*1 under guardian appointed veteran's majority, by espoused than that
UVGA evi cireumstances as those
least under such majori disagree I with the
dent in this case. Appellants
ty's that these determination es alleged process violations due
use guardianship as
tablishment of the UVGA by protections provided
sword defeat guardian, on and his
the UVGA. Andrews hand, be able to use those
the other should against prepared a deed as a shield
statutes advantage,
by Appellants, sole to their
contrary interests. For these to Andrews'
reasons, affirm the order of would
district court.
Jessica
v. SCHOOL DISTRICT
TETON COUNTY County Dis-
NO. a.k.a. Teton School (Defendant). One, Appellee trict Number County District No. 1 a.k.a
Teton School County
Teton District Number (Defendant),
One, Appellant
v. (Plaintiff). Garnick, Appellee 00-213,
Nos. 00-214. Wyoming.
Supreme of Court 6, 2002.
Feb. vided, paragraph except upon shall not be made that the total debt secured such encum- (60%) hearing entry sixty percent of order of the court after brances not exceed shall hearing property upon petition. at the verified Notice of such the actual cash value of such real given shall be the veterans' administration as time of such investment unless such loan guardian remain insured and while held amended. 3-6-110, in W.S. as Title provided insured, para- housing shall be taken in the ward's name. This the federal administrator right Housing graph Act shall not be construed to limit [12 accordance with the National seq.]; et guardian, U.S.C. bid and ward, on behalf his (iv) purchaser simple real estate at a sale In the entire fee title to real to become the pursuant of real estate in this state and the thereof to decree of foreclosure of estate or lease ward, purchase necessary equipment, at a all but as lien held or for the or tax or sale, ward, right protect or a home his trustee's the ward's a home for sold, property so foreclosed or or at a sale under ward, or to rehabilitate family, dependent decree, necessary protect protect purchase partition interests. Such or lease his provided in of real estate or other investment property. interest in such ward's
1086 *2 00-213, County Teton Case No. School) (the Appellee. District No. 1 is the jury's generally in
Although verdict was favor, her Garnick contends that district during the court committed several errors *3 claim, negligence against trial of her School, require the matter to be re remanded to the district court for versed and trial. In No. 00-214 the a new Case School Appellant Appellee. and Garnick The School contends the trial court Garnick, in award of and erred its costs concedes that the award of costs respects. should be modified in some We 00-213, will affirm in Case No. and we will affirm, modify, but otherwise the award of in costs at issue Case No. 00-214.
ISSUES 00-218, Case No. Garnick raises issues: these A. error committed Was reversible jury, during inspection, an onsite when injury, of the site of the conducted an independent investigation mishap? of the B. Did the trial court commit revers- permitting in ible error evidence of a col- objection? plaintiff's lateral source over C. Did the trial court commit revers- juror error when it failed to exeuse ible cause, Shidner when she admitted a defendant, thereby bias favor of the forcing plaintiff peremptory to waste a challenge? jury's expression D. Did the of confu- Meyer Robert N. Williams of sion at the time of the rendition of the
Williams, Jackson, Wyoming, Representing verdict demonstrate it didn't under- Argument by Jessica Garnick. Mr. Williams. stand the instructions of the Court? E,. Tracy Copenhaver Copenhaver, J. Kath Did the trial court commit revers- LLC, Powell, Kitchen, Wyoming, Repre- & procedures error ible when the established County senting Teton District No. 1. accept permit polling a verdict and of a jury by § Argument by Copenhaver. through 1-11-212 Mr. W.S. W.S. disregarded? 1-11-214 were LEHMAN, C.J., GOLDEN, Before F. Was the trial court's refusal to in- HILL, KITE, VOIGT, JJ. plaintiff requested, struct re- error, versible and should the trial court HILL, Justice. granted a new trial? (Garnick) in [T1] rephrases The School those thus: issues jured maneuvering through while an obstacle part personal course as of a fitness class at juror in A. Was it reversible error for a High Appellant counsel, Jackson School. Garnick presence of the Court in- during an on-site II. Whether the district court erred a measurement take ob- spection, awarding plaintiff unnecessary measurement was not costs for jected subsequently placed on depositions? to and was being given with counsel the record III. Whether the district court erred in opportunity inquire and without awarding plaintiff costs for additional de- objection? position transcript excerpts? for the trial B. Is it reversible error IV. Whether district court erred testimony relating permit awarding plaintiff costs for witness fees injured party availability of services to an by the exeess of those allowed rules? and the cost thereof? provide [¶4] Garnick does not a state the trial court commit revers- C. Did portion ment of the issues for this juror ible error when it refused to exeuse appeal but concedes that some of the items specifically for cause when she *4 Shidner modified, awarded as costs should be al ability impar- expressed an to be fair and though the bulk of them should be affirmed. tial? properly fairly D. Did the Court and
address the concerns of the FACTS allowing rendering a time of verdict injured physical was in a [¶5] Garnick for further them to return to the room High education class at Jackson on explanation after a clear of deliberations time, 30, 1997. At that she October was given to the effect of their verdict was years accomplished old. Garnick was an them? dancer, actress,1 singer, and and before the E, commit revers- Did the trial court application completed accident had to at Ap- error when it allowed counsel for ible Conservatory tend the Cincinnati of Music.2 pellant poll rendering its after completing her final exam for the While then, explana- and after clear initial verdict class, required physical fitness Garnick given jury, accepting the tion was feet, balcony, jump from a a distance of 18 requiring revised verdict without wide, long, pole to a vault mat that 11' re-polled failed to be when counsel to ob- and 2' thick.3 missed the mat and ject request re-polled? that the gymnasium landed on the floor. She suf in- F. the trial court's refusal to Was injuries, fered numerous included shat which Appellant requested, struct tering require Both each her ankles. will error and should the trial court reversible fusions, away in take movement will which granted a trial? have new injuries required The con her ankles. 00-214, In case No. the School rais expense siderable medical attention es these issues: time to come. will continue to do so some greater importance, perhaps
