Cooper v. Rosston

No. 87-293
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

PATRICIA L. COOPER,
Plaintiff and Appellant,
-vs-
KARL F. ROSSTON,

Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:

Lynaugh, Fitzgerald & Hingle; Michael G. Eiselein,
Billings, Montana
For Respondent:

Poore, Roth & Robinson; C. Richard Anderson, Butte,
Montana

--

Submitted: April 5, 1988
Decided: !.qay 31, 1988

Filed: MAY 3 I1988
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Patricia L . Cooper (Cooper) appeals a Second Judicial
District Court, Silver Row County, jury verdict award of
damages for injuries she sustained in a pedestrian/automobile
accident in Rutte, Montana. We reverse and remand for a new
trial.
This case involves an accident that occurred on
Saturday, November 19, 1983, in the parking lot of the War
Bonnett Inn, a motel in Rutte, Montana. At approximately
11:OO p.m. that evening, a 1974 one-ton Chevrolet four-door
pickup truck ran over Cooper. The driver of the pickup truck
was Karl F. Rosston (Rosston) who was sixteen years old at
the time.
Earlier that evening, Rosston picked-up six juvenile
acquaintances to attend a game at a state girls basketball
tournament in Butte. Prior to attending the game, the seven
boys purchased three six packs of beer at a local grocery
store. The boys drank some of the beer with food at around
7:00 p.m. and then went to a basketball game at the Butte
Civic Center. They left the Civic Center at around 1 0 : O O
p.m. and drove around for about an hour.
At approximately 11:OO p.m., Rosston drove his father's
pickup truck onto the entry ramp of the War Bonnett Inn.
Twenty-seven year old Patricia Cooper and some of her girl
friends were leaving the War Bonnett Inn at the time Rosston
and the other boys arrived. Cooper and her friends were also
in Butte to attend the basketball games. Prior to leaving
the War Bonnett Inn, Cooper and her friends had been drinking
alcoholic beverages in the motel lounge.
As the women exited the motel, Rosston's passengers
exited the pickup truck and began to tease Cooper and her
friends. Rosston did not participate in the teasing but
stood next to his pickup truck and watched for the three or
four minutes of the conversation. One of Rosston' s
passengers, Chris Albrecht, attempted to take a beer cooler
from the back of Cooper's pickup truck. One of the women
demanded that Albrecht return the cooler and he complied with
the demand. The boys then left the immediate vicinity in
Rosston's pickup truck.
Instead of exiting the parking lot, Rosston circled
around and parked within thirty or forty feet of the women.
Some of the boys testified at trial that they went back
specifically to attempt to take the beer cooler. Rosston's
passengers once again exited his vehicle and one of the boys
took Cooper's beer cooler. Rosston remained standing at the
door of his vehicle until the boys started running back to
the truck with the beer cooler. Rosston got into his vehicle
and began to drive away with the back doors open as his
acquaintances jumped in with the cooler. Meanwhile, Cooper
and her friends chased down Rosston's vehicle and one woman,
Kellie Reed, grabbed on to the driver's side mirror. Rosston
felt a bump and thought that he had run over a speed bump.
Kellie Reed then yelled that Rosston had run over Cooper.
Cooper had attempted to jump on to Rosston's moving vehicle
and had fallen underneath the rear tires. Rosston stopped
his vehicle, got out, and ran back to find Cooper on the
ground with extensive injuries.
The authorities were called and Cooper was taken to the
hospital. By the time the police arrived, Rosston's
passengers had all left the scene. When questioned by the
police as to what happened, Cooper's friends failed to
identify Rosston as the driver of the pickup truck. In a
verbal statement at the scene, and an hour later in a written
statement, Rosston told the police that one of the other hovs
drove the pickup truck at the time Cooper was injured.
Rosston also failed to immediately identify two of the boys
involved in the incident and did not inform the authorities
that he had consumed some alcohol earlier in the evening.
Later that evening, Rosston's acquaintances contacted the
police about their involvement in the accident.
Approximately ninety minutes after his first statement,
Rosston changed his story and informed the police that he was
