United Tool Rental Inc. v. Riverside Contracting Inc.

• Decision Date: 30 August 2011
• Docket Number: No. DA 10–0508.,DA 10–0508.
• Citation: 2011 MT 213,260 P.3d 156,361 Mont. 493
• Court: Montana Supreme Court
• Parties: UNITED TOOL RENTAL, INC. and DeLyle Lynn Paulsen, Plaintiffs and Appellants,v.RIVERSIDE CONTRACTING, INC., a Montana corporation; United Rental Highway Technologies, Inc., n/k/a Highway Technologies, Inc., a Massachusetts corporation; The State of Montana, Montana Department of Transportation; and Carter & Burgess, Inc., a Texas corporation, Defendants and Appellees.

361 Mont. 493

260 P.3d 156

2011 MT 213

UNITED TOOL RENTAL, INC. and DeLyle Lynn Paulsen, Plaintiffs and Appellants,

v.RIVERSIDE CONTRACTING, INC., a Montana corporation; United Rental Highway Technologies, Inc., n/k/a Highway Technologies, Inc., a Massachusetts corporation; The State of Montana, Montana Department of Transportation; and Carter & Burgess, Inc., a Texas corporation, Defendants and Appellees.

No. DA 10–0508.

Supreme Court of Montana.

Submitted on Briefs July 20, 2011.Decided Aug. 30, 2011.

For Appellants: Brian L. Taylor, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, Montana.For Appellees: Tyson R. O'Connell, Peter J. Stokstad; Garlington, Lohn & Robinson, PLLP, Missoula, Montana (Riverside Contracting, Inc.), Lon J. Dale, Philip B. Condra, Giovanna M. McLaughlin; Milodragovich, Dale, Steinbrenner & Nygren, P.C., Missoula, Montana (Highway Technologies, Inc.), Mark S. Williams, Nicholas J. Pagnotta; Williams Law Firm, P.C., Missoula, Montana (Montana Department of Transportation), Steven Hamilton, Hall & Evans, L.L.C., Denver, Colorado (Carter & Burgess).Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[361 Mont. 494] ¶ 1 Following an automobile crash for which United Tool Rental, Inc. (UTR), and DeLyle Paulsen (Paulsen) admitted negligence, UTR and Paulsen sought contribution from the State of Montana Department of Transportation (DOT), Riverside Contracting, Inc. (Riverside), Highway Technologies, Inc. (Highway Technologies), and Carter & Burgess, Inc. (Carter & Burgess) (collectively “Construction Parties”). A jury in the Twentieth Judicial District Court, Lake County, determined UTR and Paulsen were entirely at fault for the crash and rejected their contribution claim. UTR and Paulsen appeal the following issues, which we have restated.

¶ 2 Issue One: Whether the District Court erred in excluding a post-crash memorandum prepared by the Montana Highway Patrol and evidence the DOT erected a “no left turn” sign after the crash.

¶ 3 Issue Two: Whether the District Court erred in allowing (1) cross-examination of Paulsen regarding his chewing tobacco use; (2) the use of Paulsen's deposition during cross-examination of Paulsen; (3) references by counsel for the Construction Parties regarding their connections to Montana; and (4) inflammatory remarks by counsel for the DOT during closing argument.

¶ 4 Issue Three: Whether the jury's verdict is insufficient and a new trial is warranted.

BACKGROUND

¶ 5 On July 13, 2007, Paulsen, an employee of UTR, was driving a work truck southbound through a construction zone on Highway 93. Ahead of Paulsen, a minivan and two other vehicles were stopped at the intersection of Highway 93 and Old Highway 93, while the lead vehicle attempted to make a left-hand turn onto Old Highway 93. Paulsen rear-ended the minivan and then veered into the northbound lane and collided with a vehicle driven by Ann Marie Matt (Matt).

¶ 6 In the months leading up to the crash, construction barricades had been placed at the intersection of Old Highway 93 and Highway 93 to prevent vehicles from negotiating left-hand turns from southbound Highway 93 onto Old Highway 93. The barricades were removed on or around June 11, 2007. Four days after the crash, the DOT replaced the construction barricades at the intersection, citing concerns from the Montana Highway Patrol (MHP) and an increase in summer traffic.

¶ 7 Six days after the crash, Trooper Michael Gehl, the investigating MHP officer, authored a memorandum regarding his concerns about Highway 93. Trooper Gehl expressed concern that (1) the grade of the roadway created a substantial blind spot for motorists; (2) the limited area of roadway between guardrails prevented vehicles from avoiding collision; (3) the location of the Old Highway 93 intersection posed an imminent hazard; and (4) insufficient signage existed indicating the presence of a construction zone and a “no left turn” sign was necessary. A short time later, the DOT erected a “no left turn” sign at the intersection of Old Highway 93 and Highway 93.

¶ 8 Matt sued UTR and Paulsen to recover damages for the injuries she sustained in the crash. UTR and Paulsen then sued the Construction Parties for contribution, alleging their negligent design, construction, and maintenance of Highway 93 contributed to the crash.¹ UTR and Paulsen settled with Matt and proceeded to trial against the Construction Parties in August 2010. The matter was submitted to the jury after six days of trial. The jury returned with its verdict, finding UTR and Paulsen were one hundred percent at fault for the crash.

