Coulthard v. Cossairt

86 744, (1987); credibility may for the fact although A.2d 333 Dean, 129 N.H. 533

v. State, 431, finder, Nev. 596 P.2d v. 95 “this does not mean that and Ward [fact liberty, guise is at under the finder] witness, credibility passing upon the of a of this character decision Within the disregard testimony, when from no rea- agen administrative initially an which was open point of view is to doubt.” sonable I would reverse because cy adjudication, Dr. testimony of neither Madden nor substantial evidence presented claimant Krause, claimant, Michael J. was contested fund none. Hohnholt v. and the state’s factually disproved except advocate Co-op, 784 P.2d 233 Elec. Power Basin and inclusive cross-examination argument Few, indeed, are the wizards to create inconsistencies. directed can, by mastery of cross-ex the law who amination, factually win determinable any Lacking significant, substantial evidence. Fewer far are without cases objection to claim evidence to sustain can, preclusive unless a rule of who those to have I find the claimant payment, would exist, succeed in administrative does law run, he and re- the race because did won will since the claimant agency proceedings finding unsupported verse the which is testify provide signifi always almost hearing record. In re evidence within the In re Use Tax Assess evidence. See cant 32950, No. Use Tax Assessment 32950, P.2d 1232 and cases No. ment therein, including Dickinson v. Unit cited 152, 389, States, 74 S.Ct. 346 U.S. ed (1953) and N.L.R.B. v. Walton L.Ed. 132 853, 7 Co., 82 S.Ct. 369 U.S.

Mfg. (1962). This was a factual

L.Ed.2d 829 appellee ran the race and Appellant

case. gate. I starting to leave

chose not critique or demean the slow

would appellant, to the case of if that were speed, COULTHARD, Appellant Max victory to the non-runner. award (Defendant), medical witness and his Both the worker v. supporting the award. provided (Plaintiff). COSSAIRT, Appellee Tax Assessment No. Garth In re Use the state fund P.2d at 1234. Since Finnerty, and Joe Garth COSSAIRT evidence, I contesting would supplied no (Plaintiffs), Appellants hearing examiner’s conclusion reject totality effectively disregarded the conclu record. His factual the entire COULTHARD, Appellee Max “[ujnsupported by substantial were sions (Defendant). 16-3-114(c)(ii)(E). See W.S. evidence.” 89-230, Nos. 89-231. Machinery v. Wortham Ludlow suspi Wyo. Wyoming. Supreme Court De addressed in Vandehei cion which Wyo ’n Service Com velopers v. Public Dec. (Wyo.1990) and Ed ming, Harris, (Wyo.1964), P.2d 87 wards worst, not a This was prevails here. conflicting expert medical providing

case Sheridan,

testimony. City See Bocek v. Rather, the evi- 432 P.2d 893

dentiary posture fit with of the case would principle Chesapeake announced in Martin, Ry. Co. v. 283 U.S.

& O. that, 453, 456, (1931),

51 S.Ct. 75 L.Ed. 983 (argued), A. Lewis

Rebecca John J. Applegate, Metzke Cheyenne, of Hirst and for Coulthard. (argued),

John E. and Bruce B. Stanfield Smith, Scott, Waters of Stanfield & Lara- mie, appellee Cossairt. CARDINE, C.J.*,

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Justice. Appellant appeals Max Coulthard a $1.7 appellee million award to Garth Cossairt injuries sustained Cossairt when Coul- thard’s vehicle went off mountain road in Cossairt, Albany County. joined by anoth- plaintiff original proceeding, er in the rais- concerning computation es issue cross-appeal. costs on respects. We affirm in all phrases Coulthard the issues the fol- lowing way: “A. err in directing Did the trial court liability against regarding de- fendant/appellant Coulthard al- and not lowing jury make a determination comparative regarding negligence plaintiff/appellee Cossairt? “B. in denying Did the trial court err defendant/appellant Coulthard’s motion judgment? for new trial or amendment of “C. the verdict and a Was excessive passion prej- result of the influence udice? supported by

“D. the verdict suffi- Was cient evidence?” Finnerty cross-appeal, On Cossairt following raise the issue: “[Wjhether Wyoming adopt should a rule whereby trial courts are allowed discovery expenses review activities and the discretion award dis- covery appropriate cases.” costs

FACTS Coulthard, Cossairt, July On Finnerty, Schrawyer, Kirk and Mike Joe argument. at time of oral Justice * Chief seat,

