95-496
No. 95-496
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
GLENN F. STARKENBURG, for himself
and as Personal Representative of the
Estate of KIMBERLY KELLY STARKENBURG,
on behalf of the heirs and successors of
decedent; APRIL WILLIAMS McCARTY,
Plaintiffs and Respondents,
v.
STATE OF MONTANA,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Maxon R. Davis (argued), Kevin C. Meek; Davis,
Hatley, Haffeman & Tighe, Great Falls, Montana
For Respondents:
James G. Hunt, James P. Molloy (argued); Dix, Hunt
& Molloy Law Firm, Helena, Montana
Janet L. Rice; Schroeter, Goldmark & Bender,
Seattle, Washington
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Ralph A. Alfieri; Law Offices of Ralph A. Alfieri,
Seattle, Washington
Submitted: September 17, 1996
Decided: March 11, 1997
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The State of Montana (State) appeals from the judgment entered
by the First Judicial District Court, Lewis and Clark County, on a
jury verdict awarding Glenn and Lois Starkenburg $250,000 in
damages plus their costs, the Estate of Kimberly Starkenburg
$210,000 in damages plus its costs, and April Williams McCarty
$400,000 in damages plus her costs. We affirm.
We restate the issues on appeal as follows:
1. Did the District Court err in denying the State's motion
for summary judgment and motion for directed verdict?
2. Did the District Court abuse its discretion in instructing
the jury regarding a parole officer's duty?
3. Did the District Court abuse its discretion in refusing to
declare a mistrial?
4. Did the District Court err in submitting the Starkenburg
survival action to the jury and in instructing the jury thereon?
Charles Corliss (Corliss) and an accomplice kidnapped and
murdered Donald Hammer, a Montana businessman, in 1965. Corliss
was sentenced to imprisonment for life at the Montana State Prison
(Prison) for the execution-style murder and to an additional ten-
year sentence for the kidnapping, to be served consecutively to the
life sentence.
While at the Prison, Corliss attempted to escape several
times. In one such attempt in 1968, he and other inmates tied up
a Prison employee. Corliss pled guilty to holding a person against
his will and received a three-year deferred sentence. Corliss
escaped from the Prison in 1974 and was apprehended nine days later
at the home of his wife, Betty Corliss (Betty), in Deer Lodge,
Montana. He pled guilty to escape and received a five-year
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sentence to be served consecutively to his sentences for kidnapping
and murder. Corliss also attempted suicide several times while
incarcerated and was transferred from the Prison to the Warm
Springs State Hospital (Warm Springs) in 1979 as a result of such
a suicide attempt.
Corliss was released from Warm Springs in 1983 on a furlough
and subsequently was granted parole in 1985. Corliss' parole
carried with it the standard conditions and restrictions, including
the prohibition against owning, possessing or being in control of
any firearm or other deadly weapon.
From 1986 through the time period relevant here, David Robbins
(Robbins) was Corliss' parole officer. On April 13, 1990, Robbins
authorized Corliss to travel to Bellevue, Washington, for a
vacation and to look for employment. Under the written two-week
travel permit, Corliss was to reside with his brother-in-law in
Bellevue. Robbins did not verify Corliss' living arrangement in
Washington and, indeed, Corliss did not live with his brother-in-
law during that time. Nor did Robbins notify Washington
authorities of Corliss' presence there, as is the standard
procedure under such circumstances.
Robbins instructed Corliss to visit a parole officer while in
Washington, but Corliss failed to do so. After spending
approximately two and a half months in Washington, Corliss sent
Robbins a letter dated July 5, 1990, informing Robbins that he was
unable to find a parole officer. Robbins did not take any action
to ensure that Corliss comply with his instruction to report to a
Washington parole officer. At that time, Corliss' travel permit
had been expired for approximately two months.
During the same time period, Corliss called Robbins from
Washington and informed Robbins that he had a girlfriend, Tamera
Farrington (Farrington), and that she had obtained a temporary
restraining order (TRO) against him for allegedly putting sugar in
her gas tank. Corliss assured Robbins that it was all a
misunderstanding. According to Robbins, Farrington then got on the
telephone and reiterated that the TRO was the result of a
misunderstanding; Farrington denies that she ever spoke with
Robbins on the telephone. Robbins did not make a record of his
conversation with either Corliss or Farrington.
Robbins did not ask Corliss to send him a copy of the TRO or
attempt to obtain a copy from Washington authorities. The TRO was
filed on July 5, 1990, and described a number of incidents in which
Corliss had acted violently toward Farrington. Farrington alleged
in the TRO that Corliss struck her on two occasions in March of
1990 and repeatedly hit her on two other occasions in April and May
of 1990. She stated that Corliss "threatened to kill [her] and
described the places he could 'hide [her] body.' He threatened
[her] family, [and] friends. . . ." Farrington further alleged
that, on July 1, 1990, Corliss backhanded her twice across the
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face, put sugar in her gas tank and threatened her life.
Farrington sent Robbins a letter dated July 12, 1990, stating
that "[t]his is to assure you that what [Corliss] is telling you is
true." She stated that she had no intention of filing charges
against Corliss because she could not be sure he was the one who
put sugar in her gas tank. Farrington did not mention the
allegations contained in the TRO regarding Corliss' violence and
threats against her or his threats against her family and friends.
Farrington included her address and telephone number at work in the
letter. Robbins did not attempt to contact her regarding the TRO
or her letter.
Corliss returned to Montana on July 13, 1990, and met with
Robbins. Robbins issued Corliss a thirty-day travel permit the
same day which allowed Corliss to relocate his family to
Washington.
Approximately two weeks later, Robbins received a telephone
call from Corliss and his wife, Betty. Corliss informed Robbins
that Betty had learned of his affair with Farrington and had
threatened him with a gun and a knife at their home. Betty denied
threatening Corliss with the weapons. She did express a great deal
of anger about Robbins' failure to tell her about Corliss' affair
prior to her quitting her job in Montana and relocating to
Washington.
Corliss obtained a TRO against Betty on August 1, 1990, and
sent a copy of the TRO to Robbins. The TRO described an
altercation between Corliss and Betty where Betty "went to a
bedroom and took a .38 pistol and said she was going to kill
[Corliss]." Although possession of a firearm is a parole
violation, Robbins did not investigate whether there was, in fact,
a firearm in the Corliss residence.