¶ 9 UTR and Paulsen appeal.

STANDARD OF REVIEW

¶ 10 A district court has broad discretion in determining the admissibility of evidence. Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561. This Court will not overturn a district court's evidentiary ruling unless the district court abused its discretion. Seltzer, ¶ 65. A district court commits an abuse of discretion when it “ ‘act[s] arbitrarily without conscientious judgment or exceed[s] the bounds of reason.’ ” Seltzer, ¶ 65 (quoting Lopez v. Josephson, 2001 MT 133, ¶ 14, 305 Mont. 446, 30 P.3d 326). If this Court determines that a district court abused its discretion, we must next determine whether the abuse of discretion constitutes reversible error. Seltzer, ¶ 65. “[N]o reversible error occurs unless a substantial right of the appellant is [a]ffected, nor does reversible error occur unless the evidence in question was of such character as to have affected the outcome of the trial.” Seltzer, ¶ 65. We also review discretionary trial rulings for an abuse of discretion. State v. Duncan, 2008 MT 148, ¶ 37, 343 Mont. 220, 183 P.3d 111.

DISCUSSION

¶ 11 Issue One: Whether the District Court erred in excluding a post-crash memorandum prepared by the Montana Highway Patrol and evidence the DOT erected a “no left turn” sign after the crash.

¶ 12 The Construction Parties filed motions in limine to exclude Trooper Gehl's memorandum and his opinions expressed therein and evidence the DOT replaced the barricades and erected a “no left turn” sign after the crash, which the District Court granted in part and denied in part. The District Court concluded evidence that the barricades were re-erected and Trooper Gehl's testimony regarding his concerns about Highway 93 were admissible. The District Court excluded the memorandum from evidence, as well as any testimony from Trooper Gehl related to the subsequent remedial measures he recommended the DOT take, and excluded the DOT's post-crash placement of the “ no left turn” sign.

¶ 13 On appeal, UTR and Paulsen argue the District Court abused its discretion in excluding the memorandum and evidence of the “no left turn” sign because they are admissible for impeaching the testimony of the Construction Parties' witnesses regarding the dangerousness of the intersection where the crash occurred—an exception to Montana Rule of Evidence 407's (Rule 407) bar against subsequent remedial measures. Specifically, UTR and Paulsen argue the placement of the “no left turn” sign impeaches any testimony from the Construction Parties' witnesses that the intersection was not dangerous. In addition, UTR and Paulsen assert counsel for Highway Technologies “opened the door” for the introduction of the memorandum during cross-examination of Trooper Gehl.

“No Left Turn” Sign

¶ 14 Evidence of subsequent remedial measures is not admissible to prove negligence. M.R. Evid. 407. The rationale behind Rule 407 “encourage[s] remedial measures by freeing the defendant from concern that such steps might be used against him [or her] as an admission by conduct.” Johnson v. State, 224 Ariz. 554, 233 P.3d 1133, 1135 (2010) (internal quotations omitted). Although not admissible for proving negligence, evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment. M.R. Evid. 407.

¶ 15 Courts in other jurisdictions have narrowly applied the impeachment exception, noting that “evidence of subsequent remedial measures ... is not admissible for impeachment where the sole value of the impeachment rests on [the] same impermissible inference of prior negligence.” Herzog v. Lexington Township, 167 Ill.2d 288, 212 Ill.Dec. 581, 657 N.E.2d 926, 933 (1995). As the Herzog court explained:

Allowing such evidence in these circumstances would swallow the general rule prohibiting the introduction of subsequent remedial measures and frustrate the policy considerations that support it. In every case, a defendant will dispute that his [or her] prior conduct was negligent. Once a defendant disputes his or her negligence at trial, a plaintiff could always seek to introduce evidence of subsequent remedial measures under the guise of impeachment.... Furthermore, contrary to the policies supporting the general rule, parties to lawsuits would be discouraged from making improvements for fear that such actions would be used against them at trial.

Herzog, 212 Ill.Dec. 581, 657 N.E.2d at 933. Accordingly, subsequent remedial measures are admissible for impeachment purposes “where the defendant goes beyond stating that the original condition was safe or adequate [ ] and attempts to make exaggerated claims that the condition was the safest possible....” Herzog, 212 Ill.Dec. 581, 657 N.E.2d at 933 (internal quotations omitted). To admit “such evidence when it does not directly impeach a witness's testimony or other evidence offered by a defendant contravenes the general rule that such evidence is inadmissible to prove negligence.” Johnson, 233 P.3d at 1138.

¶ 16 This Court has not directly addressed the breadth of the impeachment exception to Rule 407. However, a review of our subsequent remedial measures jurisprudence supports a narrow interpretation of the impeachment exception as adopted by the Herzog and Johnson courts. UTR and Paulsen correctly point out this Court allowed evidence of...