Chesnut went to Mountain Home to cele- throwing him into the back of the Schrawyer’s brate upcoming wedding truck. Acting threatening loud, Coul- party. declared, They bachelor had thard going decided to rent “I’m to be the cabin, spend celebrate and one to night drive that truck.” The others felt driving order to avoid following enough by get home intimidated this to into the planned truck drinking party. as well. participant trip As one As with the it, area, put fishing “at the great time that seemed like a Chesnut rode in the cab truck, and idea.” It did the other way. not turn out three rode in the back. From off, original plan moment Coulthard called for all five men took driving scared the riding to ride three from Laramie to Mountain Home in the back Driving truck. Coulthard, per at about 40 miles however, Chesnut’s vehicle. curvy, hour on a road, gravel washboarded also drove his truck for a reason not readi- Coulthard caused the truck to fishtail and ly apparent from the record. Before leav- slide around the turns. banged Cossairt Laramie, ing they purchased beer and whis- his hands on the roof and rear window of key, kept which was in Coulthard’s truck. yelled attempt cab and in an get to way Home, theOn to Mountain both ve- Coulthard to Schrawyer joined slow down. stopped, hicles and the men smoked mari- him in banging yelling and when Coul- juana whiskey. and drank Coulthard was thard respond did not pleas. to Cossairt’s drinking also driving while to Mountain Home. going After through six or seven curves manner, in this the truck become airborne Although they specific had no agenda for Cossairt, as went off the road. Coul- party, they stay intended to at the thard, Schrawyer Finnerty and were they cabin had rented the entire time. Af- thrown from the truck. cabin, ter spending a little time at the Coul- suggested they Everyone thard injured extent, visit his uncle was who to some highway. uncle’s, lived across the with Cossairt sustaining At his the most serious Coulthard, injuries. Schrawyer, who was the who attended to one who Coss- accident, airt brought Finnerty after the fishing gear, suggested they ob- go gash served a fishing. part Cossairt’s head and Coulthard’s uncle recommended missing. of his calf Pelton Cossairt was taken to good place They Creek as a to fish. Hospital Laramie, Ivinson Memorial drove there in Coulthard’s truck with Coul- where it was feared he would not survive driving, thard riding Chestnut in the cab of injuries. his transported by He was then truck, riding the other three in the Collins, helicopter hospi- to Fort Colorado back. hospitalized days, tal. He remained for 33 had drunk at eight Coulthard least cans including five in intensive care. of beer and half of a fifth whiskey by injuries perma- Cossairt’s left him with they fishing the time arrived at the area. damage nent physical brain disabilities. time, fishing Instead of all the Coulthard part His skull was fractured and of his spent wrestling some time with Chesnut in difficulty brain was He removed. has piles droppings. of cattle When it came speaking forming sentences. He has cabin, one, except time to return to the no difficulty using right arm. his His knee himself, for Coulthard wanted Coulthard to susceptible is unstable and to osteoarthri- drive because of his obvious intoxication. testing following tis. Academic the acci- got Cossairt into the driver’s side of the places percentile dent him in the bottom vehicle and told Coulthard that he should language In and mathematic skills. Au- not drive. Coulthard was all-state foot- gust cranioplasty he underwent sur- player reputation being ball with a gery repair to his skull. He had additional tough. quiet person Cossairt was a whose surgery in May knee 1989. sports interest in leaned toward cross-coun- try running skiing. Coulthard re- brought suit Cossairt on November sponded suggestion by slap- answered, admitting Cossairt’s 1987. Coulthard Cossairt, ping pulling him injuries. from the driver’s accident and the He raised de- discovery expert contributory comparative expenditures for wit-

fenses time the ex- expenses, He claimed that his actions ness save for the negligence. injury. proximate perts spent testifying. not the cause The court awarded were injuries resulted $2,268.76 Finnerty requested that Cossairt’s He claimed him in costs. par- joint venture which Cossairt and was awarded $538.00 $205.50. knowledge ticipated with of the obvious requested Schrawyer and was $548.42 danger. apparent Cossairt’s case was awarded $70.00. for trial with the cases of the consolidated passengers. settled

