Slaubaugh v. Slaubaugh

• Decision Date: 21 February 1991
• Docket Number: No. 890328,890328
• Parties: Karen SLAUBAUGH, Plaintiff and Appellant, v. Wilmer L. SLAUBAUGH, Defendant and Appellee, The Columbus Club, Rugby, North Dakota, a North Dakota non-profit corporation a/k/a Columbus Club--Knights of Columbus, Louis V. Byron and Eileen E. Byron, a partnership, d/b/a Byron Construction, Defendants, and Wold Engineering, P.C., a North Dakota professional corporation, and Pierce County, North Dakota, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 573

466 N.W.2d 573

Karen SLAUBAUGH, Plaintiff and Appellant, v. Wilmer L. SLAUBAUGH, Defendant and Appellee The Columbus Club, Rugby, North Dakota, a North Dakota non-profit corporation a/k/a Columbus Club--Knights of Columbus, Louis V. Byron and Eileen E. Byron, a partnership d/b/a Byron Construction, Defendants and Wold Engineering, P.C., a North Dakota professional corporation, and Pierce County, North Dakota Defendants and Appellees.

Civ. No. 890328.

Supreme Court of North Dakota.

Feb. 21, 1991.

William P. Zuger (argued), of Zuger Law Offices, Bismarck, and John C. Skowronek (appearance), of Lamont, Skowronek & Dobrovolny, Minot, for plaintiff and appellant. Appearance by Rick Volk, third-year law student.

Donald L. Peterson (argued), of McGee, Hankla, Backes & Wheeler, Ltd., Minot, for defendant and appellee Wilmer L. Slaubaugh.

Gary H. Lee (argued), of Olson, Sturdevant & Burns, Minot, for defendant and appellee Wold Engineering, P.C. Appearance by Joseph Aas, third-year law student.

Steven A. Storslee (argued), of Fleck, Mather & Strutz, Bismarck, for defendant and appellee Pierce County.

MESCHKE, Justice.

Karen Slaubaugh appealed from a judgment upon a jury verdict awarding her damages against her husband, Wilmer Slaubaugh, for injuries that she received in a one-vehicle accident, but dismissing her claims against Wold Engineering, P.C. ["Wold"] and Pierce County ["County"]. We reverse the judgment and remand for a new trial.

The County improved various roads in the Rugby area during 1985. Wold was the engineer on the project, and Byron Construction ["Byron"] was the contractor. The construction was substantially completed before freeze-up, but some items remained to be finished the following spring. Although the roads remained open to the traveling public throughout the construction period, there were no traffic control or warning signs placed on the roads in question.

In the early morning hours of April 13, 1986, Wilmer and Karen were returning home from a wedding dance held at the Columbus Club, owned by the Knights of Columbus, in Rugby. Wilmer was driving, Karen was in the front passenger seat, and Wilmer's stepbrother, Johnny Slaubaugh, was in the back seat. Wilmer and Karen had been drinking, and they were arguing as they proceeded out of Rugby through the area of construction.

Traveling at a rate in excess of the speed limit, Wilmer drove through an unmarked "T" intersection. The vehicle sped through the intersection, became airborne, and hit a railroad embankment that ran parallel to the crossroad. Karen suffered severe and permanent injuries.

Wilmer's blood alcohol level was .21 at the time of the accident. Karen admitted that she was also intoxicated. In addition, police found marijuana in Wilmer's pants pocket and found marijuana and related paraphernalia in Karen's purse. Blood and urine samples from Wilmer tested negative for use of marijuana. No drug tests were performed on Karen.

Karen sued Wilmer, the County, Wold, Byron, and the Knights of Columbus. The complaint sought damages against all defendants based upon negligence, and an additional dram shop claim was asserted against the Knights of Columbus. Karen sought punitive damages from Wold, Byron, and the County.

The trial court granted a motion for partial summary judgment dismissing the claim for punitive damages. Karen dismissed her claims against the Knights of Columbus before trial, and the claims against Byron were dismissed with Karen's consent during trial.

The remaining claims went to the jury. The jury found that Karen and Wilmer were negligent, and that the County and Wold were not negligent. The jury apportioned negligence 40 percent to Karen and 60 percent to Wilmer. The jury found damages of $34,000 for past medical expenses; $80,000 for future medical expenses; $14,000 for lost wages; $20,000 for lost future wages; and $75,000 for permanent disability. The jury awarded nothing for pain, discomfort, and mental anguish. Judgment was entered upon the jury verdict. Karen appealed.

I. JURY VERDICT

Karen raises numerous questions on appeal, but the unifying theme in her arguments is that multiple errors combined in a jury verdict that was contrary to the evidence presented at trial.