Corliss contacted Robbins in early October and informed
Robbins that he was reconciling with Betty and moving back into
their home. Robbins did not ask whether the .38 pistol Corliss had
said was involved in the altercation with Betty was still located
in the home.
In a letter to Robbins dated October 10, 1990, Corliss stated
that Farrington was not going to "quietly go out of [his] life."
Five days later, Corliss broke into Farrington's home while she was
away and hid until her return.
Farrington arrived home with three friends--Kimberly
Starkenburg (Kimberly), April McCarty (April) and Brenda Mahoni
(Brenda). Farrington, April and Brenda went directly inside while
Kimberly remained outside. Brenda opened a bedroom door and
Corliss stepped out and held an "old revolver" to Brenda's face.
He made April and Brenda kneel on the floor next to each other. He
hit Farrington, knocking her to the floor, and then stepped
outside, grabbed Kimberly by the arm and dragged her inside.
Corliss made Kimberly kneel on the floor beside April and Brenda.
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Farrington got up and ran out the front door. Corliss fired
a shot at her, but missed. Corliss then returned to where the
three women were kneeling. He shot Kimberly first and then shot
April and Brenda. April and Brenda fell to the floor after being
shot; Kimberly remained kneeling. Corliss shot Kimberly a second
time and she fell to the floor. He then fled out the front door.
April went to Kimberly's aid, trying to get her to speak.
April could hear gurgling noises coming from Kimberly which sounded
"like she was trying to breathe, catch her breath." April then
tried to go out the back door for help. Corliss was hiding in the
back yard and, when April opened the door, he shot her a second
time. Farrington arrived with the police approximately fifteen to
twenty minutes later. Kimberly died as a result of her gunshot
wounds. April and Brenda survived; April has a .38 caliber bullet
lodged near her spine.
Glenn Starkenburg, individually and as the personal
representative of the estate of Kimberly Starkenburg, and April
McCarty and her husband, Cary McCarty, (collectively, Starkenburg)
filed separate complaints against the State alleging negligence in
improperly supervising Corliss. Starkenburg's complaint also
stated a survival claim on Kimberly's behalf. By consent of all
parties, the cases were consolidated for trial.
A jury trial was held in August of 1995. The jury found that
the State was negligent and that its negligence caused Kimberly's
injuries and death and April's injuries; it further found that
Kimberly's death was not instantaneous. The jury awarded damages
against the State accordingly and judgment was entered on the
verdict. The State appeals.
Additional facts are set forth below where necessary for our
resolution of the issues before us.
DISCUSSION
1. Did the District Court err in denying the State's
motion for summary judgment and for a directed verdict?
The State moved for summary judgment in March of 1995,
contending that Corliss' criminal acts of shooting Kimberly and
April were unforeseeable as a matter of law. It argued that
Starkenburg could not establish proximate causation in this case
because Corliss' acts constituted an intervening, superseding cause
of Kimberly's injuries and death and April's injuries. The
District Court denied the motion. After presentation of
Starkenburg's case-in-chief, the State moved for a directed verdict
on the same basis and the court denied that motion as well.
Although the District Court did not specifically state its
rationale for denying the State's motions for summary judgment and
for a directed verdict, the court's conclusion that Corliss'
criminal acts of shooting Kimberly and April were not unforeseeable
as a matter of law was implicit in the denials. We review a
district court's conclusion of law to determine if the court's
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interpretation of the law is correct. Werre v. David (1996), 275
Mont. 376, 385, 913 P.2d 625, 631.
The State's argument that Corliss' criminal acts were
unforeseeable as a matter of law is premised primarily on its
underlying contention that "the intentionally wrongful acts of
third parties are simply not viewed as foreseeable, so as to give
rise to the imposition of liability upon the State." We recently
clarified, after the trial and briefing on appeal in this case,
that the intervening criminal act of a third party may be
foreseeable and that, in such cases, the factfinder should decide
causation in the same manner as in any other intervening causation
case. Estate of Strever v. Cline (Mont. 1996), 924 P.2d 666, 673-
74, 53 St.Rep. 576, 582.
In Estate of Strever, Tom Susanj (Susanj) left his unlocked
pickup truck on a street in Billings while he visited his father.
A radar detector, cassette recorder, jumper cables, binoculars,
fishing rod, tapes, tool box and camera were left in the pickup's
cab; in addition, a handgun and ammunition were under the seat of
the pickup in a white bag. Estate of Strever, 924 P.2d at 668.
Three young boys--Robert Strever (Strever), Steven Cline (Cline)
and Bowen Racine (Racine)--entered Susanj's pickup and stole
several items. Cline had been smoking marijuana earlier in the
night. Teenager Thomas Morris (Morris) joined the three boys after
seeing them near Susanj's pickup. Morris removed the handgun and
ammunition from beneath the seat in the pickup. Estate of Strever,
924 P.2d at 668.
Cline subsequently gained control of the gun and waived it
around with his finger on the trigger. While examining it, Cline
ejected a live shell from the chamber. He was trying to remove the
ammunition clip from the gun when the gun discharged. The bullet
struck Strever in the head and Strever died. Estate of Strever,
924 P.2d at 668. Strever's estate sued Susanj, as well as Cline,
Morris and Racine. The district court granted summary judgment in
favor of Susanj and Strever's estate appealed. Estate of Strever,
924 P.2d at 668.
On appeal, we addressed at length the issue of foreseeability
insofar as it relates to the causation element of a negligence case
involving intervening criminal acts by third parties. See Estate
of Strever, 924 P.2d at 672-74. There, Susanj was neither aware,
nor had reason to be aware, of any crime problem in the
neighborhood where he left his pickup unlocked. Estate of Strever,
924 P.2d at 668. We observed that the record reflected two
intervening criminal acts by the boys (the two thefts from Susanj's
pickup) and grossly negligent intervening acts by Cline (waving the
stolen gun around with his finger on the trigger, while high on
marijuana, and then trying to unload it). Estate of Strever, 924
P.2d at 674. We concluded that reasonable minds could come to but
one conclusion--that the series of intervening acts was reasonably
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unforeseeable and, therefore, Susanj was not liable for Strever's
death as a matter of law. Estate of Strever, 924 P.2d at 674.