three other Chesnut DISCUSSION Schrawyer before trial. with Coulthard A. Directed Verdict cross-appeal joined in the originally upon own motion on dismissed his matter, preliminary we address As a February that Coulthard failed contention Cossairt’s preserve the decided on directed matters July held in five-day A trial was raising those issues on and offered plaintiff’s three testified continue a new trial. While we motion for At the from other witnesses. allowing the trial recognize the value of rest- plaintiffs’ Coulthard close of law asserted errors of court to correct Upon the presenting a defense. ed without trial, for a new such a through a motion motion, granted the court a di- plaintiffs’ necessary preserve the is not motion finding negligent verdict Coulthard rected appeal. verdict on issue of a directed comparative negligence part on the with no Cf. Motors, 697 P.2d 283 Gregory Harden v. 50(a). The plaintiffs. W.R.C.P. of the See question jury to the on the case went including punitive dam- damages, whether prior pro- The rules existence jury awarded. The award- ages should be mulgation Wyoming of the Rules Civil million, $20,100 Finnerty $1.7 ed Cossairt Appel- Wyoming Rules of Procedure and $6,500. Schrawyer puni- It found that required a motion for a new late Procedure and, fol- damages should be awarded tive bringing assign- made before fi- testimony by Coulthard on his lowing E.g. error before this court. ment of status, punitive awarded $500 nancial Bank, Wyo. 29 v. First National Schmidt damages. However, 651, (1923). 212 P. required as a for a new trial was a motion moved for a new trial or Coulthard grounds for appeal for condition judgment in Cossairt’s case. amendment granted. In re new trial could be which a claimed the million award $1.7 Coulthard 176, 181, Estate, 246 P. Wyo. Austin’s passion or to be the result of appeared (1926). part of the and not prejudice by sufficient evidence. See supported Procedure Wyoming Rules of Civil The (6). 59(a)(4) admit- court W.R.C.P. a court grounds for which enumerate surprised at the size of the it ted was 59(a)(1) trial. may grant a new W.R.C.P. sur- recognized that the court’s but award ground relat- through The enumerated or judgment amend the is no basis to prise closely to a directed verdict is ing most damage Finding the new trial. grant a 59(a)(6), concerns sufficien- which W.R.C.P. by sufficient evi- supported award to be support the verdict. cy of the evidence to passion not the result dence and grant- met for standard which must be “to interfere the court refused prejudice, greater than that ing a directed verdict is jurors wisdom” of the collective Atkins, Cody granting a new trial. does not the motion. Coulthard denied See also Finnerty and Schraw- the awards contest Miller, Federal Practice and Wright & yer. Procedure: Civil § “ wholly is insuffi- the evidence the court awarded costs When In October verdict, duty it is the support a requested cient plaintiffs. Cossairt to the three a verdict or trial court to direct some $4,831.19, the court disallowed but n.o.v., judgment that, enter a volition, of his own Cossairt took that But, respect. has no discretion that fateful Even if ride. we consider the testi granting a new mony trial involves an of Cossairt’s drinking to amount to a element goes of discretion which further scintilla of evidence to Coulthard’s than sufficiency contention, the mere of the evi enough. scintilla is not Car dence. It all embraces which ey, reasons 603 P.2d at 877. The is not integrity system inhere of the jury whether there is no evidence supporting ” itself.’ P.2d at (quoting Tide against the party whom the motion is di Waller, water Oil Co. v. 302 F.2d rected, rather whether there is evi (10th Cir.1962). upon dence jury properly could find a for that party. Id. higher This allega- standard eliminates the tion grant of an erroneous of a directed Our examination of the record reveals ground verdict as a motion for new nothing that would allow the to find trial. require To that the issue be raised negligence Coulthard on the issue. a motion for a new trial would have no nothing, directs Coulthard us to save Coss- needlessly reasonable basis and would de- drinking. airt’s That evidence does not lay litigation. and prolong Crosslin Cossairt, counter the conclusion that drunk Alsup, (Tenn.1980). 594 S.W.2d 379 We sober, riding the truck will decide the issue directed verdict Appellant his will. cross-examined some of on its merits. presented witnesses. He no evidence of his own. Whether Coulthard successful- reviewing grant In of a direct ly credibility any attacked the those verdict, ed we consider the favor consider, is a matter witnesses we do not it party against able to the whom the motion being readily apparent reasonable directed, giving to all infer reasonable jury could arrive at but one conclusion in Jackson, 868, ences. Carey v. 603 P.2d Jackson, this case. Town 569 P.2d at (Wyo.1979). grant 877 A of ver a directed of hold, therefore, that the We when, dict proper is without the weighing granted properly court a directed verdict considering credibility evidence or the of on the of negligence. witnesses, the evidence is such that is there but one jurors conclusion reasonable B. Motion New Trial Shaw, could reach. Town Jackson v. of 1246, 1250(Wyo.1977). 569 P.2d court A trial This court has broad discretion ruling upon trial, makes its determination without deference when a motion new to the view of the trial court. Danculo and we will not disturb its decision absent 187, Brown, (Wyo. vich v. P.2d of 593 190 an abuse discretion. v. Mer Medlock 1979). rick, 881, deprives (Wyo.1990). Since a directed verdict P.2d 786 883 An parties by of a a determination of the facts abuse of discretion occurs when jury, cautiously such a motion should be error commits an of law under the circum sparingly granted. Cody, Waggoner and P.2d at 658 stances. v. General Motors 1195, Corp., (Wyo.1989). P.2d 771 1201 contends that a new trial Coulthard was contends Coulthard that Cossairt because the verdict was so ex warranted comparatively negligent, per was and the prejudice cessive to be the result or as negligence centage of that should passion part and it jury, jury. been submitted to The evidence by supported not the evidence. support he offers to this contention testi is mony drinking applied that had been be action Cossairt When of a undis jury, “passion prejudice” “anger, fore the accident. evidence is or means however, resentment, hate, reflection, puted, Coulthard that refused absence of dis truck; others, anyone regard rights physical let else drive he and kindred seat; ly Cheyenne removed Cossairt motives.” Ries v. Cab & driver’s Trans Cossairt; 468, Co., Wyo. 104, struck and threw Cossairt in the 79 P.2d 474 53 fer of the truck. No evidence have further these back shows We construed 92 by stating ligent caring jurors.” means and “passion”