Ordinarily, a jury's special verdict will be upheld on appeal whenever possible, and will be set aside only if perverse and clearly contrary to the evidence. Binstock v. Fort Yates Public School District No. 4, 463 N.W.2d 837, 839 (N.D.1990); Grenz v. Kelsch, 436 N.W.2d 552, 553 (N.D.1989). This court will generally interfere with a jury's award of damages only if it is so excessive or inadequate as to be without support in the evidence. Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 753 (N.D.1989); Massey-Ferguson Credit Corp. v. Orr, 420 N.W.2d 1, 2 (N.D.1988). Our review of the record here leads to the conclusion that various aspects of this jury verdict are clearly contrary to the evidence.

Perhaps the most striking inadequacy in the verdict is the award of $34,000 for Karen's past medical expenses. The parties had stipulated that Karen's past medical expenses were $68,488.51. There has been nothing presented to suggest that this stipulated amount did not represent Karen's reasonable and necessary medical expenses proximately caused by the accident. The jury's award of less than half the stipulated amount is a clear indication that the jury's decision was influenced by factors outside the evidence. As we discuss in later parts of this opinion, the jury may have been misled by the trial court's instructions or may have been influenced by the defendants' overemphasis on Karen's possession of marijuana. Whatever the reason, we conclude that the award of less than one-half of Karen's stipulated medical expenses is without support in the evidence.

The jury awarded Karen nothing for past or future pain, discomfort, and mental anguish. The determination of damages for pain, suffering, and mental anguish is not "susceptible of arithmetical calculation," but is largely dependent upon the "common knowledge, good sense and practical judgment of the jury." Stoner v. Nash Finch, Inc., 446 N.W.2d at 753. Thus, the determination of those damages rests largely within the sound discretion of the jury. Id. This is not to say, however, that the jury has absolute, unfettered discretion in setting damages for pain, suffering, mental anguish, and similar injuries. Rather, these standards suggest that in each case there is an allowable range within which the jury is free to assess damages as it sees fit. Just as a reviewing court, trial or appellate, may disturb the verdict when the jury's assessment of damages for pain, suffering, and mental anguish exceeds the outside limits of the range supported by the evidence, [see, e.g., Nelson v. Trinity Medical Center, 419 N.W.2d 886, 893-894 (N.D.1988) ], so too may a reviewing court overturn a verdict which is so inadequate as to be without support in the evidence. See Stoner v. Nash Finch, Inc., 446 N.W.2d at 753. This verdict was inadequate on pain, discomfort, and mental anguish.

The evidence established that Karen sustained devastating and permanent injuries. She suffered two crushed vertebrae and spinal cord injuries with a complete and permanent loss of bladder and bowel function, and loss of all sensation in her sexual organs. She has had extensive orthopedic surgery, including placement of steel rods and wires in her back. She also suffered a broken leg and damage to her right shoulder socket. Karen was twenty-three years old at the time of her injuries, but she will never regain bladder control, bowel control, or sexual sensation. Despite the obvious pain and mental anguish of her injuries, the jury awarded her no damages for pain, discomfort, or mental anguish. This failure to award any amount whatsoever for pain, discomfort, and mental anguish, given the severity and extent of Karen's injuries, shocks our judicial conscience. See Olmstead v. First Interstate Bank, 449 N.W.2d 804, 807 (N.D.1989); Hopkins v. McBane, 427 N.W.2d 85, 95 (N.D.1988). We conclude that the jury's award falls outside the boundaries of the acceptable range supported by the evidence. ¹

Another aspect of the jury verdict is disturbing. The special verdict separated the question of the County's liability into two parts. The first part asked whether the County was negligent. The second part asked whether the County's negligence, if any, was a proximate cause of the accident. The jury answered the first part "no," finding no breach of duty by the County, and accordingly not reaching the question of proximate cause.

It is difficult to reconcile the jury's verdict with the evidence. There is really no contention that the County did not have a duty to provide appropriate warning signs at the intersection, and the trial court instructed the jury that that was the County's responsibility under North Dakota law. Furthermore, the evidence demonstrates that warning signs of some type were required by the Uniform Manual on Traffic Control Devices, adopted by the State Highway Department, and that the County had been advised by the State Highway Department supervisor overseeing the project and by the engineer to place warning signs at this intersection. The County nevertheless failed to place any warning signs at the intersection.

The County's defense to liability, both at trial and on appeal, has been premised upon lack of causation. Essentially, the County argues that Wilmer was so drunk and traveling so fast that warning signs would not have prevented the accident. This is a causation argument, and does not go to duty or breach. A driver's intoxication does not relieve the County of its duty to provide a safe roadway. A venerable maxim tells us: "A drunken man is as much entitled to a safe street, as a sober one, and much more in need of it." Robinson v. Pioche, Bayerque & Co., 5 Cal. 460, 461 (1855). Wilmer's...