Accordingly, we held that the district court properly granted
summary judgment to Susanj because any negligence by Susanj was
superseded by the independent intervening criminal and grossly
negligent acts of Cline, Strever, Morris, and Racine. Estate of
Strever, 924 P.2d at 674.
Notwithstanding our ultimate holding in Estate of Strever, we
emphasized that cases involving intervening superseding acts
ordinarily present questions of fact properly left to the trier of
fact to resolve. Estate of Strever, 924 P.2d at 674.
If, under the facts of a given case, an intervening
criminal act is one which the defendant might reasonably
foresee, then there is no reason why the fact finder
should not decide causation the same as with any other
intervening causation case.
. . . .
[T]rial courts must continue to carefully review each
fact situation involving intervening criminal acts on a
case-by-case basis, and it is only where reasonable minds
could come to but one conclusion, that this issue is
properly disposed of as a matter of law.
Estate of Strever, 924 P.2d at 674. Thus, contrary to the State's
assertion in the present case, intervening criminal acts of third
persons are not automatically unforeseeable as a matter of law.
Rather, such acts must be addressed in the foreseeability context
on a case-by-case basis.
Here, numerous facts relating to the foreseeability of
Corliss' criminal acts during the relevant time period of his
parole were before the District Court at the time of the summary
judgment proceedings. Under both travel permits issued by Robbins,
Corliss remained in Washington beyond the time allowed and Robbins
took no corrective action. When Robbins issued the April 13, 1990,
permit, he ordered Corliss to visit a parole officer while in
Washington. Corliss failed to do so and, notwithstanding Robbins'
knowledge of Corliss' failure to comply, Robbins took no action.
In addition, Robbins knew that Corliss had a girlfriend,
Farrington, who had obtained a TRO against Corliss in July of 1990.
Robbins did not attempt to obtain a copy of the TRO or investigate
the circumstances surrounding the TRO. Robbins' deposition
testimony established that he could have obtained the Farrington
TRO, but he "never thought about gaining access to it." Had
Robbins obtained a copy of the TRO, he would have learned that
Farrington alleged that Corliss was violent toward her on numerous
occasions and had threatened to kill her and her family and
friends.
In late July of 1990, Corliss alerted Robbins that an
altercation had occurred between himself and Betty, during which
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Betty retrieved a gun from a bedroom of their home. Robbins
received a copy of a TRO obtained by Corliss against Betty which
contained a statement to the same effect. Even though Corliss was
subject to a parole condition which prohibited the possession of a
firearm, Robbins neither confronted Corliss about the possible
firearm possession nor investigated the presence of a gun in the
Corliss household.
Faced with the foregoing facts, the District Court implicitly
concluded that Corliss' criminal acts were not unforeseeable as a
matter of law. As discussed above, such a conclusion will be
correct in the usual case; a determination to the contrary--that
intervening criminal acts were unforeseeable as a matter of law--is
appropriate only where reasonable minds could reach but one
conclusion regarding foreseeability. See Estate of Strever, 924
P.2d at 674.
Unlike Estate of Strever, the issue of causation in the
present case is not susceptible to determination as a matter of
law. There, the record was devoid of any facts from which a jury
could determine that Susanj should have foreseen the series of
intervening criminal and grossly negligent acts of the minor boys.
Here, however, Robbins was confronted with facts that indicated
that Corliss--a convicted execution-style murderer--may have had a
.38 pistol in his home. Moreover, Robbins had access to
Farrington's TRO which contained allegations of violence by Corliss
against Farrington, as well as threats against Farrington and her
family and friends. Based on the facts of this case, a jury
properly could find that Robbins could reasonably have foreseen
criminal acts of violence against Farrington and her friends.
Therefore, the Strever test for unforeseeability of intervening
criminal acts as a matter of law--that reasonable minds could come
to but one conclusion--was not met here and the issue of proximate
causation properly was left for the jury.
In support of its "unforeseeability as a matter of law"
argument and its contention that the District Court erred in this
regard, the State relies on VanLuchene v. State (1990), 244 Mont.
397, 797 P.2d 932; Kiger v. State (1990), 245 Mont. 457, 802 P.2d
1248; U.S. Fidelity and Guar. Co. v. Camp (1991), 253 Mont. 64, 831
P.2d 586; and King v. State (1993), 259 Mont. 393; 856 P.2d 954.
We discussed and distinguished these cases in Estate of Strever
which, as mentioned above, was not available to the State when
briefing the present case for appeal. The cases are equally
distinguishable from the present case and do not support a
determination that Corliss' criminal acts were unforeseeable as a
matter of law. We review them only briefly below.
In VanLuchene, Robert Hornback was released from prison after
serving his entire sentence for felony sexual assault. VanLuchene,
797 P.2d at 933. Several months later, he sexually assaulted and
killed eight-year-old Ryan VanLuchene. VanLuchene's family sued
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the State, alleging that it negligently failed to satisfy its
statutory duty of rehabilitating Hornback. The district court
dismissed the plaintiffs' complaint and the plaintiffs appealed.
VanLuchene, 797 P.2d at 933-34.
Like the present case, VanLuchene involved intervening
criminal acts by a third party. We concluded, however, that the
State did not owe a duty to the plaintiffs because, once Hornback
served his entire sentence, the State was required to release him.
See VanLuchene, 797 P.2d at 936. Accordingly, we did not analyze
Hornback's intervening acts in the context of causation on appeal.
Thus, VanLuchene is not applicable here.
In Kiger, Danny Arledge shot and critically injured Katrina
Kiger while trying to steal her car approximately eighteen days
after being paroled from prison. Prison authorities had
miscalculated when Arledge would be eligible for parole and, as a
result, he still should have been in prison on the day of the
shooting. Kiger, 802 P.2d at 1249. Kiger sued the State for
negligence and the district court granted summary judgment to the
State. Kiger, 802 P.2d at 1249.