terms “moved Union Pacific emotions, feelings may or include 702 P.2d at 1279. Railroad sympathy moving as a influence without reviewing sufficiency of When duty,” and stating conscious violation of verdict, the evidence to our “prejudice” forming to include “the opposite is the that when we approach opinion knowledge without or examina- due pro review the evidence to determine 53, Glenn, Wyo. tion.” v. Valdez of a directed deter priety verdict. When P.2d mining supported whether a verdict is evidence, the evidence assume jury’s determination of the true, party favor of successful to be damages absent an amount is inviolate entirely the leaving out of consideration inadequate as award so excessive or conflict, every assigning shock the and to raise conscience inference the evidence of the favorable preju passion, an irresistible inference party reasonably that can be successful dice, had improper or other cause invaded Medlock, 786 fairly drawn from it. Booth, the trial. Brittain v. P.2d at 883. also Union Pacific Richards, Railroad Co. Damages proven must damages (Wyo.1985). The amount of 1278 “ however, degree certainty; a reasonable man ‘must be so excessive as to strike damages required. exact proof of kind, blush, being beyond the first all as Buhler, (Wyo. Reposa v. ” outrageous.’ measure unreasonable 1989). met that burden. Cossairt Cossairt Jackson, (quoting P.2d at 1252 Town damages future ex past claimed Southwick, 9 Johnson Coleman treatment; penses for medical care and (1812)). This Am.Dec. standard physical suffering; pain emotional and recognizes range within which disability inability with a to live judge, recognizes must fall and who life; body; enjoyment loss of the normal observed, tried, numer compared has income; capaci earning loss of loss of kind, knowledgeable of this ous cases him proof testimony from ty. His included damages determining a reasonable value witnesses, self, lay experts. The other to be awarded. The substantial evidence doctors, psychol experts included medical us, test was considered but we conclud expert, ogist, vocational rehabilitation vague too What ed it was to be workable. Coulthard, brief, an economist. his may judge evidence to one be is substantial eight different he con lists areas which to not substantial another. On the other unsupported by the evidence. To tends hand, con the test when argument, us at the support his he asks is shocked one has been science is which in a very least to characterize the evidence decades, workable for and we contin found cannot, light most to him. We favorable apply type in this of ease. ue to test not, in that view the evidence and will changed life has been manner. Cossairt’s standard, we cannot Under this dramatically as a of this accident. result passion prejudice that led the conclude Coulson, Buttrey Food Stores Div. v. Cf. million in dam jury to award Cossairt $1.7 549, 555, 20 A.L.R.4th 419 spent delib ages. The six hours some to The evidence sufficient below, erating the verdict. As discussed light. proper in the when viewed presented evidence to sufficient Cossairt damages, any eliminating conten prove Award Costs C. prejudice. evidence that tion of find no We below, plaintiffs passion influ Cossairt to a that Two leads conclusion on the award, Finnerty, cross-appeal center their points us enced this and Coulthard awarding for the conclu that standards The record leads us to assertion to none. that the They are unfair. contend nothing but “the costs sion that verdict is expert witness recovery guidelines intel- product well-reasoned work of twelve discovery inequities to costs lead be- discretion must par be determined litigants. tween ticular facts of the England case. v. Sim mons, 1137, 728 P.2d 1140 (Wyo.1986) purely The matter costs is Finnerty Cossairt and contend the court statutory. Mitchell, Weaver awarded costs based on somewhat me (Wyo.1986). Two statutes are application guidelines chanical cited to the relevant award of costs fail, however, They above. to cite the l-14-102(b) Wyoming matter. Statute al to support record the contention that such payment expert lows for the witness application would amount to an abuse of fees and the charging those costs discretion discovery and establish that the party. That statute states: expenditures not awarded as costs were case, any “In any party civil or criminal reasonably necessary. We repeatedly may expert testify call to witnesses litigants comply cautioned to with the any if the court finds witness to abe requirements record citation of W.R.A.P. qualified expert expert gives and the ex- See, e.g., 5.01. Jung-Leonczynska v. Ste testimony pert is admitted as evi- up, (Wyo.1989); 782 P.2d Condict expert dence in the witness Condict, 89-51, No. Order dismissing fees twenty- shall be allowed witness 1990). appeal (Wyo., Jan. sup Without ($25.00) day per five dollars or such other record, port we are unable to find according amount as court allows to any abuse of discretion. Expert the circumstances of the case. plaintiffs further argue that may charged 'witness fees costs litigants discovery needlessly some use against any party apportioned or be purpose causing opposition to among parties some or all in the discre- spend so money participating much in the tion of the court.” discovery process litigation that the cost of phrase “such other amount as the expensive. prohibitively They becomes according court allows to the circumstances urge adoption that of a rule would allow gives the case” the court discretion in recovery many discovery expenses determining the amount to award. Stauf prevent plaintiffs this. The do not claim Curry, 778 P.2d Chemical Co. v. fer they prejudiced were the amount of This amount should be discovery preparation conducted in for this spent actually testify limited to time Thus, trial. this issue discuss would ing charges pre and should not include opinion advisory amount to an which we spent during trial conferences or time ordinarily eschew. Wyoming Health Ser waiting testify. while Hashimoto v. vices, Inc. v. 773 P.2d Deatherage, Pipe Marathon Line slightly We deviate from this (Wyo.1989). Wyoming Statute 1-14-126 rule, however, to note abusive dis grants further discretion covery brought tactics can and should be awarding, taxing See W.R. costs. also attention of the the the court has 54(d). Although we delineated some C.P. discovery. power to control W.R.C.P. examples showing awarding for when costs 26(c). Miller, Wright & See Federal warranted, discovery expenditures is Weav Practice and Procedure: Civil § er, 715 P.2d at court has discre Pollack, Discovery See also —Its making provided tion the ex award Correction, Abuse and 80 F.R.D. 219 “reasonably penditures required for tri Hashimoto, preparation.” al 767 P.2d at by We find no error committed the trial on directing the verdict the issue Because the award of costs is denying negligence, of Coulthard’s court, the discretion of the trial within motion, in awarding new trial costs. not disturb decision in will the court’s this respects. ease is affirmed in all This of an showing absent a abuse of matter URBIGKIT, C.J., specially discretion. files Chemical Stauffer concurring opinion. 