Slaubaugh v. Slaubaugh

• Decision Date: 27 April 1993
• Docket Number: No. 920142,920142
• Citation: 499 N.W.2d 99
• Parties: Karen SLAUBAUGH, Plaintiff and Appellee, v. Wilmer L. SLAUBAUGH, Wold Engineering, P.C., a North Dakota professional corporation, and Pierce County, North Dakota, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 99

499 N.W.2d 99

Karen SLAUBAUGH, Plaintiff and Appellee, v. Wilmer L. SLAUBAUGH, Wold Engineering, P.C., a North Dakota professional corporation, and Pierce County, North Dakota, Defendants and Appellants.

Civ. No. 920142.

Supreme Court of North Dakota.

April 27, 1993.

McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellant Wilmer L. Slaubaugh; argued by Donald L. Peterson.

Olson, Sturdevant and Burns, Minot, for defendant and appellant Wold Engineering; argued by Gary H. Lee.

Fleck, Mather & Strutz, Bismarck, and Charles D. Orvik, Asst. State's Atty., for defendant and appellant Pierce County; argued by Steven A. Storslee.

Lamont, Skowronek & Dobrovolny, Minot, and Zuger Law Offices, Bismarck, for plaintiff and appellee; argued by John Skowronek. Appearance by William P. Zuger.

SANDSTROM, Justice.

Wilmer Slaubaugh, Pierce County, and Wold Engineering appeal from the district court's order changing venue from Pierce County to Ramsey County. We affirm.

Karen Slaubaugh was seriously and permanently injured in a one-vehicle accident when she and her husband Wilmer drove through an unmarked "T" intersection in Pierce County (County), during the early morning hours of April 13, 1986. At the time, the County was improving various roads in the Rugby area. Wold Engineering (Wold) was the project engineer. Karen sued, alleging negligence against Wilmer as the driver of the vehicle, and against the County and Wold for failing to mark the intersection. Trial was held in Pierce County with a jury finding that Karen and Wilmer were the only negligent parties. The jury apportioned 40 percent of the fault to Karen and 60 percent to Wilmer. The jury found damages of $233,000 for past and future medical expenses, lost wages and future lost wages, and permanent disability. Karen was awarded nothing for pain, discomfort, and mental anguish. She appealed. We reversed and remanded for a new trial. Slaubaugh v. Slaubaugh, 466 N.W.2d 573 (N.D.1991). ¹ We declined Karen's request to change venue from Pierce County on the basis that the district court was in a better position to make that decision. Id. at 583.

Karen's second jury trial in Pierce County was scheduled for March 23, 1992. Prior to voir dire, the district court ruled that evidence of marijuana and drug paraphernalia, found in Karen's possession at the scene of the accident, would not be admitted during trial. Consequently, the parties could not ask prospective jurors about the issue. Voir dire proceeded in chambers. After two days of voir dire, the district court expressed its concern about many of the prospective jurors:

"THE COURT: Counsel, for all of your benefit, my concern is a fairness of trial for all the parties here not just the Plaintiff not just the Defendants. But I have been keeping notes of some of the things that are going on in this voir dire examination and the cause and I know you haven't always agreed with whether you've excused them or not. But we have people who know the Plaintiff. We have people who are related. We have clients of the attorneys who have been discharged or I've dismissed 22 people because of this not just general principles. I'm not talking about principles of punitive damages against a county, against husband or wife. We're talking about 22; relatives, knowing people knowing things about the case. Already out of somewhere around 53--I think--50, we've had in here or maybe 49, I think one didn't show up, we have about half of them because of this case and there's still people in the 18 or 20 who have some knowledge. Then some of the people, they've said that won't affect them, but we wouldn't, don't have a pure 20 people who don't know anything. I think there's some concerns here for fairness to everyone. There's people who know commissioners. There's people who know Karen or people who know her parents. People who know Mr. Harmel, one of the witnesses. Now, the last one went out who knew the auditor and could not be in this but--

"MR. ZUGER: Well, the way I've looked at it--

"THE COURT:--We've got former employees of the County. Mr. Davidson worked for five and a half years for the County. We have a husband of one of your county employees, Mr. Orvik, Mr. Fritel. We have a bus driver who's been over that road. We have people who have been down that road. Some who know where the accident occurred. We've got a physical therapist in here who's worked on Karen. We've had just on and on and on and so I mean I've been through a lot of trials and a lot of cause, but I've never had this kind. I've had cause for farm, harvest time. I've had for some general ideas, but I've never had this many involved in all of the parties of our case for 50 people. So that's my concern right now."

