IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 32274
MARIA E. GARCIA, )
)
Plaintiff-Appellant, ) Boise, March 2007 Term
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v. ) 2007 Opinion No. 102
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JAY WINDLEY, an individual, ) Filed: July 31, 2007
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Defendant-Respondent. ) Stephen W. Kenyon, Clerk
)
)
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Gooding County. Honorable Monte Basil Carlson, District Judge.
District court order denying summary judgment, review declined. Jury instruction
on proximate cause, reversed and remanded.
Hutchinson & Brown, LLP, Chtd., Twin Falls, for appellant. Patrick David
Brown argued.
Brassey, Wetherell, Crawford & Garrett, Boise, for respondent. Robert Thomas
Wetherell argued.
__________________________________
BURDICK, Justice
Appellant Maria Garcia appeals a denial of summary judgment and the use of an alleged
erroneous jury instruction given on proximate cause. We decline to review the denial of
summary judgment and hold that the proximate cause jury instruction was erroneous. We
reverse and remand to the district court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 24, 2001, a car accident occurred between Appellant Maria Garcia and
Respondent Jay Windley in which Windley’s vehicle struck Garcia’s vehicle from behind.
Garcia filed a personal injury suit against Windley. Garcia moved for partial summary judgment
on several issues including Windley’s affirmative defense of mitigation. The district court
granted Garcia’s motion in part; however, it denied summary judgment on the issue of
mitigation.
1
The first trial began in April 2004 but ended in a mistrial after a witness referred to
insurance in the presence of the jury. After a second trial, the jury found that Windley was
negligent, that Windley’s negligence was the proximate cause of Garcia’s injuries, and that
Garcia failed to minimize her damages.
In trial, Garcia argued that before the accident Garcia had spondylolysis (a weak or
fractured pedicle on the back of her vertebra) making her susceptible to injury, that this is a
benign condition unless something causes traumatic injury, and that the collision caused a
teardrop fracture in Garcia’s vertebra and traumatic spondylolisthesis (one vertebra actually
slipping on top of the other). Windley argued the accident only caused a lumbar strain and that
the teardrop fracture and spondylolisthesis preexisted the accident. The jury awarded Garcia
$11,838.45 in damages.
Garcia moved for a new trial on several grounds including the causation instruction and
the denial of summary judgment on the issue of mitigation. The district court denied the motion
for a new trial and held the causation instruction was not erroneous, did not mislead the jury, and
that even if it were misleading there was no prejudice since the jury found Windley’s negligence
to be the proximate cause of Garcia’s damages. The district court also held that it properly
denied Garcia’s motion for summary judgment on the issue of mitigation. The district court then
awarded Windley costs pursuant to I.R.C.P. 68, which left Garcia with an award of $4,218.43.
II. ANALYSIS
Garcia argues that the district court erred when it denied summary judgment on the issue
of mitigation, and that in this case, the Court should find an exception to the general rule that
denials of summary judgment are interlocutory orders. Garcia also argues that the jury
instruction on proximate cause was erroneous and prejudiced Garcia in this case. Finally, both
parties argue that they are entitled to attorney fees on appeal. We will address each issue in turn.
A. Mitigation
Garcia argues that we should review the denial of summary judgment because when the
district court erroneously denied summary judgment on the issue of mitigation, it did so based on
a legal misconception. Windley argues that the denial of summary judgment is not appealable
and that we should not make an exception to the general rule in this case.
It is well settled in Idaho that “[a]n order denying a motion for summary judgment is an
interlocutory order from which no direct appeal may be taken.” Dominguez ex rel. Hamp v.
2
Evergreen Res., Inc., 142 Idaho 7, 13, 121 P.2d 938, 944 (2005) (citation omitted). This rule is
not altered by the entry of an appealable final judgment. Id.
Garcia urges this Court to adopt an exception to the general rule, identical to the
exception recognized in Arizona, 1 that when a denial of summary judgment is “made strictly on
a point of law, and that because of such ruling the losing party thereafter was precluded from
offering evidence or urging the point at the time of trial . . .” the court may review the denial of
summary judgment. Fleitz v. Van Westrienen, 560 P.2d 430, 433 (Ariz. Ct. App. 1977) (internal
quotations and citation omitted); see also, e.g., John C. Lincoln Hosp. & Health Corp. v.
