97-316
No. 97-316
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
CYNTHIA DeMARS,
Plaintiff and Appellant,
v.
CONNIE CARLSTROM,
Defendant and Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas J. Murphy; Conklin, Nybo, LeVeque & Murphy, P.C.;
Great Falls, Montana
For Respondent:
Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C.;
Great Falls, Montana
Submitted on Briefs: September 17, 1997
Decided: November 4, 1997
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
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In May 1996, plaintiff and appellant, Cynthia DeMars, filed an action in the
District Court for the Tenth Judicial District in Fergus County against Connie
Carlstrom
to recover damages she incurred as a result of a single vehicle automobile accident
allegedly caused by Carlstromþs negligence. Following trial, the jury returned a
verdict
finding DeMars comparatively negligent, and apportioning liability between the two
parties. DeMars subsequently filed a motion for judgment notwithstanding the verdict
pursuant to Rule 50(b), M.R.Civ.P., on the issue of liability. In the alternative,
DeMars
moved for a new trial on the issue of comparative negligence pursuant to õ 25-11-102
(7),
MCA. On April 21, 1997, the District Court issued an order denying DeMarsþ
alternative motions for judgment notwithstanding the verdict and for a new trial.
For the
reasons discussed below, we affirm.
The sole issue on appeal is whether the District Court erred by denying DeMarsþ
motion for judgment notwithstanding the verdict or for a new trial on the basis that
Carlstromþs testimony at trial did not constitute a judicial admission which would
have
precluded the jury from considering comparative negligence and apportioning liability
between the parties.
FACTUAL BACKGROUND
On March 13, 1995, DeMars was injured in a single-vehicle automobile accident
which occurred on a county road, commonly known as þThrill Hills Road,þ just south
of Winifred, Montana. At the time of the accident, Carlstrom was driving and DeMars
was a passenger, as were the partiesþ two teenaged daughters and a mutual friend.
The
accident occurred when Carlstrom lost control of the vehicle, which rolled and
landed on
its top in a ditch near the side of the road.
DeMars filed suit on May 29, 1996, to recover her damages, alleging the accident
was caused by Carlstromþs negligence. Carlstrom admitted that her negligence was a
cause of the accident, but alleged comparative negligence as an affirmative
defense. On
February 12, 1997, the case went to trial before a jury on issues of comparative
negligence and damages.Following testimony by Carlstrom, DeMars moved for
a directed verdict on the issue of comparative negligence. The court denied DeMarsþ
motion, and the case went to the jury on issues of comparative negligence and
damages.
On February 14, 1997, the jury rendered a verdict setting damages at $45,000, but
finding DeMars contributorily negligent in causing the accident. The jury
apportioned
40 percent liability to DeMars and 60 percent liability to Carlstrom.
On March 12, 1997, DeMars filed a motion for judgment notwithstanding the
verdict pursuant to Rule 50(b), M.R.Civ.P., on the issue of liability. In the
alternative,
DeMars moved for a new trial pursuant to õ 25-11-102, MCA, which provides that the
court may order a new trial where there was an þerror in law occurring at the trial
and
excepted to by the party making the applicationþ and which þmaterially affected the
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substantial rightsþ of the aggrieved party. Section 25-11-102(7), MCA. In an order
dated April 21, 1997, the District Court denied DeMarsþ post-trial motions. It is
from
this order that DeMars appeals.
DISCUSSION
Did the District Court err by denying DeMarsþ motion for judgment
notwithstanding the verdict or for a new trial on the basis that Carlstromþs
testimony at
trial did not constitute a judicial admission which would have precluded the jury
from
considering comparative negligence and apportioning liability between the parties?
