*1 489 192, Cо., 195, 369, case, although 519 In this Or. that fee. position of (1974). testify, Defendant has attorney any objec- offered waived plaintiffs By precluding attorney preclusion not received. tion to the fee testimony was it, abrogated responsibili- its attorney’s testimony. the trial court plaintiff’s inquiry. This was ty to undertake a full judgment affirmed. reverse, however, be- do not error. We attorney led court defendant’s cause C.J., HALL, STEWART, HOWE and in which the error of the manner into the JJ., DURHAM, concur. attorney pre- testimony plaintiffs cluded. plain
According transcript, when support attorney testify
tiffs offered fee, attorney objected on
of his defendant’s permit “attorneys are not ground they repre testify in cases in which
ted to objection This was with party].”
sent [a court any legal foundation.1 The trial out PEARCE, Wayne Plaintiff objection. De erroneously sustained Appellant, asks this Court to re fense counsel now award, arguing attorney fee verse support that the work without record WISTISEN, Oveson, Richard Martin J. could not required plaintiff’s counsel Respondents. Defendants taken more than 50 hours possibly have No. 18376. therefore, fee could that a reasonable multiplied going Supreme exceed the local rate Court Utah. certainly would be far by 50—a rate that April 1985. court’s per than the hour the $531.54 less Ironically, by objecting to produces. award attorney’s
plaintiff’s testimony, defense keeping succeeded in out of
counsel might precise
record the as to the
corroborated contention Al required time for the work.
amount of
though might very well have established of the fee on cross-
the unreasonableness n . examination, prevented conduct his оwn counsel
Because defendant’s succeeded testimony of the
keeping out number counsel, expended by plaintiff’s there
hours concluding that 50 hours or
is no basis for expenditure hours was a reasonable successfully Defense counsel cannot
time.
object plaintiff’s trial to counsel’s testi at
mony complain his fee and then about prove has failed
appeal
reasonableness of the fee. Kohler v. Cf. Utah, 639 P.2d City, Garden
(1981); Haughton Hickman v. Elevator legal services "solely and value proscribe attorney’s giving the nature
1. Our canons do an lawyer ... case testimony employed case rendered in a in which he is Conduct of Professional exception Rev.Rules сanon client.” counsel. an to that Bar, DR5-101(B) (1977). expressly Utah State it relates allows such when *2 Howard, Lambert, Jackkson D. David City, appellant. Salt Lake Hansen, Bountiful, Darwin C. for defend- respondents. ants and HOWE, Justice: appeals judgment Plaintiff from a en- on a verdict tered of “no cause of action” in wrongful action brought death which he against the defendants on behalf of the son, Pearce, deceased, heirs of his Evan U.C.A., 1953, pursuant to 78-11-7. 1, 1979, morning On the of June Evan Pearce, Wistisen, age age Kevin returned to their homes from a Provo high graduation party nearby school in a canyon. way they On their home made plans go skiing water on Utah Lake father, later that afternoon. Kevin’s one herein, percent of the defendants was a 50 16y2-footmotorboat, owner with the percent being other 50 owned defend- ant, per- Richard Oveson. Kevin received mission from his father to use it. Prior to it, leaving his house with Kevin “cleaned up” by removing equipment the boat some paddles such preser- and numerous life vers, leaving jackets two vest life and one collar-type in the boat. He then Evan, picked up Leslie, Evan’s sister Angela Adams. The four of them launched at a harbor the east side of the approximately p.m. They lake at 5:00 de- cided to water ski on the west side of the lake because water was calmer. Both skied, Evan and Leslie water with skiing. Angela slalom Kevin and remained boat; Kevin, leg injury, because of a Angela, beсause she did not “want to make myself.” a fool of By p.m., causing 6:30 a brisk breeze was high, waves between one and two feet youths decided to return to the harbor. girls he Evan made a bet with the way prepared could ski all the back and back, brought Evan’s they skis. As started father action for ski on two against joint wrongful son’s death own- water and let loose of the tow fell into the A ers found that both then adrift. Without rope, which became boys negligent, owners and both hauling rope, in the turned the boat Kevin negligence, but Evan’s and not Kevin’s rope, as it crossed be- around negligence, proxi- nor owners’ awas entangled propeller, stalling came *3 mate cause of the accident. attempted from in- engine. Kevin the the appeal claiming Plaintiff’s four errors: disentangle rope, the of the boat to but side (1) prejudicial con- admission girls avail. The searched for a knife to no cerning purchase Evan’s alcohol and con- rope, was none. Kevin to cut the but there sumption; (2) the trial court’s failure to shut off the jacket, then donned life statutory require- instruct