1105. Whether the court abused its Justice, Justice, URBIGKIT, specially dissenting; v. Vander Clarke Chief meer, (Wyo.1987); and concurring. 740 P.2d 921 DeJu Foster, 715 P.2d 182 lio v. concur, analysis I write further but injury in this case reason- proven that the Three serve for illustration. First cases damage award and we ably justified the Booth, (Wyo. 601 P.2d 532 is Brittain v. test for what apply an extreme need not 1979), justify the rule was used to where reasonably determined fairly and was $10,000 injury personal after award I our Specifically, jury verdict. $7,800 in medical ex the incurrence of responsibility in judicial lack of continued clearly case was penses. The result encompassed char- supervision within My judicial would justice. not conscience “shock[ing] acterizations now, then, certainly is have been conscience”, inference that “an irresistible $5,100 resulting net of the shocked at the improper cause prejudice other passion, person injured award where the suf actual excessive as or “so had invaded trial[ ]” thirty-five forty percent total fered a blush, mankind, first at the to strike disability. cannot then be related Brittain unreasonable or being beyond all measure $425,000 award the Union suggest I we abandon this outrageous.” Company injury dam Pacific Railroad requirement that an language because a further crite ages where this court added appellate jurist’s “shock” an award must justification ria of “erroneous basis” to merely is no standard because conscience “passion, prejudice or test. bias” Un appellate outcome. It is a personalizes the Richards, 702 P.2d ion R. Co. v. Pacific except that exists without boundaries test (Wyo.1985). Neither of 1278-79 the trial the mores of those intrinsic to can be correlated to the reduc these cases con- appellate court as decisional judge or against the suc impressed by tion remitter political cepts personal persuasion plaintiff in cessful Town Jackson proclivity. Shaw, (Wyo.1977), 569 P.2d 1246 where revealed within the The intrinsic facts stated, not accord with the rule was but did Wyoming cases convince recent course of If made in verdict. Town reduction an asserted test of application me that appellate a reasonable deci Jackson judicial conscience is a non shock to the sion, certainly there is no semblance a result reality serving standard justice test in reason and fairness for same by appli oriented, unprincipled disposition Unneces in either Brittain Richards. I have decision. cation of unboundaried extremity language in criteria sarily, subject when the on this written before adjudica oriented invites not result justified lia jury verdict itself was tion, discriminatory and uncontrolled concern apply equally the same bility results. insuffi either an excessive or as a test for society,2 maintenance In this accelerative v. Mer damage award. Medlock cient requires vigilance so Urbigkit, jury system rick, (Wyo.1990), P.2d 881 differently, professional that he said al career scenarios Although phrased somewhat reasonably expected approach perception have been that is advanced could appeal court in Christopher the Minnesota school records was defined based on his injury By analysis Erickson an ATV parents' There educational achievements. Through Honda Motor v. American Bunker the dam- evidence to was sufficient (Minn.App.1990): 78 455 N.W.2d disability impairment ages pain for Second, argues is no com- earning capacity. there Burnsville of future damages the petent to Goldberg, Bridging dialogue the 2. See the impairment disability of future pain 1990), (Sept. where Ro- Gap, J. 46 76 A.B.A. |22,000 jury earning capacity. The awarded recognized: berta Ramo $90,- disability, damages past pain and changed. Both the com- itself has $688,- law [T]he disability, pain and 000 for future change plexity rate of of the law and the earning capacity. The 000 for loss of future the last decade that it is accelerated in so were verdict amounts court found the trial It virtually impossible to teach the law. is parameters potential dollar within the well * * * acquire increasingly and maintain difficult to agree. the and we for the facts of any we don’t under- competence in area. If psychologist presented sever- A rehabilitation caused, rationality intangible damages. that are retained. relevance which includes My persuasion judi- Cheyenne, remains constant that City Martinez v. 791 P.2d required cognitive 949, cial is when action the (Wyo.1990). jury The to is asked provide justice. the jury filters of do appropriate determine the damages and Medlock, 881; Clarke, P.2d See only upon should be reversed a clear show- 921; DeJulio, P.2d 715 P.2d We ing of abuse of discretion. Because we rationality apply jury should to test have said “abuse of discretion has its as supervision, verdict not absolute uncondi- point query anchor the of ‘whether the acceptance except particular- tional when jury] reasonably court could conclude [or ” disregard ized for a rule case features call did,’ State, it as v. Oien P.2d and result oriented decision. See Cates v. (Wyo.1990) State, (quoting Noetzelmann v. (Wyo.1983). P.2d Eddy, 669 (Wyo.1986)), our review give could deference to the decision of the my It contention we should substi- fact finder where some evidence exists in recognition tute a rule of reason and support. The dispositive the record post- properly exercised discretion for the our standard review would judicial event shock to the conscience su- if jury reasonably ask the could pervisory applied jury review test for ver- conclude assessment, all recognize In did if favorable inferences are dicts. should position provided jury by the accorded taken separate by jury. function the the general damages spe- This evaluation of would be similar to the standard now damages require- Cody cial as its deliberative used to review a directed verdict. Atkins, ment. Standards for review should exist ar- I identically emplaced whether trial our gue use of the “shock [to] answering court in motions for a new trial conscience” standard reflects an inade- judgments notwithstanding or quate appreciation of the function we have appellate assessing and, or court perform fact, jury asked the to has of the trial court for exercised discretion jury performance appro- no relation to or im- appellate direct review of contended judicial supervision. priate proper verdict. proposed these use of standards special damages or be as-