The foreseeability of Arledge's criminal act of shooting Kiger
was at issue on appeal. Kiger, 802 P.2d at 1249-51. We noted
that, in order for the State's negligence in prematurely paroling
Arledge to be the proximate cause of Kiger's injuries, the State
must have been able to reasonably foresee the consequences of its
negligence. Kiger, 802 P.2d at 1251 (citation omitted). Under the
facts before us, we concluded that there were too many "what ifs"
that were superseding events, breaking the chain of causation
between the State's miscalculation and Kiger's injuries. Kiger,
802 P.2d at 1251.
Our decision in Kiger was premised on the specific facts of
that case. Unlike the present case, the record before us in Kiger
was devoid of evidence indicating that Arledge's criminal acts were
reasonably foreseeable by the State. See Kiger, 802 P.2d at 1250-
51.
In Camp, Randall Broadbrooks pled guilty to driving under the
influence of alcohol, fourth offense, and driving while a habitual
traffic offender. He was sentenced to one year in the county jail
and participated in a work release program under which he was
released from jail from 8:00 a.m. until 5:00 p.m. each weekday.
Camp, 831 P.2d at 587.
On a Friday evening, Broadbrooks went to his apartment instead
of returning to jail and the police were unable to locate him. He
apparently fell asleep while smoking a cigarette. The cigarette
fell and ignited a couch, resulting in a fire which damaged the
apartment building. The insurer for the owners of the apartment
building sued the Phillips County Sheriff, Mike Camp, for
negligence, attempting to recover money paid to its insureds as a
result of the fire. The district court granted Camp's motion for
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summary judgment and the plaintiff appealed. Camp, 831 P.2d at
587-88.
On appeal, we noted that Camp could be held liable only if
Broadbrooks' act of falling asleep while smoking a cigarette in his
apartment was reasonably foreseeable. We concluded that it was not
and, therefore, that Broadbrooks' act was a superseding cause of
the plaintiff's injuries. Camp, 831 P.2d at 590.
The record before us in Camp did not contain any evidence
forewarning that Broadbrooks might accidently start a fire at his
apartment. In the present case, however, the record contains
sufficient evidence to raise a question of fact for the jury as to
whether Corliss' criminal acts against Farrington and her friends
were foreseeable.
In King, Victor Buddell was involuntarily committed to Warm
Springs for a three-month term. A recommitment hearing was held
several months later and the district court determined that, while
Buddell was a danger to himself, the least restrictive environment
for him was a conditional release to the community. The State did
not appeal the release order. Less than a month after his release,
Buddell killed David King. King, 856 P.2d at 955. King's parents
sued the State for negligence and the district court dismissed the
complaint for failure to state a claim, concluding that the State
did not have a duty to appeal the release order. King, 856 P.2d at
955.
On appeal, we noted that a statute permitted the State to
appeal, but that the statute was not mandatory. On that basis, we
concluded that the State did not have a duty to appeal the release
order. We also concluded that Buddell's act was not reasonably
foreseeable by the State and stated that, when an injury is caused
by a third party's intervening act, the defendant's negligent
actions cannot be the proximate cause of the injury. King, 856
P.2d at 956-57.
In the present case, the State relies on our statement in King
that, "if a plaintiff's injury is caused by the intervening act of
a third-party, the defendant's actions cannot be viewed as the
proximate cause of that injury." See King, 856 P.2d at 956 (citing
Graham v. Montana State Univ. (1988), 235 Mont. 284, 289-90, 767
P.2d 301, 304)(emphasis added). We overruled that statement from
King in Estate of Strever, however, noting that Graham did not
support our use of the word "cannot" regarding intervening acts of
third parties. Estate of Strever, 924 P.2d at 673.
The State's reliance on VanLuchene, Kiger, Camp, and King is
misplaced. Based on the record in this case, we hold that the
District Court was correct in implicitly concluding that Corliss'
criminal acts of shooting Kimberly and April were not unforeseeable
as a matter of law and in denying the State's motion for summary
judgment.
As set forth above, the State renewed its "unforeseeable as a
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matter of law" argument at the close of Starkenburg's case-in-chief
via a motion for a directed verdict. The District Court denied the
motion.
A directed verdict is proper only when there is a complete
absence of any evidence which would justify submitting an issue to
a jury. Werre, 913 P.2d at 630. Here, our conclusion that the
facts in this case would support a finding that Robbins could
reasonably have foreseen criminal acts of violence by Corliss
against Farrington and her friends establishes that there was
evidence to justify submitting the causation issue to the jury. On
that basis, we hold that the District Court properly denied the
State's motion for a directed verdict.
2. Did the District Court abuse its discretion in
instructing the jury regarding a parole officer's duty?
The State argues that, in both giving and refusing certain
instructions, the District Court failed to properly instruct the
jury on the duty of a parole officer. A district court has
discretion in instructing the jury and we will not reverse the
court on the basis of alleged instructional errors absent an abuse
of discretion. Werre, 913 P.2d at 635 (citation omitted).
The State contends that the District Court erred in giving
Instruction Nos. 9 and 14, both of which relate to duty.
Instruction No. 9 states:
Every person is responsible for injury to the person
of another caused by his negligence.
Negligence is the failure to use reasonable care.
Negligence may consist of action or inaction. A parole
officer is negligent if he fails to act as an ordinarily
prudent parole officer would act under the circumstances.
Instruction No. 14 reiterates a parole officer's "duty to exercise
reasonable care to control" a parolee. According to the State,
these instructions are incorrect statements of Montana law on a
parole officer's duty because Robbins owed no duty to Starkenburg.
Whether a legal duty exists is a question of law to be determined
by the district court. Estate of Strever, 924 P.2d at 669
(citation omitted). Thus, we review the challenged instructions to
determine whether they correctly state the law on a parole
officer's duty in this case.
The first three sentences of Instruction No. 9 merely restate
the principles of negligence contained in Montana statute and case
law. For example, 27-1-701, MCA, states that, except as
otherwise provided by law, "everyone is responsible . . . for an
injury occasioned to another by his want of ordinary care . . .
[;]" similarly, under 1-1-204(4), MCA, negligence "denote[s] a
want of the attention to the nature or probable consequences of the
act or omission that a prudent man would ordinarily give in acting
in his own concerns." Our cases repeatedly reiterate that,
ordinarily, negligence involves the failure of an actor to use
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reasonable care. See, e.g., Estate of Strever, 924 P.2d at 670-71;
Jacobsen v. State (1989), 236 Mont. 91, 769 P.2d 694.
