addition to denying any negligence, Bonneville County asserted that the accident was caused solely by the negligence of Schreiber, who was legally intoxicated at the time of the accident. The trial court allowed Bonneville County to introduce a film entitled "Under the Influence," prepared by the National Safety Council, as evidence of an experiment under Idaho Rules of Evidence 402. The film depicts an experiment whereby individuals with unusually high resistance to the effects of alcohol were tested under various driving conditions. The individuals' judgments and reaction times to various driving conditions were tested prior to the consumption of alcohol and again after the blood alcohol level of the individuals had reached .10. The film then sets out the test results and quantifies specific and average levels of driving impairment attributable to the .10 blood alcohol level. Roberts made a pretrial motion to exclude the film as violative of I.R.E. 403. The trial court denied this motion, although it edited some segments of the film that the court felt might prejudice the jury.

On June 7, 1990, the jury returned a verdict finding that Bonneville County was not negligent in its design, construction, or signing of the intersection. Roberts moved for a new trial or judgment n.o.v. The trial court denied the motions.

On October 17, 1990, Roberts requested post-trial production of the original log books, which were a central subject of debate during the trial. The log books had been On appeal Roberts raises the following issues:

[125 Idaho 590] returned to Bonneville County following the verdict. The trial court ordered production on November 5, 1990, to enable Roberts to have the logs forensically analyzed for evidence of forgery. The log books were boxed for delivery by Parker and inadvertently dumped in the Bonneville County landfill, apparently mistaken for garbage. Ultimately, all but two of the log books were recovered and analyzed by Roberts' expert, Dr. Throckmorton, who found no evidence that the logs had been tampered with or doctored. Meanwhile, Roberts moved for a new trial based on "newly discovered evidence," the disappearance of the two missing log books. Judge George retired before ruling on the motion, after having made initial findings of fact. The motion was heard by District Judge James C. Herndon on March 21, 1991. On April 17, 1991, Judge Herndon denied the motion.

I. Whether the trial court erred in refusing to grant Roberts' motion for partial summary judgment on the issue of imputation of negligence under I.C. § 49-1404.

II. Whether a new trial should be ordered as a result of misconduct on the part of the trial court and defense counsel.

III. Whether the trial court abused its discretion in denying Roberts' pretrial motion to exclude the videotape.

IV. Whether the trial court abused its discretion in denying Roberts' motion for a new trial based on newly discovered evidence.

STANDARD OF REVIEW

On appeal, the Supreme Court will not reverse a trial court's order granting or denying a motion for new trial unless the trial court has manifestly abused the wide discretion vested in it. Hoglan v. First Bank of Idaho, 120 Idaho 682, 684, 819 P.2d 100, 102 (1991). While the Supreme Court must review the evidence, it is not in a position to "weigh" it as the trial court does. Quick v. Crane, 111 Idaho 759, 770, 727 P.2d 1187, 1198 (1986).

ANALYSIS

I.

APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF IMPUTATION OF LIABILITY UNDER I.C. § 49-1404 (NOW I.C. § 49-2417)

Roberts argues that it was error for the trial court to rule at summary judgment and later instruct the jury that any negligence on the part of Schreiber, the driver of the truck, must be imputed to Roberts, the owner of the truck, pursuant to I.C. § 49-1404. ¹

Since the jury found no negligence on the part of Bonneville County, we do not need to address this issue.

II.

APPELLANT'S MOTION FOR A NEW TRIAL BASED ON MISCONDUCT

Roberts' asserts that misconduct on the part of the trial court and defense counsel occurred in the context of at least three ex parte communications admitted to by both. The communications allegedly took place while Roberts' pretrial motion to suppress a prejudicial video tape on drinking and driving was under consideration. The record reflects that Roberts failed to raise this issue before the trial court, which precludes this Court from addressing the issue for the first time on appeal. State v. Fisher, 123 Idaho 481, 849 P.2d 942 (1993); Sun Valley Shopping Center v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 999 (1991).

III.

APPELLANT'S PRETRIAL MOTION TO EXCLUDE THE FILM

Roberts next argues that the trial court erred in admitting into evidence a video tape entitled "Under the Influence: So You Think You Can Drink and Drive." Roberts contends that the tape, which purported to be a scientific test of the effects of alcohol on driving ability, was really an editorial on the immorality of drinking and driving, which unnecessarily and prejudicially misled and inflamed the jury against Roberts. We hold that the jury verdict, which recites a finding of no negligence on the part of Bonneville County, renders any error in the admission of the film harmless.

IV.

NEWLY DISCOVERED EVIDENCE

Roberts finally asserts that the trial court erred in denying his I.R.C.P. 60(b) motion for a new trial based on newly discovered evidence, ² namely, the loss of the log books. Implicit in Robert's argument for a new trial is the assertion that Judge Herndon should have declined to rule on the motion for new trial on its merits, and granted a new trial according to I.R.C.P. 63. Rule 63 of the Idaho Rules of Civil Procedure states:

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that the judge cannot perform those duties because the judge did not preside at the trial or for any other reason, the judge may in the...