With voir dire nearly complete, 30 out of 50 prospective jurors had been removed for cause by the court or litigants. ² Karen then moved for a change in venue ³ claiming she could not get a sufficiently large award in Pierce County because the prospective jurors, as taxpayers, might be reluctant to grant punitive damages against the county. Karen also cited the inability to ask prospective jurors about marijuana and the apparent inner relationships among the prospective jurors, litigants, and witnesses as concerns:

"The other thing I think the Court noted that yesterday afternoon is these people. Everybody seems to know everybody. And it's certainly impossible to try to gauge how that's going to break out. We've had 48 jurors who have been examined and 28 excused for cause. Last time, we had a third of the panel gone. This time we've got more than 60 percent of the panel gone for cause. And these are just statutory cause and I know from listening to the Defendants here, talking they don't think four peremptories are enough to guard from potential prejudice. Certainly, my estimation is if the Court gave ten peremptories to each side, that they'd all get burned up."

The defendants argued that the motion was not timely, and that Karen had no basis to claim she could not receive a fair and impartial trial in Pierce County since she had passed for cause on the prospective jurors retained for trial. The district court granted Karen's motion and stated:

"Now, the issue of waiver raised by Mr. Storslee. It is true that the Plaintiffs have passed for cause on individual jurors, prospective jurors, and that is based on, I assume, their position that this was through statutory authority for such under 28-14-06 which sets out specific reasons for an individual juror. But in a motion to change venue for the idea of an impartial or fair jury panel, I think we're looking at more than individuals. We're looking at the cummulative [sic] effect of the whole body that you sort of end up with. It could occur through the individual inquiry of voir dire, but that is not an absolute that it's there or never."

The district court was especially concerned about relationships among the prospective jurors, the litigants, and witnesses:

"Let's just go through some of those who are still here, what they have said, not what they haven't said, what they've said. [Prospective juror 1]. ⁴ Well, she knows [county commissioner] rather well. They share grandchildren together. She taught two generations of the Slaubaughs in school in Wolford. She said she could set those things aside. I'm not questioning that she cannot. Yet, just add this up and take a look at what we have.

"[Prospective juror 2]. My recollection she was very confused about a lot of the concepts in this case. And, in fact, it came out that her son had worked for Wold Engineering.

"[Prospective juror 3]. He's a former county employee. Former, so under our statute is not able to be excused.

"[Prospective juror 4]. She knew witnesses in the case. Said she could set them aside, but she knew witnesses.

"[Prospective juror 5]. He knew the Larsons, Karen's parents.

"[Prospective juror 6]. Now, these are people who are still on the panel. We got rid of many for all kinds of valid reasons. He not only knew [county commissioner], but his wife is a parttime employee for Mr. Orvik [co-attorney for the county]. He said he could set that aside, but it's still there.

"[Prospective juror 7]. There were mothers who were cousins. Karen's mother and someone else. It's not under the statute isn't cause, but it doesn't mean it isn't there.

"[Prospective juror 8]. He knew many of the witnesses. Perhaps none of them real well, but he lived in the community, so he knew them.

"[Prospective juror 9]. He knew some of the witnesses and he brought up a very key interesting thing which I think is another factor here. He was a member of the K.C. Club. They're not in this litigation, but people remember they were somehow involved in this at some point in time. It may not have been developed in voir dire. It probably isn't appropriate, but there's a factor there. And he right away--I remember his response well--if they're still involved in it, somehow he didn't think he could be on the jury. When I assured him they were not or counsel did, they he settled down a bit. But it's there. It was in the first litigation. It's in this community that the Knights of Columbus Club was sued as one of the Defendants.

"[Prospective juror 10]. He knew [witness]. They'd been co-workers at one time. He knows the roads and had been on a school bus road up in the Sand Lake area. And I think that is in the direction of which this accident occurred. That's out that way towards the Pleasant Lake way, but at least that was there.

"[Prospective juror 11]. She knew [Pierce County resident], who is from the firm of Mr. Orvik. She also knew some of the witnesses.

"That's over half of those who are still there, have this sort of what I call aura or this sort of feeling like this is a small inner-related community.

"Many of the people knew Mr. Orvik. And we have a rather unique situation in which Mr. Orvik is not only the attorney, but...