A. Motion for judgment notwithstanding the verdict.
We have held that, in evaluating a motion for judgment notwithstanding the
verdict, þthe court must view all of the evidence in a light most favorable to the
non-
moving party.þ Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 271-72, 824
P.2d 263, 265. Further, we have recognized that a motion for judgment
notwithstanding
the verdict is appropriate þonly where there is a complete absence of any evidence to
warrant submission to a jury.þ Ryan v. City of Bozeman (1996), 279 Mont. 507, 510,
928 P.2d 228, 229-30 (citing Jacques v. Montana Nat'l Guard (1982), 199 Mont. 493,
504, 649 P.2d 1319, 1325). The District Court should not grant a motion for judgment
notwithstanding the verdict þ[unless there is a complete absence of any credible
evidence
in support of the verdict. Ryan, 279 Mont. at 510, 928 P.2d at 230 (citing Barmeyer
v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled
on other grounds by Martel v. Montana Power Co. (1988), 231 Mont. 96, 752 P.2d
140)). Here, DeMars argues that Carlstrom, while testifying at trial, admitted the
accident was entirely her fault and thereby made a binding judicial admission which
should have prevented her from thereafter contesting liability. Specifically, DeMars
points to the following testimony rendered by Carlstrom while under cross-
examination:
Q: [By DeMarsþ counsel] At any rate, at one point, and actually for
several months, you said that [the accident] was all your fault. Isnþt
that true?
A: [By Carlstrom] I donþt believe I have ever changed it, how guilty
and how responsible I feel about that car wreck.
Q: And I am not trying to make you feel bad, but I need to ask you
questions. Is it true that you have said it was all your fault?
A: Yes, it is.
Q: And you said that for a number of months on a number of different
occasions. Isnþt that correct?
A: Yes, and I believe I have also said that here today.
DeMars contends that this portion of Carlstromþs testimony constitutes a binding
judicial admission with respect to the issue of liability and, therefore, argues the
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District
Court erred in permitting the jury to consider the issue of comparative fault and in
permitting it to apportion liability for the accident. In support of her
contention that
Carlstrom made a binding judicial admission, DeMars points to our decision in
Rasmussen v. State Fund (1995), 270 Mont. 492, 893 P.2d 337.
In Rasmussen, we described a judicial admission as þan express waiver made in
court by a party or his attorney conceding the truth of an alleged fact.þ
Rasmussen, 270
Mont. at 497, 893 P.2d at 340. We noted that such an admission has a conclusive
effect
upon the party who makes it, and prevents that party from introducing further
evidence
to þprove, disprove, or contradict the admitted fact.þ Rasmussen, 270 Mont. at 497,
893
P.2d at 340 (citing Kohne v. Yost (1991), 250 Mont. 109, 112, 818 P.2d 360, 362). In
Kohne, we recognized that þ[f]or a judicial admission to be binding, it must be an
unequivocal statement of fact.þ Kohne, 250 Mont. at 113, 818 P.2d at 362. DeMars
contends that Carlstrom, by agreeing the accident was all her fault, made just such
an
unequivocal statement of fact and that the court consequently erred in permitting
the jury
to consider the issue of comparative negligence.
Carlstrom, however, argues her testimony did not constitute a binding judicial
admission because it was made under pressure of cross-examination by a party to the
litigation, rather than by an attorney, and because the alleged admission of
liability was
by no means unequivocal in light of conflicting evidence of record. Carlstrom
additionally argues the statements she made on the stand do not qualify as judicial
admissions because they were not statements of fact, but were rather expressions of
opinion or legal conclusions.
Having considered the record on appeal, we conclude, as did the District Court
below, that Carlstrom did not make a binding judicial admission as contemplated by
our
decisions in the Rasmussen and Kohne cases. Although we recognized in both Rasmussen
and Kohne that a litigant may, under certain circumstances, render a judicial
admission,
Carlstrom did not do so in the present case.
For a judicial admission to be binding upon a party, the admission must be one of
fact rather than a conclusion of law or the expression of an opinion. Larson v. A.T.
S.I.