I. the district court erred in Of as a result of Whether injuries, pur awarding plaintiff plaintiff's costs for ex- her Garnick will not be able to any meaningful pert sue her intended career to excess of those costs allowed Although Rules for District Courts? extent.4 never became Uniform family operated looking 1. a dude ranch and tions that attracts those for talent for summer theater in Jackson. She starred or oth- Broadway musicals. appeared many productions. erwise theater theater, Her life had been built around the which railing Thus, 3. the distance from the to the floor planned pursue as a career. There was she railing 13', but the distance re- evidence to the effect that musical theater showed that mat was 11'. The evidence also over well, quires sing three distinct talents: dance 10,000 a of 16 students had done period years, well, injuries, a and act well. As result of her course, only the obstacle Garnick was requirements, and a Garnick lost one of three person to have missed the mat. i.e., second was she could no seriously impaired, dance, ability gracefully longer and her to move presented evidence that the "aver- The School stage hampered by permanent limp. on age" performer musical theater earns about 2. There is evidence in the record that assesses $13,000.00 whereas, as a music edu- per year, teacher, Conservatory could earn over the Cincinnati as one of the institu- cation effect, it, had, judge, reporter. The record waived and the the School aware bailiff(s) jury or the does not reflect that the immunity to the extent of governmental its any guidelines or limi $1,000,000.00 lability were instructed about by obtaining insurance respect to the accident seene tations with in that amount. (Lexis- Wyo. §Ann. 1-11-206 visit.6 Stat. 2001) guidance for provides Nexis this bit of NO. 00-213 CASE a trial court: DISCUSSION proper it When the court considers jurors property to view the which is Jury's the Acci- to the Scene of Visit subject litigation place or the dent occurred, material fact applicable standard [T6] body in a them to be conducted order comes to this Court is this. The issue review place charge of an officer to the under denial upon appeal of the district court's person which shall be shown to them trial. Trial courts have motion for new purpose. appointed the court for that ruling when on a motion for broad discretion jurors person are absent no While trial, will not be reversed new person appointed than the so shall other party A an abuse of that discretion. absent any subject speak to them on connected burden; indeed, heavy seeking has a reversal with the trial party must show that a different result *5 passage in record This brief sets [¶8] the abuse. would have been obtained absent stage for the visit: Carlson, (Wyo. v. P.2d 215 Carlson 888 . THE ... COURT: 1995) And I want the record to reflect that we acknowledges that she re [¶7] Garnick going out to the school at this time. are quested to the scene of the visit quarter It's a to 10:00. We will embark at objections accident. If there were five minutes to 10:00. Counsel is about request, does not make reference permitted go. permitted Jessica is good judgment trial to them. The permitted be there. Mrs. Weaver be granting the motion for a view court representative there as the of the School and, question by parties is not called into we, sitting that's at counsel table. But regard, only suggest in that we that a trial Bailiff, Jury, meaning Patricia may to make a clearer record as wish you going I are not to wait around for to the value of such a view than was done there, you you partici- If folks. are can §§ this case. See 75 Am.Jur.2d Trial 258-60 there, you're just pate. But we're 27l{(checklist view) (1991)5 go gymnasi- going to ahead and look at the facts, Again, the record does not reflect these um. accepted appears but it to be as true both parties that the visit included the transcript shows with re [¶9] this gymnasium: parties, parties, spect proceedings the trial at the counsel both had, jurors 6. Where a view a trial, a At the time of $30,000.00 year. college obtaining attending goal with a a purpose should be as to the and effect instructed degree in music education. was evidence There the visit. The failure such instructions considerably aver- that Garnick more than may prejudice. jury may be without "The age talent, charisma, and that she had the inspection having instructed that after made an competitive drive to succeed in musical theater. premises, accept it is true not bound to any testimony which it believes to be untrue after rule, general a court would decline to As trial - personal inspection of the matter testified changed allow a view where conditions are about, or it be instructed to return verdict way. § in some material 75 Am.Jur.2d Trial 260 according testimony if it is in conflict with instance, (1991). it deter- is difficult to personal inspection what its has disclosed." 75B changes mine whether the in the accident scene (1992). particular § Am.Jur.2d Trial 1234 Of gymnasium apparent- "material." The were importance same, will be instructions to the (in ly hindsight) but it became obvious look, regard view to whether is "evidence." up, it that it did not and was not set as was (1991). injuries. date Trial on the of Garnick's Am.Jur.2d [E.]: JUROR Could we see the balance MR. MEYER: From the floor to the beam, where it was? rail? Any THE COURT: other measure- person
THE Is there a COURT: you ments that took? They the school here? want to see the balance beam. Nope. JUROR [O.]: [E.]: JUROR That's not true. We kind
Oh, you put there is Mrs. Weaver. Can of measured from the end of the beam to up? the balance beam tape. measure, tape didn't We have a Judge, going MR. COPENHAVER: its but the tiles are a foot a foot. sporting to take some time. It's out in the THE COURT: So what was-so what was, shed. can She show them where it was the distance? but that's it. about feet, Eight tape [E.]: JUROR from the THE COURT: Come show them where next to the wall. Weaver, (Mrs. was, Mrs. Weaver indi- ask, your Honor, MR. MEYER: ICan placed.) cated where the balance beam was how determined where the-where MRS. WEAVER: could craw[l] though? the beam ended through the obstacle and the balance beam THE COURT: Mrs. Weaver showed right starts goes about here and to about spot us-showed the where the beam was right about here. Jurors, placed apparently, made a MR. MEYER: stop? Where does it point measurement from that to the middle Right MRS. WEAVER: back to here. tape. of the-the Is that how it was Mrs. Colter, [E.]? Okay. THE Mr. COURT: round up. go