the driver of the vehicle that ran over Cooper. Rosston h a s
not since denied his involvement.
On January 9 , 1984, Cooper filed a complaint and demand
for jury trial with allegations of negligent, willful and
reckless conduct. Cooper asked for general and punitive
damages. Prior to trial, Rosston sought by a motion in
limine to exclude any evidence pertaining to Rosston's
original story that someone else drove the pickup truck, his
failure to identify all of the boys involved at the time of
the accident, and his failure to inform authorities that he
had consumed alcoholic beverages that evening. The ~istrict
Court granted the motion and excluded the evidence. During
trial the District Court also struck Cooper's claim for
punitive damages on the grounds that there was no evidence of
willful or reckless misconduct.
The jury found both Rosston and Cooper fifty percent
negligent and found Cooper's total damages to be $30,000.
Cooper's total recovery after the reduction for her
percentage of the negligence was $15,000 plus $775.95 in
costs. Notably, Cooper's actual medical expenses and lost
wages totaled just under $15,000. Plaintiff Cooper appeals
from the judgment and we identify the following four issues:
1. Did the District Court err in prohibiting the
introduction of evidence regarding Rosston's
misrepresentations and omissions made to law enforcement
officials immediately after the accident?
2. Did the District Court err in instructing the jury
that a juvenile is held to a lesser standard of care than an
adult under the circumstances of this case?
3. Did the District Court err in refusing to instruct
the jury as to the elements of theft, reckless driving, and
willful and wanton misconduct?
4. Did the District Court err in striking Cooper's
claim for punitive damages?
In her first issue, Cooper claims that the District
Court should have allowed the introduction of evidence
regarding Rosston's misdeeds immediately after the accident.
We begin our analysis of evidentiary rulings with the
recognition that issues concerning the admissibility of
evidence are within the discretion of the district court.
Moen v. Peter Kiewit & Sons' Co. (1982), 201 Mont. 425, 439,
655 P.2d 482, 489. A district court's ruling on the
admissibility of certain evidence will not be disturbed
absent a showing of an abuse of that discretion. Britton v.
Farmers Ins. Group (Mont. 1986), 721 P.2d 303, 315, 43
St.Rep. 641, 654. In its order of June 15, 1987, the
District Court granted Rosston's motion in limine to exclude
evidence of the following:
1. Statements made by Karl Rosston
immediately following the accident,
wherein he denied being the driver of the
vehicle involved in this accident;
2. Inconsistencies in the statements
given by Karl Rosston following this
accident to investigating officers,
wherein he did not identify certain boys
who where at or near the scene of the
accident;
 3. Any and all other inconsistencies in
the statements provided by Karl Rosston
subsequent to this accident, including
but not limited to, whether he had
consumed alcoholic beverages; ...
The above misrepresentations and omissions, Cooper contends,
were relevant to impeach Rosston's credibility at trial and
were relevant on the issue of punitive damages. Rosston
counters by arguing that this evidence constitutes
impeachment on collateral matters and that the prejudicial
effect of the evidence outweighs any probative value.
At trial, Rosston identified the other juveniles in his
pickup truck, admitted that he was the driver of the vehicle
that ran over Cooper, and admitted that he had been drinking
prior to the accident. Rosston contends that, because these
facts were not at issue in the trial, the excluded evidence
constitutes impeachment on collateral matters. We agree that
the evidence in question was collateral to all issues in this
case except two -- the issue of Rosston's credibility as a
witness and the issue of punitive damages as will be
discussed later in this opinion.
Section 26-1-302, MCA, provides as follows:
A witness is presumed to speak the truth.
The jury or the court in absence of the
jury is the exclusive judge of his
credibility. This presumption may be
controverted and overcome by any matter
that has a tendency to disprove the
truthfulness of a witness' testimony;
such matters include but are not limited
to:

(7) inconsistent statements of the
witness;
(8) an admission of untruthfulness by
t.he witness;
 (9) other evidence contradicting the
witness' testimony.

Rule 401 of the Montana Rules of Evidence provides that
"[rlelevant evidence may include evidence bearing upon the
credibility of a witness or hearsay declarant." Credibility
evidence, though relevant, "may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice ... Rule 403 M.R.Evid. Evidence of Rosston's
misrepresentations and omissions is relevant to the issue of
his credibility as a witness and we are not convinced that
the admission of this evidence prejudices Rosston to the
point of outweighing its probative value. The jury is the
exclusive judge of Rosston's credibility and the District
Court erred in excluding evidence bearing on that
credibility. Section 26-1-302, MCA.
We also note that the "collateral matters" rule, as
argued by Rosston, was abolished in favor of the above
relevancy approach upon the adoption of Rule 607, M.R.Evid.,
in 1977. The Commission Comments on Rule 607 contain the
following language pertinent to this issue:
[Tlhe Commission intends the broad
language of Rule 607, allowing the
reliability of a witness to be attacked,
to mean that impeachment is only limited
by the ingenuity of counsel to show any
reason to disbelieve a witness' testimony
and by consideration of relevancy under
Rules 401 and 403.

The limitation of impeachment by
considerations of relevancy is a change
in Montana law to the extent that it
abolishes the collateral matters rule.
 The many cases considering collateral
matters indicate that it is a troublesome
doctrine. The Commission believes that
the limitation of impeachment by Rule
401, defining relevant evidence as
ineluding impeaching evidence, and Rule
403, allowing the court to exclude
relevant evidence if its probative value
is outweighed by prejudice, confusion,
waste of time, will allow the same result
to be reached through a more flexible
means than currently used with the
collateral matters rule. Therefore,
Section 93-401-25, R.C.M. 1947
[superseded], (to the extent that it is
concerned with collateral- matters) and
case law stating the collateral matters
rule are abolished in favor of the
relevancy approach.
Commission Comments, Rule 607, M.R.Evid. We recognize the
existence of post-1977 cases which refer to the collateral
matters rule. See e.g., Moen, 655 P.2d at 488; State v.
Harvey (1979), 184 Mont. 423, 432, 603 ~ . 2 d 661, 666.
However, this Court favors the relevancy analysis under Rules
401 and 403, M.R.Evid.
The evidence proffered by Cooper is also relevant on
the issue of punitive damages in this case. It was not until
several hours after the accident that Rosston admitted that
he was the driver of the vehicle that ran over Cooper, that
he had been drinking that evening, and that he knew the
identities of the other juvenile boys. Cooper contends that
Rosston's misrepresentations and omissions as to his actions
that night deprived the investigating officers of reason to
test Rosston's blood alcohol content. This deliberate
attempt to mislead law enforcement officials, Cooper argues,
is evi-dence of Rosston's willful and wanton conduct. We
agree.
 In Lauman v. Lee (Mont. 1981), 626 P.2d 830, 38 St.Rep.
499, this Court determined that evidence of a deliberate
destruction of physical evidence can provide the basis for
actual or punitive damages. The defendant in Lauman, Larry
Lee, wiped mud from the headlights of an automobile
involved in an accident. The investigating officer testified
at trial that the physical evidence concerning the
illuminating characteristics of the headlights at the time of
the accident was crucial to the determination of fault.
Lauman, 626 P.2d at 833. The lack of evidence concerning the
headlights decreased the settlement potential of Lauman's
case or the probability of a plaintiff's verdict. Lauman,
626 P.2d at 833. The jury awarded Lauman $17,500 in punitive
damages and Lee appealed.
On appeal, Lee argued that the award of punitive
damages was excessive. According to Lee, his conduct in
wiping the headlights was innocuous and an award of punitive
damages was, therefore, the result of the inflamed passion
and prejudice of the jury. Lauman, 626 P.2d at 834. This
Court declined to disturb the jury's award of punitive
damages and stated the following:
We have recently discussed the jury' s
prerogative in setting exemplary damages
... The jury may consider such
attendant circumstances as the malice or
wantonness of the act, the injury
intended, the motive for the act, the
manner of the commission and the
deterrent effect on others, as well as
the defendant's wealth ... The jury had
discretion reasonably to calculate a
suitable punishment for Lee's actions
after listening to the testimony and
weighing the evidence. [Citations
omitted. I
Lauman, 626 P.2d at 834.
 Sections 27-1-220 and 27-1-221, MCA, authorize an award
of punitive damages "where the defendant has been guilty of
either actual or implied malice. " Lauman, 626 P.2d at 832.
"Liability for punitive damages must be determined by the
trier of fact, whether judge or jury." Section 27-1-221(6),
MCA. Rosston admits that he lied to law enforcement
authorities concerning his involvement in the accident. In
her offer of proof, Cooper contends that the investigating
officers would have administered a blood alcohol test if they