The general principles of negligence contained in Instruction
No. 9 are correct statements of Montana law and, indeed, the State
does not contend otherwise. The State's assertions of legal error
with regard to Instruction Nos. 9 and 14 relate to the portions of
those instructions which apply these general negligence principles
to a parole officer.
We observe at the outset that the State cites to no Montana
statute or case law providing an exception for parole officers from
the duty generally imposed by 27-1-701, MCA. Moreover, parole of
inmates from the Prison and the status and supervision of parolees
thereafter are governed by statute in Montana. The parole of an
imprisoned person involves release to the community prior to the
expiration of the prison sentence imposed. See 46-1-202(15),
MCA. "A prisoner while on parole remains in the legal custody of
the institution from which the prisoner was released but is subject
to the orders of the [Board of Pardons and Parole]." Section 46-
23-215(1), MCA. The Department of Corrections "retain[s] custody
of all persons placed on parole and shall supervise the persons
during their parole periods in accordance with the conditions set
by the board." Section 46-23-1021(1), MCA. Thus, in Montana, a
parolee remains in the State's "custody" and the meaning of
"custody" is interwoven with defining the State's duty with regard
to parolees.
The legislature has not defined "custody" in the parole
context. Custody generally is defined as "judicial or penal
safekeeping: control of a thing or person with such actual or
constructive possession as fulfills the purpose of the law or duty
requiring it. . . ." Webster's Third New International Dictionary, 559
(1971). Similarly, Black's Law Dictionary, 460 (1968) defines custody
as "[d]etention; charge; control; possession. The term . . . may
mean actual imprisonment . . . or mere power, legal or physical, of
imprisoning or of taking manual possession." Interpreting 46-
23-215(1) and 46-23-1021(1), MCA, according to the plain and
ordinary meaning of the language used therein, as we must (see
Werre 913 P.2d at 631), it is clear that the State continues to
have control over parolees after release from the Prison.
Furthermore, the State is statutorily required to supervise
parolees--that is, persons in its custody and over whom it has
power and control--according to the parole conditions imposed.
Section 46-23-1021(1), MCA.
Instruction No. 9 does nothing more than apply general
negligence standards to parole officers in supervising parolees.
Moreover, it does so in a manner entirely consistent with
applicable statutes. Similarly, Instruction No. 14 merely imposes
a duty to exercise reasonable care to control a parolee who already
is, by statute, subject to that control.
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Nor does the foreseeability component of duty weigh against
the existence of a duty in this case. We recently discussed at
length, and clarified, Montana law regarding foreseeability insofar
as it relates to the duty element of negligence. See Estate of
Strever, 924 P.2d at 670-72; Busta v. Columbus Hosp. Corp. (1996),
276 Mont. 342, 916 P.2d 122. We stated that
[f]oreseeability is of prime importance in establishing
the element of duty. . . . If a reasonably prudent
defendant can foresee neither any danger of direct injury
nor any risk from an intervening cause he is simply not
negligent.
. . . .
[Since duty] is inherently intertwined with
foreseeability, such duty or obligation must necessarily
be adjudicated only upon a case-to-case basis.
Busta, 916 P.2d at 134 (quoting Mang v. Eliasson (1969), 153 Mont.
431, 437-39, 458 P.2d 777, 781-82).
Considerations of foreseeability in the duty context are
directed to the foreseeability of the risk involved with the
conduct at issue. See Estate of Strever, 924 P.2d at 671-72.
Indeed,
[t]he obligation of defendants turns on whether:
". . . the offending conduct foreseeably involved
unreasonably great risk of harm to the interests of
someone other than the actor. . . . Duty, in other
words, is measured by the scope of the risk which
negligent conduct foreseeably entails."
. . . And absent foreseeability, there is no duty owed by
defendants to plaintiff. . . .
Busta, 916 P.2d at 134 (quoting Mang, 458 P.2d at 781-82)(emphasis
added).
In this case, the conduct at issue is Robbins' supervision of
Corliss, a parolee originally convicted and sentenced to a life
sentence at the Prison for an execution-style murder. Both the
State and Starkenburg agree that the primary responsibility of a
parole officer in supervising a parolee is the protection of
society. In this regard, Robbins conceded at trial that an
execution-style murderer should be supervised more closely than
other types of parolees because of the potential danger posed by
such a parolee.
On this record, it is clear that any negligent supervision by
Robbins of Corliss foreseeably involved an unreasonably great risk
of harm to persons other than Robbins generally and to Farrington
and those close to her in particular. Furthermore, given that
Montana statutes maintain parolees in legal custody and require
parole supervision in accordance with the parolee's conditions of
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parole, Robbins clearly had a duty to exercise reasonable care to
control Corliss and prevent him from doing such harm.
Finally, we take note of--and reject--the State's "sky is
falling" arguments in this regard. Such arguments are not based on
the law and have no place in a case involving fundamental
principles of law and application of controlling statutes.
Moreover, a duty to exercise reasonable care when the unreasonable
risk of harm in failing to do so is foreseeable is hardly an
extraordinary burden; such a duty is not--as the State is well
aware--the equivalent of a duty to exercise 24-hour-a-day control.
Considering Instruction Nos. 9 and 14 in light of general
negligence principles and Montana statutes which relate to parole
and impose an affirmative duty to supervise, we conclude that they
correctly state Montana law regarding a parole officer's duty.
The State also asserts error in the District Court's refusal
of three of its proposed jury instructions based on the Restatement
(Second) of Torts 315 and 319 (1965). The State's proposed jury
instruction no. 16 states:
The State does not have a duty to control or take
charge of a parolee to prevent him from doing harm to a
third party victim unless a special relationship exists
between the parole officer and the third party victim
such that the parole officer would know or have reason to
know that the specific identifiable third party victim
would be the object of harm by the parolee. The above-
described duty exists only to specifically identifiable
individuals and is not a duty to protect the public at
large.
Proposed instruction no. 18 provides:
A parole officer has no duty to control the conduct
of a parolee to prevent him from causing physical harm to
another unless:
(a) a special relationship exists between the parole
officer and the parolee which imposes a duty upon the
parole officer to control the parolee's conduct, or
(b) a special relationship exists between the parole
officer and the third party victim which gives to the
third party victim a right to protection.