them Let's back. tape [E.]: JUROR To the closest to the wall. reporter's record contains a Okay. MR. MEYER: Was there a mea- note that several inaudible comments were surement tape? made to the first *6 by jurors made during to one another [E.]; Well, JUROR we knew that it was visit, visit. We learn more about after fact, tape- when the trial court three feet between the compelled was to deal predictable "glitch" with a Okay. that oc MR. MEYER: during curred the accident seene visit: JUROR [E.]-is what we surmised from that. Gentlemen, THE COURT: Ladies and I Okay. MR. MEYER: thing
have to make a record of at least one gymnasium. out you there at the Anything THE COURT: Some of else that the produced tape a and measured the dis- jury did out there that needs to be made top tance from the rail of the mezzanine part of the record? down to the mat. What was the distance Because, see, you you're doing what is you
that measured? I want-it has be evidence, your doing folks. You are own part of the record. gathering evidence when start measur- [O.]; tape JUROR is ing stuff. twelve feet. IAnd need to make sure that all the evidence is reflected in the record. THE COURT: How much was it? why That's I have to talk to about it. [O.]; tape JUROR was twelve feet 7. Yes, Mrs. [S.]? THE COURT: Twelvefeet. anything, [S.]: JUROR didn't measure just [O.]: JUROR And it was a little bit but I don't know if this matters. I did feel more. orange of thickness mat that MR. MEYER: top Was that from the of affixed to the bleachers. the mat or from the floor? everyone THE I think COURT: did [O.]; No, (Pause.) JUROR from the floor. that. Thus, more." juror the difference between Garnick's 7. context, In it seems clear that using tape length, expert's a measure that was 12' in measurements and that of the ais plus that the measurement was 12' "a little bit matter of inches. 1040 sitting juror is must witness, in cause which coun- your next right. All Call pre- assigned, presented, properly sel, please. appeal. served for the trial that contends Garnick [T11] Decker, see, P.2d DeWitty v. 383 Also for new denying her motion erred to an affida (Wyo.1963). refers relatively un trial, filed after the a contention juror help advance vit from by the trial received verdict was favorable taken the measurements used that contend does not counsel court. Garnick's jurors at the view devaluate by individual request was made remedial other as well as credibility case of Garnick's instruc time, example, for a remedial opinions relied whose expert witnesses her for Garnick Counsel or for a mistrial8 tion being railing to floor from on the distance authority relating to unau goes on to recite did not consider The district court feet. unauthorized visits or seene thorized accident affidavit, approve of that decision. and we This, course, jury. by experiments argu cogent not contain brief does view, but Garnick an unauthorized
was not authority that would con pertinent ment or engaged in "unau that the does assert its discre the trial court abused vince us that visit during an authorized thorized" conduct weight to that affidavit. giving tion in not above, was aware As set out .10 to the effect is inconclusive as The affidavit reme did not seek either occurred and what ju individual had on the measurement de have a mistrial or to dial instructions other speculation as to all and is ror's views rule, general that failure consti clared. As jury. See 75B Am.Jur.2d members any subsequent assertion tutes a bar Trial § 1725 Trial 75B Am.Jur.2d the error. conclude, given the totali [112] We (1992); Am.Jur.2d Trial see 75B also case, ty of the cireumstances (1992). particular, we note §§ 1548-1555 failure to light of Garnick's particularly § 1554: the text of measures, timely remedial suggest or seek prior to the verdict disclosed Where did not abuse its dis the district court engaged in an unautho- jurors trial. denying motion for new cretion required view, objection is prompt rized losing party held to have will be or the Im- of an in Admission of Evidence Error favor and "speculated" on a verdict his proper Source Collateral complaining. The er- from will be barred of evidence The admission [T13] view a arising an unauthorized ror of the trial sound discretion pertinent to the trial of within juror a seene *7 findings regard are significantly from the mea- in this court's differ 8. The district did not denying the Plaintiffs. Garnick's made decision letter surements found in its trial, for an additur: for a new or motion juror or view occurs when An unauthorized 9. Third, upon visit- parties insist the when of court jurors goes without benefit to the scene scene, they accept ing the risks accident the §§ Trial 1548- supervision. See 75B Am.Jur.2d Among endeavor. the in such an inherent (1992). 55 guard against inability predict or risks is the during strong-willed people might do what 12 case, the decided In this improper their site visit. do so at for them to 10. "Just as it is the pole times, mat and to measure experiments, vault jury may feel not make other demonstrations, height of the mezzanine. during an authorized or tests measurements, did their own Because or demonstra- test, view. Where experiment, findings their activities the Court made dispute or which relates to matters not tion The Court part evidence and record. immaterial, however, jury, the conduct of the are opportunity deal with gave parties an criticism, although susceptible is to be consid- appro- deemed the actions of prejudicial." not ered priate. objec- party to have waived "A will be deemed were [sic] remedial actions No request by failing kind to raise to misconduct of this tion objections party were no either made bring objection the matter proper or to otherwise objections, if Therefore, any, raised. j at the trial when he of the court to the attention jury's activities were waived. knowledge error, of such misconduct counsel has or his committed or the Court If either objection opportunity thereto." to raise the errors are doctrine, under error plain (1991). § Trial 269 75 Am.Jur.2d made The measurements harmless.
1041
court,
evidentiary
and we will not disturb
was treated in a
hospital
veterans
does
rulings
appellant
unless the
demonstrates
prevent
recovery
his
for the reason-
HAC,
Young
clear abuse of discretion.
v.
able value of the services."
¶ 6
LLC,
50, ¶ 6,
1142,
2001
24
WY
P.3d
also,
Lazarus,
See
Hudson
v.
(Wyo.2001).
inquiry
The core of our
must
16,
[U.S.]App.D.C.