Maricopa County, 96 P.3d 530, 537 n.5 (Ariz. Ct. App. 2004).
We decline to adopt such an exception because it would violate the policy behind treating
orders denying summary judgment as interlocutory. We have recognized the rationale for the
rule that an order denying summary judgment not be reviewed on appeal from a final judgment
as follows:
[B]y entering an order denying summary judgment, the trial court merely
indicates that the matter should proceed to trial on its merits. The final judgment
in a case can be tested upon the record made at trial, not the record made at the
time summary judgment was denied. Any legal rulings made by the trial court
affecting that final judgment can be reviewed at that time in light of the full
record. This will prevent a litigant who loses a case, after a full and fair trial,
from having an appellate court go back to the time when the litigant had moved
for summary judgment to view the relative strengths and weaknesses of the
litigants at that earlier stage. Were we to hold otherwise, one who had sustained
his position after a fair hearing of the whole case might nevertheless lose, because
he had failed to prove his case fully on the interlocutory motion.
Miller v. Estate of Prater, 141 Idaho 208, 211, 108 P.3d 355, 358 (2005) (quoting Gunter v.
Murphy’s Lounge, LLC, 141 Idaho 16, 26, 105 P.3d 676, 686 (2005) (quoting Keeler v. Keeler,
124 Idaho 407, 410, 860 P.2d 23, 26 (Ct. App. 1993) (emphasis added).
Garcia is not appealing the overruling of any objections to the mitigation evidence
presented at trial; Garcia is only appealing the denial of summary judgment. A final judgment
has been entered in this case and that judgment can and should be tested upon the record made at
1
Garcia also argues that Alaska has adopted a similar exception. However, Ondrusek v. Murphy, 120 P.3d 1053
(Alaska 2005), shows that Alaska actually has the opposite policy. Instead of the general rule that the denial of
summary judgment is not appealable, Alaska “has reviewed summary judgment denials.” Ondrusek, 120 P.3d at
1056 n.2. The Supreme Court of Alaska has noted, though, that when a case has been resolved by a trial on the
merits, it would consider limiting its review of summary judgment denials to those based on questions of law. Id.;
accord Pederson v. Barnes, 139 P.3d 552, 556 n.4 (Alaska 2006).
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trial, not the record existing at the moment in time summary judgment was denied. Thus,
because Idaho appellate courts do not review a denial of summary judgment, we decline to
review the district court’s denial of summary judgment on the issue of mitigation.
B. Jury Instruction
The Court’s review of jury instructions is “limited to a determination of whether the
instructions, as a whole, fairly and adequately present the issues and state the law.” Newberry v.
Martens, 142 Idaho 284, 287, 127 P.3d 187, 190 (2005) (internal quotations and citations
omitted). “When the instructions, as a whole, do not mislead or prejudice a party, an erroneous
instruction does not constitute reversible error.” Id. (internal quotations and citations omitted.)
The appellant has the burden to clearly show prejudicial error from an erroneous jury instruction.
Clark v. Klein, 137 Idaho 154, 159, 45 P.3d 810, 815 (2002). An erroneous instruction is
prejudicial when it could have affected or did affect the outcome of the trial. Burgess v. Salmon
River Canal Co. Ltd., 119 Idaho 299, 306, 805 P.2d 1223, 1230 (1991).
Garcia argues that the proximate cause jury instruction was erroneous and prejudicial
because this was a multiple cause case and thus a “substantial factor” jury instruction should
have been used rather than a “but for” jury instruction. Windley argues that this is not a multiple
cause case and that even if it were a “substantial factor” instruction would not have been
appropriate. Finally, Windley argues that even if the instruction were erroneous Garcia was not
prejudiced. We analyze each issue below.
Instruction No. 15, the proximate cause jury instruction stated:
When I use the expression “proximate cause,” I mean a cause which, in
natural or probable sequence, produced the complained injury, loss or damage,
and but for that cause the damage would not have occurred. It need not be the
only cause. It is sufficient if it is a substantial factor in bringing about the injury,
loss or damage. It is not a proximate cause if the injury, loss or damage likely
would have occurred anyway.