Finally, the State's proposed instruction no. 19 reads:
A parole officer who takes charge of a parolee whom
he knows or should know to be likely to cause bodily harm
to others if not controlled is under a duty to exercise
reasonable care to control the parolee to prevent him
from doing such harm.
The State contends that these proposed instructions correctly state
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the law applicable to its duty in the present case and negate the
existence of any duty because no "special relationship" or
"control" existed and Robbins did not "take charge" of Corliss.
On the face of it, these proposed instructions do not appear
to be entirely consistent with either the Montana statutes
governing parole or the foreseeability component of duty discussed
above. In any event, however, we have not previously adopted the
Restatement principles on which the proposed instructions were
based and, given our conclusion above that Instruction Nos. 9 and
14 correctly state Montana law applicable to this case, we need not
address them further here.
The State also asserts error in the District Court's refusal
of its proposed instruction no. 17. Review of that proposed
instruction reveals that it is an instruction on cause in fact and
proximate cause which is unrelated to the legal question of the
existence of a duty in this case. The State did not present an
argument regarding this instruction under any issue involving
causation; as a result, we do not address it.
We hold that the District Court did not abuse its discretion
in instructing the jury on Robbins' duty in this case.
3. Did the District Court abuse its discretion in
refusing to declare a mistrial?
During trial, April testified regarding the gun Corliss used
to shoot her, Kimberly and Brenda. She testified that the gun was
old and that it looked like a gun from a western movie; she noted
that Corliss had to pull back the hammer before firing each shot.
April also testified that the gun was from the 1800s and that
[t]he expert witness that testified at [Corliss' criminal
trial in Washington] said because of the grooves in the
bullet, the slug that came through [her], and the depth
of them, it was an older gun. It hadn't been cleaned for
quite sometime, over many years and it had worn grooves
into it to make the grooves into the slug.
The State timely objected to this latter testimony and the District
Court overruled the State's objection. The court also denied the
State's related motion to strike the testimony regarding the year
the gun was manufactured.
A week later, as the trial was drawing to a close, the State
moved for a mistrial. In addition to renewing its argument that
April's testimony was inadmissible, the gravamen of the State's
motion was an allegation that Starkenburg's counsel had knowingly
presented false testimony by April. In this regard, the State
advised the District Court that it had obtained a transcript of
Corliss' criminal trial and that the expert witness did not testify
that the gun Corliss used was from the 1800s or was an older gun.
The allegation of knowing presentation of false testimony was
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premised on the fact that Starkenburg's counsel already had
obtained the transcript and, therefore, had known all along--and
concealed from the court--that April's testimony was false.
Starkenburg's counsel denied knowingly presenting false testimony.
He stated that, while April's recollection of the expert testimony
at the criminal trial may have been erroneous, she left Corliss'
criminal trial with the impression that the gun was a late 1800s
gun.
The District Court reviewed April's testimony and the
testimony at issue from Corliss' criminal trial. It concluded that
April's erroneous characterization of the criminal trial record was
based on her own impressions of what she heard at that trial. On
that basis, the court rejected the State's contention that
Starkenburg's counsel knowingly put on false testimony and denied
the State's motion for a mistrial.
Raising again both the inadmissibility of April's testimony
and the knowing presentation of false testimony by Starkenburg's
counsel, the State argues on appeal that the District Court erred
in refusing to grant a mistrial. We review a trial court's denial
of a motion for mistrial in a civil case for abuse of discretion.
Dees v. American Nat'l Fire Ins. Co. (1993), 260 Mont. 431, 443,
861 P.2d 141, 148 (citing Kuhnke v. Fisher (1987), 227 Mont. 62,
68, 740 P.2d 625, 628). We address the State's arguments on
admissibility and knowing presentation of false testimony in turn.
Admissibility of April's Testimony
Determinations of the admissibility of evidence are within the
sound discretion of the trial court. In re Marriage of Lopez
(1992), 255 Mont. 238, 245, 841 P.2d 1122, 1126 (citing Cooper v.
Rosston (1988), 232 Mont. 186, 756 P.2d 1125). Absent an abuse of
discretion, we will not reverse a district court's ruling on the
admissibility of evidence. See Werre, 913 P.2d at 633.
Hearsay is "a statement, other than one made by the declarant
while testifying at trial or hearing, offered in evidence to prove
the truth of the matter asserted." Rule 801(c), M.R.Evid. April's
testimony regarding the expert witness testimony from Corliss'
criminal trial was clearly a statement other than one made by the
declarant while testifying at trial. Starkenburg does not argue
that the testimony was not offered to prove the truth of the matter
asserted and does not contend that it falls within one of the
exceptions to the hearsay rule; indeed, Starkenburg concedes that
April's testimony in this regard was inadmissible hearsay. Thus,
we conclude that the District Court abused its discretion in
admitting the testimony over the State's objection.
The question remains, however, whether the court's abuse of
discretion constitutes reversible error. See Marriage of Lopez,
841 P.2d at 1126. An error in the admission of evidence is
harmless and, as a result, does not warrant reversal unless the
substantial rights of the complaining party have been materially
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affected. Rule 61, M.R.Civ.P.; Marriage of Lopez, 841 P.2d at
1126.
Here, the District Court provided the State with an
opportunity to impeach April's testimony via the transcript from
the criminal trial. In addition, Starkenburg recalled April as a
witness and she testified that she had been mistaken and did not
know the manufacture date of the gun.
Moreover, the record before us contains other evidence
regarding the gun used by Corliss. April testified without
objection by the State that the gun was an "old revolver" and
looked like a gun from a western movie. Farrington testified that
Corliss had several "antique guns." Furthermore, April has a .38
caliber bullet lodged near her spine as a result of Corliss' attack
and Corliss' TRO against Betty stated that he and Betty had a .38
revolver in their home. On this record, April's inadmissible
testimony was merely cumulative and, as such, it did not affect the
State's substantial rights. See Hansen v. Hansen (1992), 254 Mont.
152, 160, 835 P.2d 748, 753; Thompkins v. Fuller (1983), 205 Mont.
168, 186, 667 P.2d 944, 953. Accordingly, we conclude that the
District Court's admission of April's testimony was harmless error.