(1954),
tortfeasor is liable. Restatement professional, with a ond), 920(A)(2) rehabilitation vocation- 2d, (1982). Torts *8 professional al and that variety there are a (c) reads, Comment of the above section ways that she can advantage take part: relevant that, earlier, one of which we mentioned "c. The rule that collateral benefits are high school college not counselor. The plaintiff's subtracted from the recov- that she attends has-she'll have an aca- ery applies following types demic place- counselor. She'll also have a benefits:
ment counselor. The schools also have Hee ook se of ate available a disabled student's counselor "(8) provide who is available to assistance and applies gra- Gratuities. This to cash counselingspecifically to an individualwith tuities rendering and to the of services. Thus the fact that the doctor did not disability. state, also, Each has a Divi- sion of charge Rehabilitation. plaintiff Vocational for his services or the up here those services source guess I don't (Pause.) MR. COPENHAVER: THE COURT: MR. MEYER: objection based rule. contemplating fall under know whether Your Mr. upon the Meyer, I'm Honor, that, your honor. that because I don't or not I do have collateral sitting think I the sake that by counsel discussed Renfro, nor was she damages in that district source ceived no [116] rule. court overruled testimony appears to have had gratuitous in the for Garnick clarity, However, regard, testimony only objection broached it is making any claims for services of and, therefore, was the collateral worth objection. For solicited mentioning the nature had re from no of-an claiming whatsoever, apparent a loss because it Plaintiff is relevance quite inaceu- I have our have been you and don't of it that some expense trial, course, time of Gar- at the counseling. rate. Of rehabilitation lives for school, high so she longer in nick was no saying any- not MEYER: We're MR. gone back to her very have well could up to the going to be thing that. It's about mater to seek services. high alma school upon what that based jury to decide suggest nothing in the record to There is testimony Jessica, put no but we know of "disabled," or that she was that Garnick expense-that there will in at all that rehabilitation, or that she needed vocational expense for this. be an if she services qualified for those could have MR. COPENHAVER: Well- fact, there a matter of them. As did need testimony introduced nothing in the I not under- Then do THE COURT: any of the she needed Garnick's behalf objection. your collateral source stand por above-quoted in the discussed services Well, I think the testi- MR. MEYER: is, however, testimony. It tion of Renfro's collateral source mony within the falls testimony it from the tenor of clear raise the legal responsibility to I have a convey jury that it intended to objection. any money to Garnick for should not award Well, then. it's overruled THE COURT: in the enumerated as those such services you were? Q. testimony where she could above-quoted Do remember because free, that she or in the event get them for Yes, just the Division mentioned A. they would in the future might need them pro- is a Rehabilitation of Voeation extent, the collateral be free. To qualify for and has to gram an individual relevant, it would rule is source provide counsel- rehabilitation which would to have district court prudent for the been even provide ing. -It assistance could objection objection. The sustained per- if the training expenses, equipment or but, importantly, "ballpark" more in the a financial needed those services son testimony was readily apparent that the examples of standpoint. But those are two thus, and, inadmissible. otherwise irrelevant from a rehabilitation types services However, oversight on not see this we do standpoint that are available counseling constituting trial court as part of assistance to wouldbe and which and, if minimus It is de reversible error. decisions, making figuring out what her all, 61.11 harmless. W.R.C.P. error appro- would be kinds of accommodations functional as her to be as priate to allow a Juror of Trial Court Strike Failure pursuits. vocational in her chosen possible for Cause Q. And are those available at no cost? [117] contends that the dis in de- error committed reversible Yes, trict court A. sin. order, judgment unless refusal disturbing a states: 11. W.R.C.P. 61 *9 appears incon- to the court take such action the exclu- admission or "No error in either the justice. The court substantial sistent with any in or defect evidence and no error sion of disregard proceeding every stage must of the anything ruling done or omitted or in or order proceeding which any defect in the error or ground any parties by or of the the court rights of the substantial does not affect the setting aside a granting trial or for for a new parties." modifying vacating, or otherwise verdict or for nying request challenge juror her a for with Holzer problems would cause her in challenge lay cause.12 The basis for the in a serving juror, as a to which she answered "No." When if give potential juror asked she could bias of the in favor of the Garnick apply shake," School and its chief witnesses. We an a "fair she answered "Yes." In sev follow-upquestions, juror eral abuse of discretion standard to a trial court's continued to indicate she could be fair. Garnick in ruling challenge on a for cause. Krahn v. Pierce, 1021, (Wyo.1971). 485 P.2d cludes in challenge this the fact that the standard, juror connection with the review high Garnick also knew the principal, school but point juror does out a recent decision of this Court likewise indicated that would create opined, dicta, problems wherein we in the form of no in her service. Later judges district wary should be dire, of rehabilitat voir it was revealed that one of the ing juror juror's prospective a vehemently teaching who has sons served as a assistant for Mr. prejudice articulated bias or Holzer. respect again Counsel for to a party asked Ormsby or issue. would make it Kepner v. Dana difficult for her Inc., Company Wyoming, juror, 997 P.2d serve as a and she indicated that it be," "could (Wyo.2000). might and that While that be remains sound "awkward" for advice, upon her. Based responses, it does not alter those coun applicable stan juror sel asked that dard of review or excused. The per Garnick's burden of trial court then asked if she respect could be fair suasion with this issue. More sides, juror both and the responded, guess "I importantly, nothing resembling a "vehe I still feel that I could listen mently to both sides prejudice articulated bias or with re judge fairly." The trial court indicated spect party to a or issue" can be found in this me," enough was "fair for record. request. denied