Sollin v. Wangler

• Citation: 2001 ND 96,627 N.W.2d 159
• Decision Date: 22 May 2001
• Docket Number: No. 20000284.,20000284.
• Parties: Richard SOLLIN and Linda Sollin, Plaintiffs and Appellants v. Dale WANGLER and Pius Wangler, Defendants and Appellees.
• Court: United States State Supreme Court of North Dakota

627 N.W.2d 159

2001 ND 96

Richard SOLLIN and Linda Sollin, Plaintiffs and Appellants v. Dale WANGLER and Pius Wangler, Defendants and Appellees.

No. 20000284.

Supreme Court of North Dakota.

May 22, 2001.

Douglas J. Nill (argued), Douglas J. Nill Law Office, Minneapolis, MN, for plaintiffs and appellants.

Lee J. Balerud (appeared), Minot, for plaintiffs and appellants.

Jerry W. Evenson, Zuger Kirmis & Smith, Bismarck, for defendants and appellees.

VANDE WALLE, Chief Justice.

[¶ 1] Richard and Linda Sollin appealed from an order denying a motion for new trial in their personal injury action against Dale and Pius Wangler. We conclude the trial court's failure to inform the jury, sua sponte, about the effect of its answers to comparative fault questions on its award of damages is not fundamental error requiring a new trial, and the court did not abuse its discretion in denying the motion for new trial. We affirm.

I

[¶ 2] On February 13, 1995, Richard Sollin was employed by David Migler to operate Migler's hay grinder and grind straw for Dale and Pius Wangler. While the grinder was operating, Sollin began greasing the grinder in preparation for the next grinding job at another location. Dale Wangler, who had been using a tractor-loader to load the grinder with large straw bales, attempted to place another bale in the grinder tub. The 1,200-pound bale fell out of the tub and struck Sollin, severely injuring him. In January 1999, Sollin and his wife, Linda Sollin, sued the Wanglers, claiming Dale negligently operated the tractor-loader and Pius negligently instructed Dale about the grinding process. The Sollins sought damages for Richard's injuries and Linda's loss of consortium. The Wanglers alleged Richard's own negligence in approaching the grinder tub to grease the machine while it was still operating proximately caused his injuries.

[¶ 3] During the jury trial, the Sollins did not request an instruction which would have advised the jury how its comparative fault findings might impact an award of damages. Under North Dakota's comparative fault law, the Sollins would not be able to recover damages if their fault was "as great as the combined fault of all other persons" who contributed to the injury. N.D.C.C. § 32-03.2-02. As requested by the Sollins, the trial court instructed the jury:

ALTERNATIVE FINDINGS

If, adhering to these instructions, you find that damages of Plaintiff were proximately caused by the combined negligence of both Plaintiff and Defendant, you will then return a Special Verdict determining the amount of those damages, without dimunition for negligence and determining the percentages of fault of each party which proximately caused the damages claimed.

[¶ 4] The jury retired to deliberate at 4:40 p.m. on December 10, 1999. At 6:35 p.m., the court received a communication from the jury, stating "[w]e feel both parties are at fault," and requesting clarification on how to reflect that conclusion in the special verdict form. The court answered the question after consulting with counsel for the parties. At 8:29 p.m., the court received another communication from the jury: "Judge. Is the % of fault going to damage awards." The transcript discloses, "[b]y agreement, the Court and counsel handled it off the record." The Sollins' counsel later attested in an affidavit the trial court told the jury "to follow the instructions that were given after closing arguments."

[¶ 5] At 8:59 p.m., the jury returned its verdict, finding Dale Wangler 50% at fault, Pius Wangler 0% at fault, Richard Sollin 50% at fault, and David Migler, a non-party, 0% at fault. The jury found Linda Sollin had incurred no damages, but found Richard Sollin had incurred $100,000 in past and future economic and noneconomic damages. Next to the line where the jury awarded Richard $8,000 for "Future Medical Expenses," the jury noted: "(to be used for Rehab)." Because Sollin's fault was as great as Wangler's fault, the trial court dismissed with prejudice the Sollins' claims against the Wanglers.

[¶ 6] The Sollins moved for a new trial, arguing the trial court erred as a matter of law in failing to comply with "procedural mandates" and to explain to the jury, upon the jury's request, how its answers to the comparative fault questions would affect the award of damages. The Sollins argued they were denied fundamental constitutional rights by the trial court's failure to do so. The trial court denied the motion, ruling the Sollins had not shown they were entitled to a new trial under any of the grounds set forth in N.D.R.Civ.P. 59(b). The court determined the instructions given were adequate and counsel could have explained to the jury during closing arguments, but did not, the relationship between comparative fault findings and damages. The Sollins appealed from the order denying their motion for new trial.