Mistrial Motion
The State argues that Starkenburg presented knowingly false
testimony by April and, therefore, a mistrial was the only adequate
remedy. The District Court considered the parties' oral arguments,
reviewed April's testimony and the expert testimony from Corliss'
criminal trial, and concluded that April's testimony was based on
her overall impression from the criminal trial and an imperfect
memory.
The District Court's rejection of the State's "knowingly false
testimony" argument necessarily involved not only a review of
transcripts, but a weighing of the credibility of both April and
Starkenburg's counsel. We consistently have held that a trial
court acting as a finder of fact is in the best position to
determine the credibility of witnesses, because it observes the
witnesses and their demeanor in person; we are presented with only
a "cold record" for review. See Matter of Seizure of $23,691.00 in
U.S. Currency (1995), 273 Mont. 474, 485, 905 P.2d 148, 155 (citing
State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94); Walden
v. State (1991), 250 Mont. 132, 141-42, 818 P.2d 1190, 1196; Kartes
v. Kartes (1977), 175 Mont. 210, 216-17, 573 P.2d 191, 195. Here,
the District Court observed April during the testimony at issue and
Starkenburg's counsel during the response to the State's allegation
of knowing presentation of false testimony; having done so, it
determined that no false testimony had been presented knowingly.
The State's argument on appeal amounts to no more than a
request that this Court substitute its judgment for that of the
District Court regarding whether false testimony was presented
knowingly. We do not substitute our judgment for that of a trial
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court on such matters. Seizure of $23,691.00, 905 P.2d at 155
(citations omitted).
We hold that the District Court did not abuse its discretion
in refusing to declare a mistrial.
4. Did the District Court err in submitting the
Starkenburg survival action to the jury and in
instructing the jury thereon?
A cause of action which exists during a person's lifetime
survives upon his or her death. See 27-1-501, MCA; Swanson v.
Champion Int'l Corp. (1982), 197 Mont. 509, 515, 646 P.2d 1166,
1169. As a corollary, the decedent's cause of action, commonly
called a survival action, cannot be pursued if the decedent's death
was instantaneous. Swanson, 646 P.2d at 1169; see also Burns v.
Fisher (1957), 132 Mont. 26, 30, 313 P.2d 1044, 1047.
[Where there] is not any appreciable length of time
between the wrong and the death, or, in other words, the
wrong and the death being coincident in point of time,
the instant the wrong is committed the victim of the
wrong has ceased to exist, [then] it seems impossible
that there is any cause of action in favor of such
victim. This conclusion seems inevitable when the
elements which are to be considered in determining the
measure of damages are taken into account.
Dillon v. Great N. Ry. Co. (1909), 38 Mont. 485, 496, 100 P. 960,
963. The personal representative of the decedent's estate may
pursue a survival action on behalf of the decedent's estate and all
damages recoverable in such an action are personal to the decedent.
Swanson, 646 P.2d at 1169.
The plaintiff in a survival action has the burden of proving
that the death was not instantaneous (see Burns, 313 P.2d at 1047),
or, in other words, that the decedent survived the injury for an
appreciable amount of time (see Dillon, 100 P. at 963). "[A]n
appreciable amount of time" can be as short as a few seconds. See
Stephens v. Brown (1972), 160 Mont. 453, 460, 503 P.2d 667, 670-71.
Submission of Survival Action to Jury
Prior to the end of trial, the State apparently made a motion
in the nature of a motion for a directed verdict, arguing that
there was insufficient evidence to present Kimberly's survival
action to the jury. The District Court denied the motion in
chambers prior to convening court on the last morning of trial.
The State contends that the court erred.
A directed verdict is proper only when there is a complete
absence of any evidence which would justify submitting an issue to
a jury, and all inferences which can be drawn from the evidence
must be considered in a light most favorable to the opposing party.
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Werre, 913 P.2d at 630 (citation omitted). Whether there is
sufficient evidence to send a cause of action to the jury is a
question of law. Collins v. Itoh (1972), 160 Mont. 461, 472, 503
P.2d 36, 42 (citation omitted). We review a district court's
conclusion of law to determine whether the court's interpretation
of the law is correct. Werre, 913 P.2d at 631.
The State premises its argument that the survival action
should not have gone to the jury on Starkenburg's failure to
introduce medical evidence as to the cause or time of Kimberly's
death; it points out that no testimony was presented regarding
whether the gurgling noises April heard from Kimberly after
Kimberly was shot the second time represented a sign of life.
Accordingly, the State argues that "[t]here was simply no evidence
that Kim Starkenburg lived for any appreciable period of time after
she was shot." We disagree.
The record contains evidence that Kimberly remained kneeling
beside Brenda and April after Corliss shot her and while he shot
Brenda and April. Corliss then shot Kimberly a second time and she
fell to the floor. Corliss subsequently fled from Farrington's
residence and, when he had gone, April went to Kimberly's aid.
According to April, she could hear gurgling sounds from Kimberly
which sounded "like she was trying to breathe, catch her breath."
Starkenburg's evidence in support of the survival action and
the length of time Kimberly survived was not particularly strong
and the jury could well have chosen to reject it. The evidence was
sufficient, however, to support a finding that Kimberly's death was
not instantaneous and that she survived for more than a few
seconds. See Burns, 313 P.2d at 1047; Dillon, 100 P. at 963.
Moreover, the State cites to no authority under which a
plaintiff in a survival action must present medical evidence to
prove that death was not instantaneous or that the decedent
survived for an appreciable amount of time. While the State
correctly observes that, in Stephens, there was medical evidence
that the decedent lived for a few seconds to a few minutes (see
Stephens, 503 P.2d at 670), nothing in Stephens requires, or even
suggests, that evidence regarding the length of time between injury
and death must be expert medical testimony.
We hold that the District Court did not err in concluding that
there was sufficient evidence to submit Kimberly's survival action
to the jury and in denying the State's motion for a directed
verdict.
Jury Instruction
The State argues that the District Court erred in instructing
the jury on the survival action. As previously stated, a district
court has discretion in instructing the jury and we will not
reverse the court on the basis of alleged instructional errors
absent an abuse of discretion. Werre, 913 P.2d at 635 (citation
omitted).
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Instruction No. 20, as given by the District Court to the
jury, provides:
If you find that Kimberly Starkenburg's death was not
instantaneous, your award to her estate should include
the present value of her reasonable earnings after the
date of death during the remainder of her life
expectancy; and reasonable compensation for decedent's
conscious mental and physical pain and suffering in the
interval between injury and death.