the Counsel then asked an [¶18] Garnick contends that because this questions other series of and concluded that juror Holzer, was a "friend" of Mr. who was if, asking juror series "as sit here gym designed teacher who the obstacle on you give could Jessica Garnick injured herself, course on which Garnick the same consideration would Mr. granted trial court should have challenge juror Holzer?" answered, "Yes." On for cause. The juror record shows that the occasions, two more counsel for Garnick re indicated she knew Holzer because he had objections newed his seating of this children, coached her both children had done and, juror although the trial expressed the obstacle part course as a of their school some misgivings juror, about the he did not ing, and because she had "ropes" taken some alter ruling. his initial taught. courses that Holzer She did consid er Holzer to be a friend. Her children knew Garnick, and one of them talked to Garnick these cireumstances as an abuse of discere [119] We are unable to characterize about the accident wherein tion, in and Garnick has pertinent cited no au jured. After these facts thority were revealed that would dissuade us from this con juror, she was asked if her relationship briefly clusion. We goes note that Garnick (LexisNexis 2001) (iv) § Stat. Ann. Wyo. 1-11-203 Having served aas or a witness furor added) (emphasis states: previous parties trial between the same for being same cause of action, or then a Challenges grounds. 1-11-203. cause; therein; witness (a) Challenges for cause be taken on (v) part juror Interest on the of the (1) one following grounds: or more of the (i) event or any involved qualifications A lack action, in the but pre- of the question juror not an interest of the as a member or person scribed statute which render a com- municipal corporation; citizen of a petent juror; a (vi) (ii) Having expressed unquali- formed or Relationship by consanguinity affinity or opinion fied or degree within belief as to the merits party; the third or the to either (ii?) question Standing reading main action. The the relation of debtor or newspaper subject accounts of the matter guardian be- creditor, ward, or master or servant, principal agent party, or or being disqualify juror to either fore the court shall not or partner united in party, opinion; business with either for either bias or being security {vii) obligation on bond or The existence of a state mind in the party; either juror evincing enmity party. or bias for either *10 2a, find, preponderance of by a you Do juror upon length describe to to some evidence, GAR- plaintiff JESSICA perempto- have exercised they would
whom negligent? necessary NICK they not found it challenge had ry _ x fully described Yes juror more on the to use it on further elaborate need not above. We No no error we find matter because "yes" to move your above is answer challenge cause. If of the trial court's denial question 2b. Requires Trial as a New your Confusion is "no'" move
Juror above If answer Jury Poll to Further question Does Failure 4. find, preponderance of you by a Do 2b. that set of review is The standard [¶20] evidence, negligence was a that such rul trial court's respect to a above with out injuries plaintiff, JESSICA cause of the regard, trial. In this ing motion for new on a GARNICK. form used the verdict note that we also x Garnick, Yes proposed trial court was objections to the made no and that Garnick No verdiet form. use of the "yes" your move to above is If answer that this did -It evident [T21] is question 3. its verdict. the rendition of trouble with some your move to is "no" If answer above exactly as the verdict form set out the We question 4. in, make clear in order to filled 100%, fault at Considering all of the 3. genesis of this issue: is attrib- the total fault percentage of what following for the of the utable to each AND FORM VERDICT only? negligence claims INTERROGATORIES 100%) (0% 50% District A. Defendant School We, duly impaneled and sworn case, unanimously as fol- (0% 100%) find in this do 50% Plaintiff B. Jessica lows: 100% Total find, preponderance of you by a la. Do 100%) (the equal evidence, total must defendant TETON DISTRICT NO. COUNTY SCHOOL you fault If find that Jessica Garnick's negligent? 50%, sign greater the verdict than you Yes x If find ]. the baileff [sic return it to fault is less than that Jessica No ques- 50%, go equal on to Please "yes" your move to answer above If tion
question 1b. considering percentage of 4. Without sign above, total your what above is "no" fault attributed If answer give damages find was sus- it to bailiff. do verdict form amount (Note, tained Plaintiff Jessica find, by preponderance of 1b. Do deduc- Judge appropriate make will evidence, negligence was a that such plaintiff, fault attributable tions for injuries plaintiff, JESSICA cause Garnick, any) GARNICK. 250,000.00 _ x Yes 150,000.00 $ No course, was, of verdict form "yes" your move to answer above is If foreperson of the signed dated and question 2a. giv the last instruction jury. The second to 20) (Instruction was as sign No. en to the your "no" above is If answer it to the bailiff. verdict form follows: *11 This case must be determined on the having that it was not reaching trouble verdict, comparative deciding of fault. In jury basis the and the trial court sent the back you meaning case will need to know the of jury the room to continue its deliberations "negligence" pm. jury at the terms and "fault." 11:58 The then returned to the 10, courtroom at 12:12 am. on November negligence When the word is in used 1999, with a verdict. The verdict was read instructions, these it means the failure to and, above, jury initially as shown award ordinary Ordinary use care. care means $150,000.00 ed damages. in The degree might reasonably of care which jury polled, juror and each acknowl expected ordinary be of the person careful edged the verdict. The trial court then under the same or similar cireumstances. asked counsel if the polled should be say ordinary The law does not how such an further. Counsel for Garnick asked the trial person you careful would act. That is for court to ask the if its intended verdict to decide. $75,000.00 was that Garnick receive person A person is at fault when that damages. exchange This then occurred negligent person's negligence and that is a the courtroom: injury damages cause of the for which THE your COURT: The result of ver- the claim is made. dict, Gentlemen, Ladies and will be that necessary you It will be for to determine | $75,000.00. Jessica Garnick recovers - - fault, percentage any, if of each of do, That's you what will because persons involved in the occurrence. It found her to be 50% fault. The amount you will necessary also be for to determine $75,000.00 that she will recover is Is there damages by any amount of sustained anyone-how question? do I ask the party claiming damages. (Pause.) findings Your as to fault will affect the anyone surprised by Is just what I have plaintiff's recovery. my duty It is ex- you? told plain how that occur. (Several jurors nods.) responded by liability damages defendant's for [W.][Foreperson]: JUROR Yes. fault, percentage limited any, if [W.], THE you COURT: Mrs. do feel you that find is attributable to the defen- you speak can Jury? for the entire dant. [W.]: JUROR Yes. recovery plaintiff for the is reduced THE COURT: Is there someone that fault, percentage any, you if doesn't think speak [W.] Mrs. can find attributable plaintiff, (No response.) them? Garnick, result, surprised by You are Mrs. you plaintiff, Should determine that Jes- [W.]