Wenger v. State Farm Mut. Auto. Ins. Co.

403 Mont. 210

483 P.3d 480

2021 MT 37

Diane WENGER, Plaintiff and Appellant,

v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee.

DA 20-0067

Supreme Court of Montana.

Submitted on Briefs: November 18, 2020

Decided: February 16, 2021

Rehearing Denied: April 12, 2021

For Appellant: James G. Hunt, Patrick T. Fox, Hunt & Fox, PLLP, Helena, Montana

For Appellee: Matthew B. Hayhurst, Natasha P. Jones, Boone, Karlberg P.C., Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Diane Wenger appeals a Lewis and Clark County jury's verdict that Travis Elbert was not negligent when he struck her with his vehicle as she was crossing Main Street in East Helena after dark. Wenger seeks a new trial because the District Court (1) improperly restricted her counsel and witnesses from discussing Montana's driving statutes; (2) unfairly prejudiced her when it admitted irrelevant medical records; and (3) prohibited her from arguing to the jury from an instruction the trial court had agreed to give. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On the evening of January 25, 2014, Diane Wenger and her friend Toni Rickman ate dinner at Yat Son's restaurant in East Helena.

Wenger did not drink any alcohol that night, but Rickman did and was intoxicated as the pair left the restaurant. After walking out of Yat Son's around 7:30 p.m., Wenger and Rickman crossed the road in front of the restaurant about mid-way between the two intersections abutting the block. There was no marked crosswalk. As Wenger neared the other side of the road, she noticed Rickman stumbling. Wenger then turned back in an attempt to help Rickman and was struck by a car driven by Travis Elbert. Elbert's headlights were on, and he was traveling at or below the posted twenty-five m.p.h. speed limit. The Montana Highway Patrol and East Helena Police responded to the accident and ultimately cited Wenger for violating § 61-8-503(3), MCA.¹

¶3 Wenger was injured in the accident. She eventually resolved her claims against Elbert, who did not admit fault or liability. Wenger then filed this action against her automobile insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), seeking recovery of underinsured motorist benefits. She alleged that Elbert's negligent driving caused the collision and her injuries.²

¶4 The First Judicial District Court tried the case before a jury. Wenger maintained that Elbert was inattentive and had enough time to stop his car once he saw her. State Farm defended on the primary theory that, once Wenger came into view of Elbert's headlights, he did not have enough time to see and fully stop before hitting her. State Farm claimed that Wenger was at fault because she was wearing dark clothing, did not cross at an intersection, and did not look for traffic before turning back to assist Rickman. The jury found Elbert not negligent. It did not reach issues of causation, comparative negligence, or damages.

STANDARD OF REVIEW

¶5 We review for an abuse of discretion a trial court's rulings related to trial administration, the scope of examination, opening statements, and closing arguments. Konitz v. Claver , 1998 MT 27, ¶ 32, 287 Mont. 301, 954 P.2d 1138 ; see also State v. Harlson , 2006 MT 312, ¶ 62, 335 Mont. 25, 150 P.3d 349 ("[w]e review a district court's ruling on the admissibility of testimony for abuse of discretion"); Jacobs v. Laurel Volunteer Fire Dep't , 2001 MT 98, ¶ 12, 305 Mont. 225, 26 P.3d 730 ("The authority to grant or deny a motion in limine is part of the inherent power of a court to admit or exclude evidence[;] we will not overturn a district court's order in limine absent an abuse of discretion."). We likewise review a district court's ruling on the admission of evidence for abuse of discretion. Jarvenpaa v. Glacier Elec. Coop. , 1998 MT 306, ¶ 12, 292 Mont. 118, 970 P.2d 84 ; see also Daley v. Burlington N. Santa Fe Ry., 2018 MT 197, ¶ 3, 392 Mont. 311, 425 P.3d 669 ("The district court has broad discretion in determining the admissibility of evidence." (internal quotations omitted)). We review the trial court's legal conclusions for correctness. Comm'r of Political Practices for Mont. v. Wittich , 2017 MT 210, ¶ 14, 388 Mont. 347, 400 P.3d 735.

DISCUSSION

¶6 1. Did the District Court improperly restrict counsel and witnesses from discussing Montana's driving statutes?

¶7 Wenger maintained from the outset that Elbert was negligent for breaching his common-law duty of care and was negligent per se under § 61-8-504, MCA. Section 61-8-504, MCA, reads:

Notwithstanding 61-8-501 through 61-8-503, an operator of a vehicle shall exercise due care to avoid colliding with a pedestrian or with a person propelling a human-powered vehicle or using an assistive mobility device upon a roadway, shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing a child or an obviously confused, incapacitated, or intoxicated person upon a roadway.