There may be one or more proximate causes of an injury. When the
negligent conduct of two or more persons or entities contribute concurrently as
substantial factors in bringing about an injury, the conduct of each may be a
proximate cause of the injury regardless of the extent to which each contributes to
the injury.
(Emphasis added).
In Idaho, the “but for” test may be employed when there is a single possible cause of the
injury; however, the “substantial factor” test must be employed when there are multiple possible
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causes of injury, and the jury must be instructed accordingly. Newberry, 142 Idaho at 288, 127
P.3d at 191. “The ‘but for’ instruction and the ‘substantial factor’ instruction are mutually
exclusive.” Id. (quoting Le’Gall v. Lewis County, 129 Idaho 182, 187, 923 P.2d 427, 432 (1996)
(internal quotations omitted)).
The jury instruction at issue here is identical to the jury instruction used for the proximate
cause “but for” test. IDJI 2.30.1. 2 The first paragraph of the instruction used in this case is also
identical to the jury instruction we reviewed in Fussell v. St. Clair, 120 Idaho 591, 818 P.2d 295
(1991).
In Fussell, the plaintiffs argued that a doctor committed medical malpractice resulting in
the brain damage and death of their child. The Fussells asserted the doctor was negligent in that
he: (1) artificially ruptured Mrs. Fussell’s fetal membranes during delivery when the child was
too high, thereby causing a prolapsed umbilical cord; and (2) mismanaged the delivery when the
prolapsed umbilical cord was discovered. Fussell, 120 Idaho at 592, 818 P.2d at 296. The
doctor submitted evidence to show that there was a nonnegligent cause for the child’s brain
damage and death for which he was not responsible—an occult (hidden) prolapsed umbilical
cord. Id. at 593, 818 P.2d at 297. We held the Fussell jury instruction was erroneous as the jury
could have concluded that the doctor’s negligence was not a proximate cause because the brain
damage and death of the child “would likely have occurred anyway.” Id. We also noted that it
was not appropriate for the trial court to use the bracketed portion of IDJI 2.30 referring to one or
more proximate causes due to multiple negligent actors because neither party alleged any person
other than the doctor was negligent. Id. at 593-94, 818 P.2d at 297-98.
In Fussell, we concluded that because the evidence presented by the defense would have
permitted a jury finding that two forces or causes caused the damage, the substantial factor
instruction should read:
When I use the expression “proximate cause,” I mean a cause which, in
natural or probable sequence, produced the damage complained of. It need not be
the only cause. It is sufficient if it is a substantial factor concurring with some
other cause acting at the same time, which in combination with it, causes the
damage.
2
Note that in the Idaho Jury Instructions, the second paragraph is bracketed, indicating that it may be used in
appropriate cases.
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Id. at 595, 818 P.2d at 299. The suggested instruction omits any mention of “but for” and also
omits the portion instructing that it is not a proximate cause if the damage “likely would have
occurred anyway.”
This Court recently reaffirmed its position in Newberry v. Martens, 142 Idaho 284, 127
P.3d 187 (2005). In that case, the trial court used the suggested substantial factor instruction
found in Fussell. 3 Id. at 287, 127 P.3d at 190. There, Newberry argued the loss of vision in his
right eye was due to his doctor’s negligence in failing to locate the metal shard in his eye and in
failing to refer Newberry to a specialist. Id. at 288, 127 P.3d at 191. The doctor argued that the
loss was caused by the presence of bacteria which had been introduced to the eye with the metal
shard. Id. The doctor in Newberry contended that the trial court should have used a “but for”
instruction instead of a “substantial factor” instruction because there was only one allegedly
negligent cause of injury. Id. However, we held that the district court correctly determined that
it was a multiple cause case since the plaintiff argued the doctor’s negligence caused the injury
and the defendant doctor argued the presence of bacteria caused the injury. Id. We rejected the
doctor’s arguments that the Fussell rule only applies when there are multiple defendants and
multiple potential acts of negligence. Id. at 289-90, 127 P.3d at 192-93. Instead, we held that
policy supports the use of a “substantial factor” instruction when there are multiple causes, even
if there is only one potentially negligent defendant. Id. at 291, 127 P.3d at 194. Additionally, we
held that the omission of the sentence instructing that there is no proximate cause if the injury
“likely would have occurred anyway” was appropriate. Id. at 288-89, 127 P.3d at 191-92. 4
Windley attempts to justify the jury instruction given on several grounds. First, Windley
argues that Fussell and Newberry do not apply to the present case because those holdings are
limited to medical malpractice cases. However, there is nothing to suggest the discussion
surrounding a “substantial factor” instruction in Fussell and Newberry was meant to apply only
to medical malpractice cases. Both of those cases rely on cases outside the medical malpractice
3
In addition, the subsequent jury instruction, also appealed by the doctor in Newberry read:
A cause can be a substantial contributing cause even though the injury, damage or loss would
likely have occurred anyway without that contributing cause. A substantial cause need not be the
sole factor, or even the primary factor in causing the plaintiff’s injuries, but merely a substantial
factor therein.