? Garnick's, sica fifty percent, fault exceeds [W.]: JUROR Yes. plaintiff will not be entitled to recover THE you COURT: What do want me to any damages. do now counsel? explaining consequences your verdict, MR. WILLIAMS: Give the verdict form the court has imply not meant Jury back to the and let them-I would any person is at fault. That is for like to confer with Counsel before we- in conformity decide with these instruc- tions. They may MR MEYER: need additional instruction, Honor, your to know the effect [¶23] The case was submitted to the (Pause.) of the verdict. and the retired for its deliberations down, THE COURT: Sit Gentlemen. p.m. 9, at 2:08 on November 1999. The This is hap- first time this has deliberated night. until late into the At pened me, folks, okay? pm. day, 11:47 that same the trial court courtroom, called the into apparent pro- Its instruction No. [sie] ly believing jury may pertinent have been part: vides It will neces- unable to reach a sary verdiet. The indicated percentage determine the Jury wanted parties knew what Both persons fault, any, of each out- raging blizzard will be It also occurrence. There was done. involved *12 side, Jury home without I sent the so amount necessary you to determine for any party claim- the verdict damages sending back to correct sustained them through going I'm guess what? form findings as to fault will damages. Your ing jury my I didn't send recovery. It is trial a new because the Plaintiff's affect I And when may occur. The correct the verdict. that back to duty explain how to that, "I I said won. liability damages is limited both sides for didn't do Defendant's fault, any, you open if that Jury you percentage told care what don't Defendant, case won. court, My The side of the Judge. to the find is attributable said, "Well, if I appeal." So going reduced I'm to recovery Plaintiff is do, going going to we're you're that's fault, you what find any, if that percentage of Supreme And the Gar- trial." Plaintiff Jessica to have new to the attributable you're said, "Judge Troughton, Court Plaintiff you that determine nick. Should 50%, trial." right. them a new fault exceeds Give Jessica any recover entitled to Plaintiff will not be you so I have to send back I think So (Pause.) damages. among yourselves you can discuss that verdict, is a please, you Mrs. Hawkins. think the verdict or not whether (Pause.) verdict, your expresses whether it correct doesn't; to make or whether intent damages, the verdict respect to With necessary you are changes think whatever Question 4: consider- Without provides to the verdict. attributed as ing percentage of fault damage- above, Williams, any objection amount of you what total do Mr. you find was sustained to that? damages do Note, Judge Plaintiff Jessica Garnick? No, your Honor. MR. WILLIAMS: for fault appropriate deductions make will Copenhaver? Mr. THE COURT: Plaintiff Gar- to the Jessica attributable No, your Honor. MR. COPENHAVER: nick, any. if Now, parties' with the THE COURT: Now, for certain what I do not know Jury tell that permission, I will to know what your I do not want intent is. just to thing them to do is simple no I-and I your intent is. But want question. in the last change the number indication you. I want no from discussion right you, Mr. all with Williams? Is that is, your intent but I any you what Yes, sir. MR. WILLIAMS: my give you interpretation. will you, it for How about THE COURT: you wanted My interpretation is that Copenhaver? Mr. $150,000.00. I to have in- If that's their MR. COPENHAVER: I knowing am way of whether have no fine, tent, wrong, your Honor. I-that's I am but that's right or whether I I that must I think. And believe what Yes, if not that's THE because COURT: back, having read these you after send you her to have-if want- you wanted what you having to after told instructions and $150,000, you need to then her to have ed $800,000. That's the as the other instructions change figure to consider all of that you; that I have read well as the ones you you But do what simple solution. your I needs thing to do. you verdict appropriate believe is the believe corrected, it. you then shall correct anything to be you be- instructing to do am not you that it should be If do not believe decision; something your and it's it's cause corrected, it. you not correct should because you folks have to resolve this, I me. All can you're judges of I Now, you things because I tell those you understand try make sure County do is to fury in where recently had a Uinta you to think things. I don't want I correct. When form was not the verdict I'm you to do because telling I'm what they jury what meant about talked thing in the world verdict, The last me. not. told in the to do Fully Properly want do in this case to do that to Failure to is Instruct Jury that, going if I I'm folks. Because do get case. appeal. I want it to be over. And I don't want an appeal trial court erred in [126] refusing contends that the several instructions she offered. The function of Colter, right. All Mr. will take the give instructions guidance Jury Instructions and the Verdiet and have respect applicable law. A trial Jury by, retire. stand We'll folks. obligated is not an offered then returned to continue instruction, long so adequately
its deliberations at 12:27 a.m. on November
instructed on
pertains
the law as it
to the
10, 1999, and returned seven minutes later
case at hand. We do not reverse a trial
above,
rulings
with its revised verdict.
court's
As shown
on an instruction unless it is
$150,000.00
demonstrated that the
changed
the
instruction
verdict was
to
was neces
$250,000.00.
sary
jury
impart
jury
to
to
proper princi
The Court did ask the
the
the
ples
applicable
of law that are
to the case
correct,
foreperson if that was
and the re
and, further,
proponent
that
the
of the re
sponse was "Yes." The trial court said it
fused
prejudice.
instruction can show
Orms
poll
jury.
