Swiontek v. Ryder Truck Rental, Inc.

• Decision Date: 06 December 1988
• Docket Number: No. 880162,880162
• Citation: 432 N.W.2d 893
• Parties: Richard SWIONTEK and Alice Swiontek, Plaintiffs and Appellees, v. RYDER TRUCK RENTAL, INC., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 893

432 N.W.2d 893

Richard SWIONTEK and Alice Swiontek, Plaintiffs and Appellees, v. RYDER TRUCK RENTAL, INC., Defendant and Appellant.

Civ. No. 880162.

Supreme Court of North Dakota.

Dec. 6, 1988.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellant; argued by W. Todd Haggart, Fargo.

Dosland, Dosland, Nordhougen, Lillehaug & Johnson, PA, Moorhead, Minn., for plaintiffs and appellees; argued by J.P. Dosland, Moorhead, Minn.

GIERKE, Justice.

This is an appeal by the defendant, Ryder Truck Rental, Inc. (Ryder), from a district court judgment dated April 14, 1988, entered in accordance with the special jury verdict which found Ryder negligently liable to the plaintiff, Richard Swiontek (Swiontek). We affirm.

Ryder leased to Wil-Rich, Inc., an agricultural equipment manufacturer, several semi truck tractors for use in hauling trailers. Pursuant to the lease agreement with Wil-Rich, Inc., Ryder was required to perform repair and maintenance services on the tractors.

Swiontek was assigned by his employer, Wil-Rich, Inc., to drive one of the leased tractors from Ryder. The particular tractor assigned to Swiontek had problems with the fifth wheel, a device utilized to attach and detach the trailer. ¹ Part of Swiontek's duties included unhooking the trailer from the tractor by activating a lever on the fifth wheel. The lever on the fifth wheel of this particular tractor stuck and was extremely difficult to operate and required a great deal of force to activate. Several complaints were made to Ryder regarding the condition of the fifth wheel including that it should be replaced. Ryder attempted to remedy the problem by steam cleaning the fifth wheel which only resulted in it working properly for short periods of time.

On April 12, 1986, Swiontek was injured while attempting to disconnect a trailer from the tractor by activating the lever on the fifth wheel. Swiontek filed suit claiming that his injury was a proximate result of Ryder's negligence or breach of warranty or an unreasonable dangerous defect in the fifth wheel of the tractor owned by Ryder. Ryder in its answer denied liability and alleged that Swiontek was negligent, that he assumed the risk of injury and that he misused the tractor, and should be barred from recovering.

A jury trial was held on April 4, 1988. During trial, Ryder offered into evidence a portion of a videotape demonstrating the operation of the fifth wheel along with some explanatory testimony of Andrew Schaefer. Swiontek objected to the evidence on the ground of lack of foundation arguing that the conditions of the videotaped demonstration were not identical to conditions at the time of the accident. ² The trial court sustained the objection on foundational grounds. The jury returned a special verdict finding Ryder liable to Swiontek on the theory of negligence. The district court entered judgment against Ryder on April 14, 1988. Ryder filed this appeal on May 23, 1988.

There are two issues to be resolved. The first issue is whether or not an evidentiary ruling by the trial court is reviewable on appeal from a judgment when no motion for a new trial has been made.

Initially, we note that a party challenging an evidentiary ruling such as this is not required to make a motion for a new trial prior to taking an appeal from the judgment. However, if a party makes a motion for a new trial that party is restricted on appeal to those issues raised in the motion for a new trial. Nelson v. Trinity Medical Center, 419 N.W.2d 886, 889 (N.D.1988); Andrews v. O'Hearn, 387 N.W.2d 716, 729 (N.D.1986). We also note that while an evidentiary ruling by the trial court is not immediately appealable, it may be reviewed on appeal from a final judgment if the issue has been preserved in the record. See Allen v. White Drug of Minot, Inc., 346 N.W.2d 279, 282 (N.D.1984); Danks v. Holland, 246 N.W.2d 86, 88 (N.D.1976). Accordingly, we believe that the evidentiary issue raised by Ryder in this appeal is reviewable.

The second issue which we must address is whether or not the trial court erred in refusing to admit into evidence a portion of a videotape demonstrating the use of the fifth wheel and certain testimony offered in connection with the videotape. ³

Ryder argues that the trial court erred in excluding the evidence because a proper foundation was laid for admission of the videotape evidence by establishing substantial similarity between the conditions at the time of the accident and the time of the demonstration. ⁴

We set forth in Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer, Co., 338 N.W.2d 64, 66 (N.D.1983), this Court's standard of review of the trial court's exclusion of evidence on foundational grounds as follows:

"[W]hether or not an exhibit should have been excluded on the basis that it lacked adequate foundation is primarily within the sound discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing that it affected the substantial rights of the parties."

Thus, the trial court's decision to exclude evidence on the basis that it lacks adequate foundation lies within the sound discretion of the trial court and will not be disturbed on appeal unless there was an abuse of discretion which affected substantial rights of the parties. Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer, Co., supra; see also Williams County Social Services Bd v. Falcon, 367 N.W.2d 170, 177 (N.D.1985); Larson v. Meyer, 161 N.W.2d 165, 168 (N.D.1968).

We note that the videotape evidence was being offered by Ryder to show the normal and proper operation of the fifth wheel. We also note that...