had known that Rosston was the driver of the vehicle that
injured Cooper. As in Lauman, we are unable to determine the
precise extent of Cooper's damages that might be attributable
to Rosston's obstruction of the accident investigation.
Whether Rosston's misrepresentations and omissions give rise
to an award of punitive damages in this case was a question
of fact for the jury to determine. Section 26-1-202, MCA.
The excluded evidence was, therefore, relevant to the issue
of punitive damages. Rule 401, M.R.Evid. Accordingly, we
hold that the District Court erred in excluding evidence of
Rosston's misrepresentations and omissions to law enforcement
officials.
In her second issue, Cooper contends that the District
Court erred in giving the following instruction:
A child is not held to the same standard
of care as an adult. A child is
negligent if he fails to use that degree
of care which is ordinarily exercised by
children of the same age, intelligence,
knowledge and experience under the
circumstances then existing.
A sixteen year old (Rosston) with a valid Montana driver's
license is held to the same standard of care while driving an
automobile as an adult in the same circumstances. Wollaston
v. Burlington Northern, Inc. (1980), 188 Mont. 192, 612 P.2d
1277. The issues in this case centered around Rosston's
actions in driving a vehicle. The instruction in question
impermissibly allowed the jury to hold Rosston to a lesser
standard of care than an adult while driving a vehicle. We
hold that the District Court erred in giving the above
instruction in this case.
Cooper argues in her third issue that the District
Court erred in refusing to submit Cooper's proposed
instructions with regard to the elements of theft, reckless
driving, malice, and willful misconduct. She contends that
the evidence and testimony create a question of fact as to
whether Rosston had committed acts amounting to malice or
willful and wanton conduct. We agree.
"[Wlhere a statute specifically proscribes conduct
which is actually malicious such as theft ... punitive
damages may be sought for violation of such a statute."
Owens v. Parker Drilling Co. (1984), 207 Mont. 446, 449, 676
P.2d 162, 163-164. This Court adopted the following standard
in Owens regarding presumed malice:
When a person knows or has reason to know
facts which create a high degree of risk
of harm to the substantial interests of
another, and either deliberately proceeds
to act in conscious disregard of or
indifference to that risk, or recklessly
proceeds in unreasonable disregard of or
indifference to that risk, his conduct
meets the standard of willful, wanton,
and/or reckless to which the law of this
State will allow imposition of punitive
damages on the basis of presumed malice.
Owens, 676 P.2d at 164. The Court went on to conclude that,
"[wlhere a statute is designed to protect the substantial
interests of a person from a high degree of risk, and the
statute is violated either intentionally or recklessly, a
jury question of punitive damages is raised." Owens, 676
P.2d at 165.
The evidence in this case gave rise to questions of
fact regarding Rosston's participation in the theft of the
beer cooler, his operation of a motor vehicle in a reckless
manner, and his misrepresentations and omissions to law
enforcement officials as previously discussed. The District
Court determined that the evidence did not support
instructions on theft, reckless driving, malice, and willful
and wanton misconduct. We have reviewed the same evidence
and conclude that reasonable minds could differ as to whether
Rosston's actions constituted malicious, willful, wanton, or
reckless conduct for which punitive damages may be awarded.
Mallory v. Cloud (1975), 167 Mont. 115, 118, 535 P.2d 1270,
1272. The testimony presented the District Court with a
triable issue of fact regarding these matters relating to
Cooper's case and failure to instruct the jury on these
elements constitutes reversible error. Tacke v. Vermeer Mfg.
Co. (Mont. 1986), 713 P.2d 527, 534, 43 St.Rep. 123, 131.
We note that Cooper argues that her recovery would not
have been reduced had Rosston been found guilty of willful
and wanton misconduct. Cooper cites to Derenberger v. Lutey
(1983), 207 Mont. 1, 674 P.2d 485, to argue that simple
negligence cannot be compared with willful misconduct.
However, this Court recently overruled Derenberger in Martel
v. Montana Power Co. (Mont. 1988), 752 P.2d 140, 45 St.Rep.
460. Negligence in all forms can now be compared under
Montana's comparative negligence statute, S 27-1-702, MCA.
Martel, 752 P.2d at 143, (citing Bielski v. Schulze (Wis.
1962), 114 N.W.2d 111-114).
In light of the foregoing discussion, we must also
conclude that the District Court erred in striking Cooper's
claim for punitive damages during trial. First Nat. Rank of
Libby v. Twombly (Mont. 1984), 689 P.2d 1226, 1229, 41
St.Rep. 1948, 1953. The evidence in this case presented the
jury with numerous questions of malicious, willful, wanton or
reckless conduct which may have warranted an award of
punitive damages. As the trier of fact, the jury was
entitled to hear argument and jury instructions with respect
to punitive damages.
f
Reversed and remanded for a new trial. f

We concur: /

&?!Z
ustices

~ 4 a , J . ~ & , 4
Honorable ~ r a & I. Qaswell.
retired Chief Justice, sitting
for Mr. Justice Fred J. Weber