would not further
the
It
then
by,
471;
damages right, the school appeared it to want her $150,000, duty to district also has the changed but affirmative its verdict protect against $125,000. dangers students known to to award The second was to the exist protect against and also to effect that the trial court should have further dangers which it should discover polled jury. position The trial court's use of reasonable care. was that both of those issues should have been raised before the was excused. It is loosely contended that the instruction is holding
based on our in Rhoades v. K-Mart [125] Garnick contends that Corporation, (Wyo.1993), 863 P.2d (1994), as well pro as W.P.J.I.C. 9.03 clearly scenario profound demonstrates con vides: part fusion on of the that the A enough seriously ordinary
did not take landlord must time to use care to reflect [stairs, walks, keep hallways, verdict, and so on its modified and that the trial reasonably forth] in a safe conditionfor the court should polling have allowed further purpose [stairs, hallways, for which the jury. Taking into account all cireum- reasonably walks and so in- forth] were record, stances including shown tended. object fact that Garnick failed to to the trial court's poll decision not to further or reciting [¶28] Without all of the specifically polling ask for such when the given, say instructions suffice it to we are gave opportunity trial court for such a persuaded message intended be request, we will not conclude that the trial conveyed jury, by proposed to the in denying
court abused its struction, discretion adequately conveyed motion for new trial. by other instructions. It is also abun- than one cause of may be more There permitted wide dantly that Garnick clear is, may be concurrent injury, there jury that point to the arguing her latitude causes. respect negligent with the School always course. the obstacle occur set-up and use of causes do not Concurrent really postured as addition, may contin- simultaneously. this case was cause One case, although joined an instruc- with another liability operation and premises vous been might well have that offered tion like time. at a later cause ly, instruction. given without we the failure do not see prejudice that Garnick was trial court to the School. prejudiced Final- but have been accurate we do not [132] recitation W.P.J.I.C. necessary or The offered consider appropriate under instruction instruction 3.05 (1994), is an of this case. Concurrent the cireumstances Next, contends cause, necessity, requires the actions of "theory failing give its erred trial court force, (although there party, a third least instruction: of the case" etc.). fifth, fourth, M. 3 Stuart be a Gar- in this case is Jessica plaintiff Gans, Krause, Alfred F. Speiser, Charles Teton in this case is *14 The defendant nick. (1986); Torts, § Nat 11.5 American Law of 1. County District No. School - Hull, Processing Company v. 886 ural Gas claims as follows: Garnick Here, 1181, (Wyo.1994). 1186-87 P.2d jump in the "railing to mat" located The appear to re does not proposed instruction dangerous course was obstacle presented late to the theories not have employees should district school negligent were that School railing too permitted its use. (Garnick's neg theory) from, too small high jump the mat was (the theory). The instruction ligent School's par- protect course adequately obstacle purpose under served no would have course instruc- ticipants and the obstacle case, no and there was cireumstances of this inadequate. tions were refusing it. in the trial court error nick relies on [180] Bigley v. For this Craven, proposition, 769 P.2d Gar- 892, Collective or Cumulative Error (citing Spring v. (Wyo.1989) Short 894-98 Finally, contends that [¶33] Ranch, Inc., 1195, P.2d 1199-1200 731 Creek above, when viewed cumula discussed errors v. Baldwin- Langdon see (Wyo.1987)); also often the tively, require a new trial. As is so 537, 494 P.2d Corporation, Lima-Hamilton arguments, cumulative error case with re true those cases (Wyo.1972). It is 541 agreeing that dependent are on this Court give theory trial court a quire that a instance, In this error existed. only if it also a clear case instruction but go the trial are able to furthest we An instruction that is of the law. declaration admission of asserted error court's law should be refused. consistent with during its visit obtained evidence Short, at 1200. The offered instruc 731 P.2d error. In most been harmless would have at the law that would a statement of tion is not error. That respects, we find no all other but a statement govern the facts in this case in this case can problems were encountered support tend to of the facts that denied, problems were but all of not be theory. argument Gar- legal of a mistrial or capable of resolution short regard. permitted full rein in this nick was fair, required to be but trial. Trials are new However, authority not re cited does perfect. they need not be give jury an instruc quire court to a trial party's factual con CASE NO. 00-214 tion that summarizes refusal of find no error in the tentions. We the dis contends offered instruction. of costs. At the court erred its award trict trial, the district trial conclusion of contends that the Garnick also [¶31] - $11,442.11 in a total of awarded Garnick failing a concurrent court erred that this amount The School contends costs. cause instruction:
1049 $6,075.14. should be reduced to Garnick con discretion of the Hashimoto, trial court. 767 cedes that the award of 168-69; costs should be P.2d at Dieringer, State v. 708 P.2d $8,425.21. Thus, reduced 1, our resolution (Wyo.1985). 11-13 these issues need ute ground between and court [135] rules. Costs are those two only Snyder deal with the middle figures. governed v. Lovercheck, stat witness per allows according to the cireumstances of the [¶ day or such other amount as the court 36] fees of An expert twenty-five witness "shall be allowed dollars ($25.00) 1079, (Wyo.1999); Stat,. P.2d Hashimoto Wyo. case." 1-14-102(b) (Lex § Ann. v. Pipe Marathon Company, 2001). Line 767 P.2d isNexis purposes For of costs in this 158, (Wyo.1989); Mitchell, 167-69 case, Weaver v. the district court was authorized to 1361, 715 P.2d (Wyo.1986) Bi-Rite "award and tax costs apportion them Package, Inc. v. District Court the Ninth parties between the on the same or adverse Judicial District County, Fremont 735 sides right as it equitable." deems Wyo. P.2d 712 (Wyo.1987). 