Actual could ap- review would streamline our review of sessed in review under our traditional sub- peals judg- for motions for new trials or general stantial evidence standard and notwithstanding ments the verdict when damages could reviewed within the grounded on or those motions are excessive province jury to exercise discretion inadequate Cody, 658 jury awards. See intangi- alignment and allocation of the 63-64. Such standards review hurt, pain bles of and future loss. Review appellate court’s attention would focus the damage appropriate of actual awards are the function of the trial court when on substantial evidence standard be- under the ruling for new on these motions trial damages cause such are calculable notwithstanding the judgments verdict. Boyd at trial. the evidence available See to defer expect the trial court to We State, ap- 747 P.2d 1143 ruling these motions fact finders when propriate review of the standard of notwithstanding judgments for new simply could whether there function ask Medlock, 786 P.2d at verdict. justify the was substantial evidence to standards, proposed we could Under award. expect recognize also the trial to estimate discretion utilized general damage are Review awards plaintiff. harm to the From the van- appropriate recognition of a dis- also under deference, the tage point cretionary of such additional such determination because determine that the size precise trial court could damages subject are not calcula- jury’s discre- designed compensate an award was abuse tion and only award could not be reason- proximately victim in full for harm tion if the all that, missing change practice. stand then we’re a fundamental by assuming “the evidence in ably justified sive verdict. The first of these is the true, party the to be judge, favor of successful deference due the trial who has entirely leaving of the out consideration the opportunity had the to observe wit- conflict, assigning every and evidence to evidence nesses and consider the favorable inference to the evidence the of a rather living the context trial than reasonably party that can be successful upon a cold The second factor record. fairly drawn from it.” Crown Cork & and given the deference to properly the Co., Beverage Corp., Inc. Admiral Seal jury’s matters of determination of such 1982). (Wyo. weight fact as the of the evidence and quantum damages. the appellate the court could then Review for by the trial the same standard used be Lassiter, re- 349 So.2d at 627. The court granting denying judgment the viewed the trial its abuse court under notwithstanding the verdict or motion discretion standard. or inad grounded trial on an excessive new obsequiousness granted The review equate verdict. The standards of judicial “shock the conscience” standard of easily the same and identifiable would be review for awards arose Coleman appellate the court—if the cannot Southwick, 6 Decisions American discretion in said to abused its be (N.Y.1812). There the editor of the New award, making judgment its then a not Evening publisher the York Post sued withstanding the motion for new verdict or Albany Register Following The for libel. or inade grounded an excessive $1,500 a an award of motion for and a new of discre quate verdict would be an abuse trial, appealed. the defendant That court part of the the trial court. Lassiter tion on damages indicated: “The En Operating v. International Union of proper peculiar province within the and well, (Fla.1976). 349 So.2d 622 As gineers, jury. the It rested in their sound discre appellate say if an court could tion, under all circumstances of after was an abuse of discretion * * added). (emphasis “ *.” case Id. at 257 ‘the in favor of the assuming there, opinion today’s stan Had ended true, leaving party to out of successful might dard of review well be “abuse of in con entirely the evidence consideration discretion;” opinion added: flict, infer assigning every favorable damages unless the are so out- [A]nd party to the evidence of the successful ence every rageous as to strike one with the reasonably fairly drawn that can be ” them, enormity injustice and so as it,’ Wyo. High from Seaton v. State of to induce court to believe Com’n, Dist. way No. prejudice, par- jury must have acted from (quoting v. Dow Chemi (Wyo.1989) Reese cannot, corruption, tiality or consist- (Wyo.1986)), cal ently precedents, interfere with undisturbed. jury verdict would stand the verdict. appear have al- Florida courts to at 257. Id. begun moving in this direction. ready my as an very re- While shocks conscience factors unite to favor Two denying jurist usually reading appellate come review of an order stricted skeptical” opinions3 ground “rights new of exces- trial on motion Elfenbein, arguable majority Myth as a to be in conflict with Conservatism stood conduct, of 71 rights Philosophy, skeptic Iowa L.Rev. that the Constitutional insists case (1986) Rights Sager, (quoting recognition right n. 425-26 be made for the Responses, textual, historical, Skepticism Process-Based under circumstances of (1981) emphasis in majoritari- N.Y.U.L.Rev. original): certainty; structural otherwise prevail. concep- an result must Under this tion, exceptions rights narrowly defined operative rights skepti- aspect crucial “The prevailing general commitment an otherwise its attitude toward the resolution of cism is majority rule. majority systemic tension rule [the] [between lop- paradigm supports this rights]. rights-sup- An hierarchical individual When Rights rights majority will. is under- sided view of porting value of the Constitution opinions the corrosive effects of those on is not without comment and current aca- See, understandings process traditional of due demic example, consideration. in particular within equal protection, many I cannot endorse its excellent arti- such cles, Question Daniels, personalized Jury appropriate reaction to be Com- of petence and the Politics Civil for a standard of review. Justice of Symbols, Rhetoric, Agenda- Reform: recognize We should that in some cases Building, 52 Contemp.Probs. Law & may verdict, what jury be too much for a (1989). Equally impressive analysis of may cases, many by application other operation jury the civil within an rule, justify same conscience shock too society complex accelerated and a social little to be awarded. Powers v. John Cf. system and economic is the extensive son, (Fla.App.1990) 562 So.2d 367 (citing Ansaldi, analysis Texaco, Pennzoil and Hughes, (Fla.App. Butte v. 521 So.2d 280 the Revolt the Masses: A Contracts 1988)); Pursell, Thornburg v. 446 So.2d Postmortem, 27 Hous.L.Rev. (Fla.App.1984); City Hernandez v. (1990) (footnote omitted):4 York, New 156 A.D.2d 549 N.Y.S.2d jury verdict in the Texaco also Tarin City Nat. upheld appeal highly under a defer- Miami, (Fla.App. Bank 557 So.2d 632 review, ential standard of is a classic 1990). case of “the snapping wire back”—a re- ap- I am with a test of comfortable volt of the masses against not so much propriateness judicial results embodied legal order as a whole as in reasonableness and need not encounter legal obligation aberrant vision of my judicial shock of conscience to find presented specialized to them sub- supervisory responsi- cause for exercise of community they belong, to which did not bility reject injustice. I reserve “shock justice dealing a model of having fair judicial deprivation conscience” for [to] no basis in the society. mores of mass rights general of constitutional and lack lawyers What does the case mean to process equal protection specif- of due legal system? Ultimately, signals ic. Additur and remitter should not be place a serious threat to the reserved for dirty justice words delivered to either elite values in contract law. plaintiff or defendant. Of course Even casual review of current cases case, passion applied jury in the protective reveals that the extreme en Any thinking being human decision. would definition, velope provided by this court passionate be called into evaluation of the necessarily by practice, gener if not is not liability injury. facts and the extent of ally jurisdictions. followed in other In re That, however, is not the kind of humanis- law, cent case the state of Idaho has deline right wrong ap- tic concern for here ated in a series of decisions a modernized plied by jury that could character- be adaptation. Galey, Sanchez v. Idaho lacking rejecting ized as either reason or Quick (1986); Crane, 733 P.2d 1234 justification applied justice. (1986); 111 Idaho 727 P.2d 1187 Din Finch, judicial supervision The failure of neen v. 100 Idaho 603 P.2d 575 (1979).5 system American as a defense for the Raveson, skepticism places majoritarian Advocacy Contempt: virtues on a found in higher plane than the Constitutional Limitations on the Judicial Con- different from and Power, tempt rights component political 65 Wash.L.Rev. 477 of our tradition. Rights are viewed in this model as themselves recognized deriving prior majori- It should what shocked from a commitment to rule; may public consequently legislature rights they ty exist because have been easily so shock the conscience. Misin- by political majorities in the course endorsed greatest public mis- formation is the cause of proposal and ratification of the Consti- operation justice conception of the deliv- and its amendments." tution However, realism, ery system. rationality and interesting comparison justice ultimately,