The State objected to the giving of any instruction at all on the
survival action, arguing that it was error "to instruct the jury on
a survivorship action for [Kimberly's] estate where there is no
credible evidence within the record of this case to allow [a]
survivorship action to go to the jury." In other words, the
State's objection mirrored the basis for its motion for a directed
verdict, which the District Court previously had denied. We
concluded above that there was sufficient evidence of record to
submit the survival action to the jury. For the same reason, we
conclude that the District Court did not abuse its discretion in
giving Instruction No. 20 over the State's objection.
The State subsequently advanced two objections to the
substance of Instruction No. 20, one in the District Court and one
in this Court on appeal. The additional objection to the
instruction in the District Court was made after the jury had been
instructed, but before deliberations began. The State's argument
was, at best, confusing and is susceptible of two interpretations.
The State may have been arguing that the question of whether death
was instantaneous was a threshold legal question for the trial
court; alternatively, it may have been arguing that the jury was
required to find affirmatively that Kimberly "lived for an
appreciable amount of time" rather than to find, in the language of
Instruction No. 20, that Kimberly's "death was not instantaneous."
On appeal, the State argues that Instruction No. 20 was erroneous
in two respects relating to Starkenburg's burden of proof on the
survival action.
We need not address the timeliness of the State's substantive
objection to the instruction in the District Court after the jury
had been instructed. We also need not concern ourselves with
attempting to ascertain the precise nature of that objection or
whether any authority exists in support of the objection regardless
of which way it is read. Finally, we need not resolve whether the
State's burden of proof contentions on appeal with regard to
Instruction No. 20 constitute a change in theory on appeal or an
issue raised for the first time on appeal.
Rule 51, M.R.Civ.P., provides that "[n]o party may assign as
error the failure to instruct on any point of law unless that party
offers an instruction thereon." Here, the essence of the State's
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substantive objections in the District Court and this Court is that
the trial court should have instructed the jury that it was
necessary to find that Kimberly lived an appreciable amount of time
before damages could be awarded on the survival claim. The State
did not propose an instruction on this point, however; indeed, it
did not propose any instructions relating to the survival action.
Thus, it cannot assign as error the District Court's failure to
instruct specifically on the "appreciable amount of time" element
of a survival action. See Werre, 913 P.2d at 636.
The State maintains that Rule 51, M.R.Civ.P., does not
preclude it from asserting substantive errors relating to
Instruction No. 20 because of the timing of instruction-related
matters in the District Court. It states that it did not have an
opportunity to offer instructions because the court only decided on
the final day of trial to give a survival instruction and, at the
time the court advised counsel of the substance of that
instruction, the instruction was not available in written form for
review. Based on the record before us, we reject the State's effort
to avoid the application of the Rule 51, M.R.Civ.P., bar.
The trial of this case was scheduled for August 7, 1995. On
July 21, 1995, the District Court advised the parties that proposed
instructions were to be submitted as soon as possible. Starkenburg
submitted proposed instruction nos. 1 through 37 on July 20, 1995;
the State filed proposed instruction nos. 1 through 28 on the same
day. Thereafter, and through August 16, the parties submitted
additional proposed instructions.
Starkenburg's proposed instruction no. 37, submitted on July
20, 1995, was a proposed instruction on damages in the event the
jury had found for plaintiffs on the question of liability. With
regard to the survival action, that proposed instruction provided
as follows:
(4) Your award should include reasonable
compensation to decedent's estate for:
reasonable compensation for damages suffered by
decedent if you find death was not instantaneous.
(Emphasis added.) The cited source for the entire proposed
instruction was Montana Pattern Jury Instructions (MPI) 25.20
through 25.25 (Civil). The quoted portion of Starkenburg's
proposed instruction no. 37 is, in fact, a verbatim reiteration of
MPI 25.25, captioned "Damages--Survival Action." Thus, as of July
20, 1995, the State knew, or should have known, that the "not
instantaneous" language was being proposed with regard to the
survival action; indeed, the State should have known that the
language was taken directly from the MPI. Notwithstanding the
content of this proposed instruction, the State did not submit a
supplemental proposed instruction containing the "appreciable
amount of time" language with others it filed on August 14, 1995.
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In addition, the District Court and the parties began settling
instructions informally on the evening before the final day of
trial; the "not instantaneous" proposed instruction was before the
court and the State at that time. Prior to convening court the
following morning, the District Court ruled on pending motions and,
as the State correctly maintains, advised the parties that it was
revising the proposed instruction to add a clarification that, if
the jury found that Kimberly's death was not instantaneous, it
should include various elements of damages in its award to her
estate. While the revised instruction was not available in written
form for review, it is clear from our brief summary of the record
that the "not instantaneous" language was not a new addition which
prevented the State from proposing instructions on the issue.
Indeed, Instruction No. 20, as given to the jury, provided in
pertinent part:
If you find that Kimberly Starkenburg's death was not
instantaneous, your award to her estate should include
[various elements of damages].
(Emphasis added.) This language is a mere reordering of the
language contained in Starkenburg's proposed instruction no. 37 to
clarify that the jury could not award damages in the survival
action unless it had first determined that death was not
instantaneous.
The State's final argument regarding its failure to offer a
proposed instruction countering the "not instantaneous" language is
that the District Court only decided on the final day of trial to
instruct on the survival action; it seems to suggest that it was
caught unaware for purposes of applying Rule 51, M.R.Civ.P.,
because the District Court did not rule on its pending motion for
a directed verdict on the survival action until that day. This
argument is entirely without merit. Neither the State nor any
other party can fail to offer proposed instructions on a pleaded
claim in the hopes of obtaining a directed verdict and then, after
such a motion is denied, bootstrap itself around application of
Rule 51, M.R.Civ.P. On this record, it is clear that Rule 51,
M.R.Civ.P., bars the State from asserting error regarding the
substance of Instruction No. 20. Accordingly, we hold that the
District Court did not abuse its discretion in instructing the jury
on the survival action.
Affirmed.
/S/ KARLA M. GRAY
We concur:
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/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ ED McLEAN
Judge of the District Court,
sitting for Justice William E. Hunt, Sr.
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