(Colo. App. 1993), 859 P.2d 273, 275-76. See also Kohne, 250 Mont. at 113, 818 P.2d
at 362 (citing Childs v. Franco (E.D. Pa. 1983), 563 F. Supp. 290, 292). Black's Law
Dictionary, 6th Edition, distinguishes facts and law as follows:
A "fact," as distinguished from the "law," may be taken as that out of
which the point of law arises, that which is asserted to be or not to be, and
is to be presumed or proved to be or not to be for the purpose of applying
or refusing to apply a rule of law. Law is principle; fact is an event. Law
is conceived; fact is actual. Law is rule of duty; fact is that which has been
according to or in contravention of the rule.
Black's Law Dictionary 592 (6th ed. 1990) (citation omitted).
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Similarly, Black's defines opinion evidence or testimony as "[e]vidence of what
the witness thinks, believes, or infers in regard to fact in dispute, as
distinguished from
his personal knowledge of the facts themselves." Black's Law Dictionary 1093 (6th
ed.
1990).
As the foregoing definitions clearly demonstrate, Carlstrom's testimony that the
automobile accident was all her fault was either her legal conclusion based upon her
understanding of the facts as she knew them, or was, in the alternative, the
expression
of her personal opinion. Accordingly, because Carlstrom's statements that she was at
fault were not statements of fact, we conclude they were not judicial admissions.
Having held that Carlstrom's statements regarding fault for the accident do not
qualify as judicial admissions because they were not statements of fact, we need not
address Carlstrom's alternative arguments that her testimony did not constitute a
binding
judicial admission because it was not unequivocal, and was made under pressure of
cross-examination by a party to the litigation, rather than by an attorney.
As noted above, we have previously held that a motion for judgment
notwithstanding the verdict is properly granted only where the record displays þa
complete absence of any evidence to warrant submission to a jury." Ryan, 279 Mont.
at 510, 928 P.2d at 230. Further, the District Court should deny such a motion þ[u]
nless
there is a complete absence of any credible evidence in support of the verdict.þ
Ryan,
279 Mont. at 510, 928 P.2d at 230. Here, the District Court concluded, and the
parties
do not dispute, that the record contained evidence upon which the jury could have
based
its decision that DeMars bore partial responsibility for the accident. Having held
that
Carlstrom did not render a judicial admission, and in light of the conflicting
evidence of
record regarding the issue of liability for the accident, we conclude the District
Court
properly permitted the issue of contributory negligence to go before the jury.
Thus, we
hold the District Court did not abuse its discretion in denying DeMarsþ motion for
judgment notwithstanding the verdict.
B. Motion for new trial.
DeMars alternatively moved for a new trial on the issue of liability pursuant to
õ 25-11-101(7), MCA, which provides that the court may order a new trial where there
was an þerror in law occurring at the trial and excepted to by the party making the
applicationþ and which þmaterially affected the substantial rightsþ of the aggrieved
party.
We review a district courtþs denial of a motion for a new trial for an abuse of
discretion. Werre v. David (1996), 275 Mont. 376, 395, 913 P.2d 625, 637; Hando v.
PPG Industries, Inc. (1995), 272 Mont. 146, 149, 900 P.2d 281, 283. See also Tope v.
Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50 (reviewing denial of
motion for new trial pursuant to õ 25-11-102(7), MCA, for manifest abuse of
discretion).
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For the reasons discussed above, we hold the District Court did not err in
permitting the question of comparative negligence to go before the jury.
Accordingly,
we hold the court did not abuse its discretion in denying DeMarsþ alternative motion
for
a new trial
In summary, we conclude, as did the District Court below, that Carlstromþs
testimony did not constitute a binding judicial admission because it did not
constitute an
unequivocal statement of fact. Therefore, we hold the District Court properly
permitted
the question of comparative negligence to go before the jury and did not abuse its
discretion in denying DeMarsþ motion for judgment notwithstanding the verdict or her
alternative motion for a new trial.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
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