Zahn v. Musick

• Decision Date: 16 February 2000
• Docket Number: No. 20985, No. 20988.
• Citation: 2000 SD 26,605 N.W.2d 823
• Parties: Wendy S. ZAHN, Plaintiff and Appellant, and Daryl C. Zahn Plaintiff, v. Roy J. MUSICK, Defendant and Appellee.
• Court: South Dakota Supreme Court

605 N.W.2d 823

2000 SD 26

Wendy S. ZAHN, Plaintiff and Appellant, and Daryl C. Zahn Plaintiff, v. Roy J. MUSICK, Defendant and Appellee.

Nos. 20985, 20988.

Supreme Court of South Dakota.

Considered on Briefs January 10, 2000.

Decided February 16, 2000.

Charles Poches, Jr. of Poches and Lee, Fort Pierre, for plaintiff and appellant.

Larry M. Von Wald of Truhe, Beardsley, Jensen, Helmers and Von Wald, Rapid City, for defendant and appellee.

SABERS, Justice.

[¶ 1.] Roy Musick admitted liability in a personal injury action brought by Wendy Zahn. A jury awarded Zahn $3,000 in damages. She made a motion for a new trial based on admissions and inadequacy of the award, which was denied. The trial court granted both parties' application for taxation of costs. Zahn appeals and Musick files a notice of review. We affirm in all respects, except for the taxation of the disbursement for an "investigative videotape" against Zahn, which we reverse.

FACTS

[¶ 2.] On June 6, 1996, Musick was driving a tractor in the right-side lane of two westbound lanes while pulling a haystack mover. Zahn, also traveling westbound, was driving her car in the left lane. Zahn was attempting to pass the haystack mover on a bridge when the mover struck the right side of the bridge. The impact caused the mover to separate from the tractor and collide with Zahn's car. Several teeth on the haystack mover penetrated Zahn's car, shattered most of the windows and pinned the car against a concrete divider. [¶ 3.] Stanley County Highway Superintendent Arlen Bouchie came upon the accident scene. He testified that the interior of the car was filled with glass. The doors to the car could not be opened and the driver's side window would not roll down. Bouchie helped Zahn out of her car through the rear window. Zahn was wearing shorts with nylons and was covered with glass fragments. Even though Bouchie saw no visible injuries requiring medical assistance, he asked Zahn whether she wanted to go to the emergency room. Zahn replied that it was not necessary. Bouchie gave Zahn a ride to Rushmore Nursing, where she was employed.

[¶ 4.] After arriving at work, Zahn's co-workers convinced her to go to a medical clinic to be examined. She saw a physician's assistant at the clinic who applied a steri-strip to a cut on her hand and told her to go home and shower to wash off any bits of glass that may be on her skin. She was not hospitalized for any injury resulting from the accident.

[¶ 5.] Five days after the accident, Zahn was examined by her family physician, Dr. Bartholomew. He took some x-rays and noted some contusions, but did not recommend any treatment. She also saw Dr. Keller, a chiropractor, for five treatments during July and August.

[¶ 6.] On July 26, 1996, Zahn went to Dr. Eisnach, an optometrist, because she began experiencing "floaters" in her vision. After Dr. Eisnach rendered the diagnosis, Zahn went to a second optometrist who also diagnosed her with "floaters." She was then referred to Dr. Abraham, an ophthalmologist, who determined she had a mild case of vitreous floaters¹ that was not caused by the accident. Dr. Abraham concluded that treatment was not necessary.

[¶ 7.] In December of 1996, Zahn saw Dr. Stout. Dr. Stout found nothing objectively wrong with her and referred her to Dr. Payne, a neurologist. Dr. Payne conducted several tests and was unable to find any neurological problems. He did not prescribe any treatment. After her appointment with Dr. Payne in January of 1997, Zahn did not see another medical doctor until July of 1998.

[¶ 8.] On April 4, 1997, a summons and complaint were served on Musick. The complaint alleged that:

As a result of such collision, plaintiff suffered severe and permanent injuries to both eyes, her back, head, arms and fingers. Plaintiff has suffered serious mental anguish and physical pain and will continue to suffer such in the future, including, but not limited to, glass imbedded in her body; aches of the head, neck, back, arms and fingers which include numbness; partial loss of eyesight in both eyes; and other injuries.

Zahn's husband at the time of the accident also sued Musick for loss of consortium.

[¶ 9.] In his amended answer, Musick admitted that he was liable for causing the accident. Therefore, the only issue in dispute was damages. Musick made two separate offers of judgment before trial. On March 26, 1998, he offered $6,000, but Zahn rejected the offer. On December 31, 1998, he served Zahn with a second offer of judgment for $10,000. Zahn also rejected this offer.