Newberry, 142 Idaho at 287, 127 P.3d at 190.
4
Thus, IDJI 2.30.2, the proximate cause “substantial factor” instruction, which contains the sentence “[i]t is not a
proximate cause if the injury, loss or damage likely would have occurred anyway” is in conflict with Fussell and
Newberry.
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context. For instance, in Fussell the Court cites to a products liability case, Fouche v. Chrysler
Motors Corp., 107 Idaho 701, 692 P.2d 345 (1984), to support its conclusion that a “substantial
factor” instruction and not a “but for” instruction should have been given. Fussell, 120 Idaho at
594-95, 818 P.2d at 298-99. In Newberry, the Court cites to a case regarding the negligent cause
of a fire and failure to have smoke alarms, Le’Gall v. Lewis County, 129 Idaho 182, 923 P.2d
427 (1996), to support its conclusion that a “substantial factor” instruction should be given when
there are multiple possible causes of plaintiff’s injury. Newberry, 142 Idaho at 288, 127 P.3d at
191. Thus, we have previously determined a “substantial factor” causation instruction is
appropriate in non-medical malpractice cases, and we decline to now limit such an instruction to
medical malpractice cases.
Next, Windley argues that a “substantial factor” instruction would have been
inappropriate because this was not a multiple cause case. Garcia contends that throughout
Windley’s presentation of his case, Windley asserted several possible additional causes of
Garcia’s injuries including the weather and that the spondylolisthesis preexisted the accident.
First, weather cannot be considered a possible cause of the accident. Weather, in and of itself,
did not cause the accident. The state of the weather goes to breach—either Windley was driving
negligently in that weather or he was not. The parties to this action have continuously mixed and
matched arguments concerning the cause of an injury and the cause of an accident. In this case
there was one possible cause of the accident and two possible causes of the injury. In this
opinion, we are discussing the cause of an injury.
As to possible causes of the injury, Windley theorized that spondylolisthesis preexisted
the accident. 5 In Newberry, the defendant argued that the introduction of bacteria, which
occurred prior to Newberry visiting the doctor, caused the loss of vision. We did not allow the
doctor to “point to a second cause, independent of his negligence, and at the same time maintain
that [it was] a single cause case.” Newberry, 142 Idaho at 289, 127 P.3d at 192. Similarly,
Windley has pointed to a second and nonnegligent cause of Garcia’s damages—that
spondylolisthesis developed prior to the accident.
5
Garcia argued that her preexisting condition of spondylolysis was aggravated by the accident to cause
spondylolisthesis. Windley argued that Garcia had spondylolisthesis before the accident. Windley is correct that
spondylolysis is not a cause of Garcia’s damages that would make this a multiple cause case. However, Windley’s
argument that the damages resulting from Garcia’s spondylolisthesis were caused by the preexisting condition of
spondylolisthesis and not by the accident is an alleged cause of Garcia’s damages.
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Thus, because this was a multiple cause case a “substantial factor” instruction and not a
“but for” instruction should have been used. Jury Instruction No. 15 should not have included
the phrase “but for,” nor should it have included the statement that there is no proximate cause if
the injury “likely would have occurred anyway.” However, the erroneous instruction is
reversible only if Garcia can show she was prejudiced. See Newberry, 142 Idaho at 287, 127
P.3d at 190.
