N.B. v. Terwilliger, 958 N.W.2d 487

Background

Five-year-old N.B. was struck in the head by a horse on property owned by Kevin Terwilliger; occupants Josh and Samantha (Seewalker) lived there; Melissa Oster is N.B.’s mother and Seewalker’s cousin.
Experts disputed permanency and economic impact: plaintiff experts estimated large future losses and a life-care plan; defense experts estimated minimal or no permanent impairment and far lower future economic loss.
During cross-exam, defense counsel questioned an expert about N.B.’s and Oster’s race and Oster’s income history; plaintiffs made no contemporaneous objections to those questions.
During deliberations the jury asked whether compensation could be placed in a trust; the court answered that what happens to awarded damages is not the jury’s role; plaintiffs had requested the court include a trust instruction but the court declined after hearing the parties and plaintiffs’ counsel said he was "okay with it."
The jury awarded N.B. $25,000 in future economic damages and $5,000 in past non-economic damages; it apportioned fault (Oster 45%, Josh 30%, Seewalker 25%, Kevin 0%). Plaintiffs moved for new trials; the district court denied both motions and plaintiffs appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court’s answer to jury about trusts was an irregularity under N.D.R.Civ.P. 59(b)(1)	Court should have told jury awards for a minor may be placed in a trust; omission prejudiced verdict	No statute required informing the jury; trust creation requires post-verdict petition, notice, hearing	Court: No irregularity—statute gives permissive post-judgment authority; no legal duty to instruct jury about trusts; no abuse of discretion
Whether court erred under N.D.R.Civ.P. 59(b)(7) by refusing to explain where awarded funds would go	Court’s refusal was legal error requiring new trial	No legal error because no law required such an instruction and jury didn’t need it to reach verdict	Court: No error—no legal requirement to instruct on trusts; plaintiffs free to argue trust in closing (which they did)
Whether verdict was rendered under misapprehension of instructions or under passion or prejudice (N.D.R.Civ.P. 59(g))	Low award inconsistent with severe injury evidence; defense’s race/income questioning impermissibly prejudiced jury	Verdict falls within contested expert evidence; improper questions alone do not show verdict was influenced by passion/prejudice	Court: No—verdict not perverse; reasonable given conflicting expert opinions; jury weighed evidence within its province
Whether jury was prejudiced against Oster (affecting adequacy of award)	Prejudice against Oster led to inadequate award for N.B. warranting new trial (Rules 59(b)(5)/(6))	No basis to overcome presumption jurors were fair-minded; evidence supported a low award	Court: No—award had evidentiary support (defense experts); plaintiffs failed to show award lacked any support

Key Cases Cited

Riddle v. Riddle, 2018 ND 62, 907 N.W.2d 769 (standard of review—abuse of discretion for new-trial rulings)
Carroll v. Carroll, 2017 ND 73, 892 N.W.2d 173 (definition of abuse of discretion)
Moszer v. Witt, 2001 ND 30, 622 N.W.2d 223 (court answers to juries are instructional and parties may except)
Bakke v. D & A Landscaping Co., LLC, 2012 ND 170, 820 N.W.2d 357 (failure to object to instructions waives challenge)
Johnson v. Buskohl Const. Inc., 2015 ND 268, 871 N.W.2d 459 (definition of "irregularity" as nonconformance to law)
Nesseth v. Omlid, 1998 ND 51, 574 N.W.2d 848 (jury entitled to fix damages where injuries and future needs are opinion-based)
City of Grand Forks v. Hendon/DDRC/BP, LLC, 2006 ND 116, 715 N.W.2d 145 (upholding awards that fall within ranges supported by evidence)
Kerzmann v. Rohweder, 321 N.W.2d 84 (verdict conformity to evidence negates passion/prejudice claim)
Condon v. St. Alexius Medical Ctr., 2019 ND 113, 926 N.W.2d 136 (inadequate award justifies new trial only when award lacks evidentiary support)