4. An can be made be- unilateral- essential will if not substantively yet logically weighed by public perception ly, tween the dissimilar be defined and comparable subjects topic Texaco with the for which the becomes the immediate ba- many appellate pas- Because issues are re “shock” or “irresistible inference [of] solved under the abuse of discretion stan sion” which could be otherwise left to inter- dard, may improve supervision well our personal relationships. damage award system and blunt the academic jury substantial, to Mr. Cossairt this case was by our traditional stan criticism occasioned damage so caused to him— but example A current will dard of review.6 damage tragic undoubtedly which is Mason, who for illustration. Otis serve lifelong. had leukemia been em died of Again, my complaint ma- is not with the ployed an instructor at the Coast Guard as jority looking a traditional standard of Yorktown, Virginia. Engineering School jury review for awards motions for purchased for his Guard benzene The Coast my new dissatisfaction is with what trials — the school which was a and others at use really those traditional standards of review commonly utilized industrial and com very respectfully urge are. I this court to look amateur and product mercial well-known to to the 1990’s and not to incidental or acci- filed suit professional mechanics. Mason language by-gone dental of a era to enu- supplier of the kit contain against the test jury merate a standard of review and, death, following his ing the benzene awards motions for new trials when plaintiff substituted as his widow was damage the amount of awarded or not action. In the federal the survival question. awarded is decision, awarded million $4 $5,025,000 injuries, for his personal for his wrongful puni death claim and