[¶ 10.] During the trial on January 20-21, 1999, several inconsistencies in Zahn's claimed injuries surfaced.

[¶ 11.] First, Zahn testified that she did not have any problems with her neck, arms or fingers prior to the accident. However, on cross-examination, she admitted that she had been seen at a medical clinic just two months before the accident for stiffness and discomfort in the joints of her fingers, wrists, elbows and knees. During this appointment, she underwent testing to determine whether she suffered from rheumatoid arthritis, but the test results were negative. Zahn testified that the doctor suggested that she has a thyroid problem, but no treatment was administered.

[¶ 12.] Second, Zahn testified that she had never experienced any neck pain prior to the accident. On cross-examination, she admitted that she saw Dr. Keller, a chiropractor, in March of 1996 for neck pain she experienced after lifting a railroad tie.

[¶ 13.] Third, Zahn testified at trial that she may have struck her head or lost consciousness. However, during her deposition, she testified that she did not lose consciousness. Medical records also provide that Zahn told Dr. Abraham that she did not hit her head in the accident.

[¶ 14.] Fourth, Zahn testified that the accident had caused "floaters" in her eyes resulting in a disruption in her eyesight. She specifically stated that she did not experience these "floaters" before the accident. On cross-examination, she admitted that she had been diagnosed with "floaters" in her left eye approximately one year before the accident. Dr. Abraham, a vitreoretinal surgeon with the Black Hills Regional Eye Institute, also testified by deposition that Zahn had a mild to moderate case of vitreous condensation and floaters which was not caused by the accident. No treatment was recommended.

[¶ 15.] Fifth, Zahn claimed that two fingers on her right hand are continuously numb and a third one is occasionally numb all as a result of the accident. She admitted on cross-examination that Dr. Payne was unable to confirm that she had any numbness in these three fingers.

[¶ 16.] Sixth, at the time of the accident, Zahn was working at least 40 hours at Rushmore Nursing. She continued to work after the accident in assisting primarily elderly and disabled patients at their homes with bathing, taking medications, changing clothing, and light housework. She also continued to work 15 hours per week at the Fort Pierre Livestock Auction. At trial, she testified that she sought the wages she lost when she had to obtain medical care for the injuries she sustained in the accident. However, in her deposition, she testified that she sought no claim for lost wages.

[¶ 17.] Finally, Zahn complained that due to the accident she is in constant discomfort and is unable to lift her arm up over her head. Despite the alleged injuries, Zahn played softball during the summer of 1996 and every summer thereafter. During trial, she acknowledged that a videotape was made of her playing a double-header in softball. She admitted that the video showed her batting and getting hits, running the bases at full speed, running after fly balls, and throwing the ball from the outfield. Likewise, she admitted that she played volleyball during the winters after the accident. During volleyball, she would set the ball, serve, dive and dig for the ball. She also enjoyed dancing on occasion after the softball games and rode her bicycle regularly. She even water skied once, but claimed it hurt her shoulder so she quit. Some of these post-accident activities would be difficult to perform if she could not lift her arm over her head.

[¶ 18.] At the time of the accident, Zahn had been married to Daryl Zahn, for the second time, for three years. They divorced, for the second time, approximately a year and a half after the accident. Daryl testified that after the accident, Zahn's disposition changed from a happy person to an irritable one, she wanted to be alone more often, she appeared disinterested in him and she wasn't able to contribute to the family as she did before the accident. Zahn and Daryl both claim that the accident was the sole cause of the deterioration of their second marriage.² After not talking to him for approximately one month, Daryl asked Zahn and her children to leave, gave her some money for the divorce and went elk hunting. They never sought marriage counseling or tried to reconcile.

[¶ 19.] During closing argument, Zahn asked the jury to award her $157,000 in damages and $7,000 to Daryl for his loss of consortium claim. After alerting the jury to all the inconsistencies in Zahn's testimony, Musick asked the jury to return a verdict for $2,977.25.

[¶ 20.] The jury returned a general verdict form awarding Zahn $3,000 in damages and zero to Daryl. After the trial, Zahn made a motion for a new trial, which was denied. Musick and Zahn each filed an application for taxation of costs. The trial court granted Musick's application because the jury verdict was "not more favorable" than Musick's offer of judgment. See SDCL 15-6-68. The trial court also granted Zahn's application because Musick failed to submit timely written objections to Zahn's application. See 15-6-54(d).

[¶ 21.] Zahn appeals raising the first five issues. Musick raises the sixth issue by notice of review.

[¶ 22.] 1. WHETHER JUDICIAL ADMISSIONS OF LIABILITY FOR SOME...