¶8 State Farm countered that Wenger was contributorily negligent per se for violating § 61-8-503(1), MCA ; it filed a motion for partial summary judgment seeking a ruling on the matter. Section 61-8-503(1), MCA, reads: "[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway." Wenger objected to any characterization of this as a "jaywalking" statute, a term both law enforcement and State Farm had used. The District Court agreed with her that the term "jaywalking" does not appear in § 61-8-503, MCA. In its Order on Pending Limine and Pretrial Motions ("Order"), the court granted Wenger's motion to preclude State Farm from using the term "jaywalking" in the presence of the jury.

¶9 In the same Order, the District Court reserved ruling on any potential use of undisclosed evidence or hybrid witness opinion testimony by State Farm until such evidence was presented at trial. Relying on Heltborg v. Modern Machinery , 244 Mont. 24, 30-31, 795 P.2d 954, 957-58 (1990), the District Court additionally ordered that "neither Wenger nor State Farm shall be allowed to introduce testimony regarding Montana's driving statutes, laws, their interpretation, or apply the law to the facts in an answer." Finally, the District Court ordered that "neither Wenger nor State Farm shall seek to solicit testimony from any witness as to any ultimate legal issue or conclusions to be determined by the jury." Both parties agreed that §§ 61-8-503(1) and 61-8-504, MCA, controlled and should be given as jury instructions.

¶10 Wenger claims the District Court misapplied Heltborg's holding by prohibiting testimony or discussions regarding Montana statutes from voir dire through the close of evidence. Wenger argues that because of the court's Order she did not attempt to introduce to the jury a statutory standard of care. This put her at "a significant disadvantage" because she bore the burden of proof but could not "provide the framework for the jury to understand the applicable standards of care." Wenger maintains that the court's ruling unfairly hamstrung her ability to discuss driver and pedestrian duties.

¶11 In response, State Farm argues that Montana law generally prohibits counsel from making legal statements to the jury or arguing jury instructions outside of closing arguments and further prohibits witnesses from offering legal opinions or conclusions at trial. Additionally, State Farm points out Wenger's agreement that the given jury instructions correctly informed the jury on Montana law, and she does not dispute that the jury is presumed to have followed those instructions. State Farm concludes that the District Court acted within its discretion in limiting discussion of Montana statutory law; it argues alternatively that any error did not affect Wenger's substantial rights.

¶12 Wenger pleaded both common-law negligence and negligence per se theories against State Farm. "A negligence action has four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages." Henricksen v. State , 2004 MT 20, ¶ 20, 319 Mont. 307, 84 P.3d 38 (citation omitted). "Existence of a duty is a question of law determined by the court." Morrow v. Bank of Am., N.A. , 2014 MT 117, ¶ 33, 375 Mont. 38, 324 P.3d 1167 (citation omitted). Once a duty is established, "the breach of that duty is a question of fact to be resolved by a jury."

Morrow , ¶ 33 (citation omitted). In an ordinary negligence matter, the jury determines if a person breached a duty by applying the standard of care to the facts of the matter. Hanson v. Edwards , 2000 MT 221, ¶ 31, 301 Mont. 185, 7 P.3d 419. The standard of care for ordinary negligence is "reasonable care"—how "an ordinarily prudent person would act under the circumstances." Hanson , ¶ 31 ; see also Okland v. Wolf , 258 Mont. 35, 40, 850 P.2d 302, 306 (1993).

¶13 Under a negligence per se theory, a person's breach of duty is established as a matter of law, generally through a statutory violation. Giambra v. Kelsey , 2007 MT 158, ¶ 46, 338 Mont. 19, 162 P.3d 134 (citing Black's Law Dictionary 1057 (Bryan A. Garner ed., 7th ed., West 1999)). The effect of a negligence per se finding "is to stamp the defendant's conduct as negligence, with all of the effects of common law negligence, but with no greater effect." Giambra , ¶ 46 (citing Keeton, The Law of Torts § 36, at 230). The plaintiff still must prove causation and damages. See Giambra , ¶ 46 (noting that the "causal relationship between the violation and the harm to the plaintiff" and "defenses of contributory negligence, and assumption of the risk" remain open (citing W. Page Keeton et al., The Law of Torts § 36, at 230 (5th ed., West 1984))).

A. Voir Dire

¶14 Wenger asserts that the District Court's Order limited her voir dire questioning of the jury on the laws governing driver and pedestrian responsibilities and prevented her from...