survivor’s million.7 The result damages $25

tive conscience, my did not shock

shocked Coleman, judge applied who

the trial 253, ratio decidendi of

American Decisions problem economics of inter 1812 to a 1990 ROTTMAN, Rottman, E. R. Leonard Joan Texaco, competition. Mason v. national Rottman, Rottman, David Clarence Su (D.Kan.1990); Inc., F.Supp. 1472 Ma Farms, san Rottman-Bahr D.C. Texaco, Inc., (10th F.2d 242 son (De Wyoming Corporation, Appellants Cir.1988); Corp., 231 Kan. Mason v. Gerin fendants), 718, 647 P.2d 1340 ap simplify our review if We would we' BANK & CITIZENS NATIONAL in principle of deference which is ply the TORRINGTON, TRUST COMPANY OF questions of abuse of discretion. trinsic to (Plaintiff). WYOMING, Appellee Educ., Massillon Bd. Farber v. Cir.1990). (6th Applying the stan F.2d 65 No. 89-271. argue I should be dard review Wyoming. Supreme Court of court, join adopted by the leads me to The di majority affirming the award. Dec. reasonableness, mensions of discretion accompany proposed deference which provide ample space review

standards of my resorting to concurrence without juries Jury Competence, perception Research and Issue rometer. Public that some adversely provide inevitably Contemp.Probs. results will extreme Law & justice juries per- in later affect fair ceptive community reaction. standards and award, approved by 7. The which was snap injustice may The wire back and tend will presiding judge punishment the ma- resulting injustice reactively cultivate to retroactively. corporation selling govern- jor American ordered, of net ment what it had was 0.31% earnings net after worth and 1.92% of annual Ansaldi, generally supra, 6. See 27 Hous.L.Rev. taxes. 840; Daniels, Contemp. supra, & 52 Law 269; Vidmar, Empirical Probs. Foreword:

Case Details

Case Name: Coulthard v. Cossairt

Court Name: Wyoming Supreme Court

Date Published: Dec 14, 1990

Citation: 803 P.2d 86

Docket Number: 89-230, 89-231

Court Abbreviation: Wyo.