Garcia argues she was prejudiced because the jury likely believed Windley’s position that
spondylolysis would have deteriorated into spondylolisthesis with or without the negligence;
thus, even if they believed Windley was the proximate cause of the damages in this case, they
would not award damages for the spondylolisthesis since that would have likely occurred
anyway. First, Windley responds that he never provided expert testimony that Garcia’s injuries
would likely have occurred anyway and that his position was that the spondylolisthesis
preexisted the accident. Though Windley argued the spondylolisthesis preexisted the accident,
he also provided evidence that 80% of individuals with bilateral spondylolysis develop
spondylolisthesis. Windley now attempts to narrow the use of that evidence, arguing that it was
only to discredit Garcia’s expert, Dr. Verst. 6 However, Windley has failed to cite us to any
portion of the record containing an Idaho Rules of Evidence 105 request that the statistic be
limited. Though Dr. Wilson was explicitly offering contradictory testimony to that of Garcia’s
expert on the treatise’s conclusion, there is nothing in the record to indicate the evidence was not
being offered to prove that spondylolysis will in most cases turn into spondylolisthesis.
Second, Windley argues that there is no evidence to support an inference that the jury
believed Garcia’s argument that as a result of the accident Garcia’s spondylolysis deteriorated
into spondylolisthesis and Windley’s argument that 80% of individuals with bilateral
spondylolysis develop spondylolisthesis. Garcia argues that the jury might have believed
Garcia’s preexisting condition was spondylolysis and that 80% of individuals with bilateral
spondylolysis develop spondylolisthesis. Thus, Garcia concludes that even if the jury believed
Windley’s negligent driving resulted in triggering the spondylolisthesis in this instance, the jury
might have concluded that Windley was not the proximate cause of those damages since that
6
Dr. Verst testified that spondylolysis is a benign condition, that the majority of people with spondylolysis lead
normal lives, that 80% of the people suffering from spondylolysis do not require surgery, and that Garcia’s
spondylolistheis was “sparked” by the trauma of the car accident.
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condition would eventually likely have occurred anyway. These combined beliefs could have
resulted in the jury awarding damages for the lumbar strain only and not for the cost of treating
the spondylolisthesis.
Windley is correct that Garcia does not know for certain what the jury believed.
However, an erroneous instruction is prejudicial when it could have affected the outcome of the
trial. Burgess, 119 Idaho at 306, 805 P.2d at 1230 (emphasis added). Thus, it is unnecessary to
know for certain whether the erroneous instruction did affect the outcome of the trial. The
instruction is prejudicial because in this case it could have affected the outcome of the trial.
Therefore, Windley’s argument that Garcia has not been prejudiced by the instruction since the
jury found Windley’s negligence was the proximate cause of Garcia’s injuries also fails. The
jury could have found that Windley was negligent, but that his negligence proximately caused a
lumbar strain only and not the damages resulting from the spondylolisthesis and awarded
damages accordingly.
In conclusion, because this was a multiple cause case, because a “but for” instruction was
given instead of a “substantial factor” instruction, and because that erroneous instruction could
have affected the outcome of the trial, we reverse and remand for a new trial.
C. Attorney Fees
Garcia argues she is entitled to attorney fees on appeal pursuant to I.C. § 12-121. That
statute allows an award of “reasonable attorney’s fees to the prevailing party. . . .” I.C. § 12-121.
Attorney fees are awarded to the prevailing party only if the Court determines that the appeal
was brought or defended pursued frivolously, unreasonably or without foundation. Fisk v. Royal
Caribbean Cruises, Ltd., 141 Idaho 290, 295, 108 P.3d 990, 995 (2005). When a party prevails
only in part on an appeal, that party is not a prevailing party and hence is not entitled to attorney
fees under I.C. § 12-121. Howard v. Perry, 141 Idaho 139, 143-44, 106 P.3d 465, 469-70
(2005). Garcia prevails only on the jury instruction issue. Thus, Garcia is not entitled to
attorney fees.
Windley also argues I.C. § 12-121 entitles him to an award of attorney fees on appeal.
However, Windley also prevails on only one of the issues on appeal, and thus, is not entitled to
attorney fees.
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III. CONCLUSION
We decline to review the denial of summary judgment on the issue of mitigation. We
hold the “but for” causation jury instruction was erroneous and prejudiced Garcia and remand for
a new trial. We also decline to award attorney fees and costs.
Justices TROUT, EISMANN and JONES, CONCUR.
Chief Justice SCHROEDER, DISSENTS WITHOUT OPINION.
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