1-14-126(a) (LexisNexis Within the con Stat. Ann. 2001); above, fines set out the determination 54(d) also see W.R.C.P. and U.R.D.C.501.13 allowable costs to be taxed is within the (a) Civil Cases. per $25.00 day, higher amount is allow- (1) Filing of Certificate of Costs. able for the expert Within 20 time that the witness days entry after judgment actually of the final allowing charged testified. Time prepara- prevailing party, costs to the providing certificate of tion for testimony standing by and/or costs copy shall be filed and upon served op- awaiting give testimony the call to is not allow- posing counsel. The certificate shall costs, be item- except able as $25.00 at the rate per fees, ized. For witness the certificate shall day. © contain: (C) Reporter $45.00 Fees. The fee is a tax- *15 (A) witness; The name of the able Transcripts cost. proceedings, of such as (B) residence, Place of place or the where hearings, pretrial conferences, etc., motion subpoenaed, place or the to which the witness prepared request at party the anticipa- of a in voluntarily traveled subpoena without a to at- tion of trial are not taxable as costs unless such tend; part matters become of appeal. the record on (C) days The number of days full or half the (D) Depositions. Costs of court; actually witness testified in (i) depositions Costs of are taxable if rea- (D) days The days number of or half the sonably necessary preparation for the trial; witness place traveled to and from the of deposition case for trial. A is deemed reason- (E) traveled; The exact number of miles ably necessary if: (F) travel, air, railroad, The manner of bus I. provided Read to the as in Rule or vehicle; and, private 32(a)(3), W.R.C.P.; (G) If common carrier is transportation II. Used at impeachment trial for con- used, price economy the of an fare. cerning testimony a material line (impeach- of (2) Objections to Certificate of Costs. If no ment on a collateral issue does not fall within objections days are served within 10 after ser- rule); scope the of this costs, vice of the certificate of the costs shall be Necessarily, III. merely and not conve- taxed as set forth in the certificate of costs. If niently, used to refresh the recollection of a filed, objections are the court shall consider witness while on the stand; or objections the hearing and tax may costs. A be IV. Was request taken at the of a non- provided at the discretion of the court. prevailing party. foregoing The (3) are meant Allowable Costs. provide guidelines, (A) Fees, and are not exhaustive. Filing fees, jury demand and fees depositions The use of preparation (W.S. for trial process. for services of § 18-3-608 sets justify alone does not fees.) imposition the forth sheriff costs. (ii) (B) Reporters Actual, depositions. fees Witness Fees. (1) ordinary reporting Witness fees will fees are be allowed. allowed at the rate Extra per $30.00 day expediting costs for per transcripts daily $15.00 day copy or half neces- sarily spent traveling proceed- to and from the costs will not be allowed, as authorized except ing and in proceeding. prior attendance at the an order entered Mile- the date such age mile, is allowed at per $.23 the rate of not costs are to be incurred. travel, Reporters' per expenses exceed the appearance costs of diem common carrier trans- fees will not be taxed as costs. rates. portation (iii) (i) expenses Fees of counsel. Fees witness fees shall be allowed Expert the per day $25.00 rate of expenses or such traveling other of counsel for to and amount as the court according allow attending depositions are not taxable as costs. the (E) circumstances of the case. If Copies Papers. the amount Duplicating costs higher allowed hourly constitutes a rate necessarily than incurred for documents admitted
[137] We will not analyze the damages were written the read: paragraph which under the in detail because blank argument School's percentage of considering the its contentions support Without failed to has above, what total authority. fault attributed argument pertinent cogent with sus- damages you find was do amount of not arguments are Moreover, the School's (Note, by Plaintiff Jessica tained of re applicable standard with written appropriate deduc- Judge will make addition, analysis such in mind. view plaintiff, attributable for fault tions our not, way, advance further would Garnick, any) if in a case respect to costs jurisprudence with accept concession this. We such as compared to instructions When [¶41] the amount reduced to that costs should complex jurors involving provide to courts fees expert witness $8,425.21 because relatively theories, language seems legal should excessive awarded were ques no The asked straight forward. prepara of court paid for out have been and, deliberations, ini when during its tions tion time. acknowledged that jurors polled, tially $150,000 in fact its verdict. What however, followed, inquiry further about CONCLUSION intent, explana the ultimate jurors' judgment of the district [¶38] wanted court that tion awarding costs The order is affirmed. $150,000, have to get it would plaintiff The case is above. as modified affirmed $300,000. reason award her pur for the district court remanded at all was presented to the court issue reducing award entering an order pose of $250,000 verdict back with came $8,425.21. of costs $300,000, plaintiff and the rather than part of on the thought proved confusion LEHMAN, C.J., dissenting opinion. filed a jury. course, is that the My problem, of [¶42] Justice, dissenting. LEHMAN, Chief the total amount determined first My appre respectfully dissent. That had suffered. damages plaintiff it felt pur in this case evolves hension what requires; the law is what *16 jury regarding the ported confusion jurors The jurors to find. were instructed appellant. to damages awarded amount task, and the difficult performed their correctly points out that both majority The apply the duty was to remaining of the court by procedure used agreed parties upon contributory negligence based law of that, acknowledge that and, I beyond court by the determined percentage of fault It was it as an issue. not raise appellee did occurred, how appears to have jury. What however, by raised, context in a different damage ever, amount the increased is that import fundamental is of such plaintiff and $250,000 $150,000 was determined from I must comment. upon the actual jury, what not based plaintiff, but damages it felt occurred determining the jury, The after plaintiff jurors wanted the amount the re what parties, first | fault of the comparative receive. $150,000. Those a verdict of with turned Duplication the award of be allowed. nor do evidence shall law; under into they require altogether they may if the own use are be denied for counsel's costs as costs for documents discretion, court, so through exercise of its not allowable. (F) ex- Evidence. The Received in Exhibits extent that W.S. Moreover, determines. in evi- preparing exhibits received pense of costs, control- that statute is § 1-14-125 limits (but dence, photographs not including However, ling. offer costs associated videotapes, and other enlargements), models W.R.C.P., rule, judgment must ie. Rule as tax- are allowable evidence demonstrative be awarded. the court. at the discretion of able costs may appor- (5) Apportionment.-All costs (4) Not Enumerated. Other Costs non-prevailing among some or all of tioned costs preclude award of other not rules do parties determine. as the allowable if otherwise enumerated herein not colloquy In fact the from the court [T43] reinstructing jury regarding
as it was
damages language included about what plaintiff Quoting wanted the to have. portion of the discussion: Yes,
THE COURT: because if that's not you you
what wanted her to have-if want- $150,000, you
ed her to have then need $300,000. change figure That's the
simple solution. But do what appropriate thing
believe is the to do. question
[T44] what the court, plaintiff or counsel want question
receive. The is not how to avoid
application comparative fault statutes. question damages is what were incurred plaintiff. given The above instruction
by the court is not accordance with law. is, believe,
The error of law committed I so clearly
fundamental and resulted a differ- verdict, ignored.
ent it cannot be
would reverse for a new trial in which a
would be again allowed to determine onee
percentage of fault parties attributed to the
and, influence, without the total amount of
damages actually it felt was suffered
plaintiff.
METZ BEVERAGE
Wyoming corporation, Appellant
(Defendant),
v. BEVERAGES, INC.,
WYOMING Wyoming corporation, (Plaintiff).
Appellee
No. 00-287.
Supreme Wyoming. Court of
Feb.