II

[¶ 7] The Sollins argue the trial court erred in denying their motion for new trial because a fundamental error of law and manifest injustice occurred in this case.

[¶ 8] We review a trial court's denial of a N.D.R.Civ.P. 59(b) motion for new trial under the abuse of discretion standard. Ali by Ali v. Dakota Clinic, Ltd., 1998 ND 145, ¶ 5, 582 N.W.2d 653. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Schneider v. Schaaf, 1999 ND 235, ¶ 12, 603 N.W.2d 869. The party seeking relief has the burden to affirmatively establish an abuse of discretion. Braunberger v. Interstate Engineering, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904.

[¶ 9] Rule 59(b)(7), N.D.R.Civ.P., permits a new trial when errors in law occur at trial and are excepted to, "when required." The error must be "patent, obvious, or evident from the record," Merrill Iron & Steel, Inc. v. Minn-Dak Seeds, Ltd., 334 N.W.2d 652, 655 (N.D.1983), and must "materially affect[] the substantial rights of a party." Schaefer v. Souris River Telecommunications Co-op., 2000 ND 187, ¶ 14, 618 N.W.2d 175; N.D.R.Civ.P. 61. Rule 49(a), N.D.R.Civ. P., requires a court to "give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue." Under N.D.R.Civ.P. 51(c), however, to preserve for appellate review an alleged error regarding instructions to the jury, counsel "has the burden of objecting not only to parts included in the proposed instructions but also to omissions in the proposed instructions." Leingang v. George, 1999 ND 32, ¶ 16, 589 N.W.2d 585. Because the Sollins neither requested an instruction on how the comparative fault answers would affect the award of damages, nor objected to its omission, the issue is whether the trial court's failure to instruct the jury, upon the jury's questioning, was error materially affecting the Sollins' substantial rights.

A

[¶ 10] North Dakota's former comparative negligence statute, N.D.C.C. § 9-10-07, allowed a jury to be informed of how comparative fault answers would affect an award of damages by providing "[u]pon the request of any party, this section shall be read by the court to the jury and the attorneys representing the parties may comment to the jury regarding this section." This provision was added to the former statute when it was enacted in 1973 "so the jury knows what has happened." Hearing on H.B. 1509 Before the Senate Judiciary Committee, 43rd N.D. Legis. Sess. (February 27, 1973) (testimony of Al Wolf). When N.D.C.C. § 9-10-07 was effectively repealed in 1987, see 1987 N.D. Sess. Laws ch. 404, § 15; 1993 N.D. Sess. Laws ch. 324, § 1, and replaced with the new modified comparative fault law codified at N.D.C.C. § 32-03.2-02, the provision allowing, upon request, the court to inform the jury and the attorneys to comment to the jury about the law was omitted from the new legislation. The legislative history is silent on the reason for its omission from N.D.C.C. § 32-03.2-02.

[¶ 11] The current North Dakota Pattern Jury Instructions contain a special verdict form, N.D.J.I.—Civil C-90.56, which parenthetically states "[t]he Court may wish to include an instruction here concerning the effect of the allocation of fault in a particular case and whether, depending upon that allocation, the Jury should answer the damages questions." The pattern jury instructions are published by the State Bar Association of North Dakota in conjunction with the North Dakota Pattern Jury Instruction Commission and caution users the instructions are "neither a restatement nor an encyclopedia of the prevailing law." Counsel for the Sollins requested N.D.J.I.—Civil C-90.56, and submitted a special verdict form based on it, but did not include an instruction based upon the bracketed language regarding the court's discretion to instruct the jury on the effect of the allocation of fault on damages.

[¶ 12] This Court has not addressed whether a jury should be told how its liability apportionment will affect an award of damages since the statutory authority to do so was repealed in 1987. Before N.D.C.C. § 9-10-07 was enacted in 1973, this Court held it was reversible error for counsel to comment on, or the trial court to advise the jury about, the ultimate result and legal effect of special verdict findings. See Ferderer v. Northern Pacific Railway Co., 77 N.D. 169, 185, 42 N.W.2d 216, 225 (1950)

; Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 735, 204 N.W. 614, 619 (1925); Reichert v. Northern Pacific Railway Co., 39 N.D. 114, 147, 167 N.W. 127, 138 (1917); Morrison v. Lee, 13 N.D. 591, 599, 102 N.W. 223, 225 (1904). The rationale for this position was explained in Morrison, 13 N.D. at 599, 102 N.W. at 225:

The object of the law is to secure fair and impartial answers to the questions submitted, "free from bias or prejudice in favor of either party or in favor of

...