the cowl, battery engine the boat under boat; carry ment to an anchor aboard the water, girls asking the the to and entered (3) give plain- the failure trial court’s to keep eye an on Evan. Evan meanwhile requested presump- tiff’s instruction on the swimming was toward the boat. When he tion that exercising Evan was due care away, approximately 25 feet he shed (4) safety; and the his own trial court’s jacket life a dash for made the boat plaintiff’s requested to give failure instruc- attempt angle, in an to cut it off at an but U.C.A., liability on imputed tion under past grasped Kevin the boat shot him. 1953, light holding, In 73-18-18. of our rope steady to and extended his evidentiary we address issue first. rope hand toward Evan. The broke. Kev- Rule 45 of the Rules of Under Utah in, life and within feet with his 10 Evidence at the applicable time of trial boat, tried to swim back the boat case,1 judge “may trial dis girls not it. The threw but could reach cretion if he finds that its exclude evidence only remaining jacket, life Evan the other outweighed probative substantially value adjustable vest than size. an smaller Evan’s (b) by the risk that its admission will ... slipped into not or it but could did Evan danger preju create of undue substantial Meanwhile, had zip up. it Kevin drifted confusing dice or the issues or of mis Evan, boys the two called to back to leading jury....” This has fob Court start Because Kevin girls to the boat. general lowed the rule that the trial court’s them where turn on had not instructed decision to admit or exclude evidence will battery, they were unable start not be unless has abused its reversed paddle or They looked for a some- engine. powers. Terry discretionary v. Zion’s Co boat, which but were thing with to turn Institution, Utah, op 605 P.2d Mercantile They find anything. remained unable Stores, (1979); Inc., Safeway 314 v. Martin and Recreation until Utah Parks adrift Utah, (1977). 565 1139 is the fact P.2d Nor picked the boat next Department up erroneously admit alone еvidence was Meanwhile, morning at 5:00 Kevin a.m. aside a unless it ted sufficient to set verdict had struck out for the west shore bring has “had a substantial influence lake, leading way. with Evan In ing about the verdict.” re Estate of stayed in and aural contact They visual Hock, Utah, (1982); 1111 Bamb 655 shore five hours 1286, dark. Kevin reached Utah, until Bethers, v. 552 P.2d rough later, 4(b) Both of Evan drowned. Evan’s (1976) (construing but 1290 Utah R.Evid. morning. the next jackets (repealed)). Conversely, were found where evidence eight supported only conjec days until hаve body was not found was shown to His probative which little tural inferences accident. after issues, prejudice, or mis- superseded by fair confusion Rule 403 of the Utah 1. Since 1983, 1, Evidence, September leading undue considerations of effective or Rules relevant, “Although time, provides: evi- delay, presentation of now or which waste of needless may value is be excluded if its dence substantially outweighed evidence." cumulative danger of un- 492
value, or where no
opening
triаl,
evidence was adduced
In his
statement at
defend-
that a fact had
showed
causal
prove
ants’ counsel asserted that he would
plaintiffs
injury,
connection with the
re
that Rod Hunt
purchased
and Evan had
viewing courts have reversed cases on
quantities
party
of alcohol for the
and had
grounds
improperly
admitted evi
engaged
drinking.”
in “substantial
Plain-
only
dence could
served
confuse
mistrial,
tiff’s counsel
for a
moved
but that
prejudice
mislead the
or to
the motion was denied. Rod Hunt was the
outcome of the case. State ex rel. Haus
able,
first witness for the defense. He was
Blackman,
693,
Kan.App.2d
ner
648
made,
objection
before
could be
to state
Plourd,
(1982);
P.2d 249
v. Southern
basically
relationship
Pacif
with Evan
Co.,
Transportation
ic
266 Or.
partying,
drinking.”
“consisted of
such as
(1973);
Mitchell,
P.2d Dolan v.
That remark
was stricken after the
(1972).
Colo.
In a to tell motion limine heard before the that he and Evan *4 trial, plaintiff requested illegal purchase liquor. counsel for had made an the court any to refuse to admit evidence that The trial court let that evidence in on the drinking party there had ground at the that the could consider the canyon night the purchase before accident. The physical as evidence of the condi- grounds motion was made on the that such tion of the deceased. Hunt further testi- evidence would establishing be irrelevant in fied that he and Evan drank alcohol at the proximate cause, that it would have no рarty.
probative value that would not be out-
trial,
Throughout the
as well as in these
weighed
effect,
prejudicial
its
and that it motions, plaintiff objected to the admission
simply
no bearing
had
on the case. Coun-
purchase
of evidence of Evan’s alcohol
and
sel for
proffered
defendants
evidence that
consumption
ground
that
it was
witness,
Hunt,
Rod
testify
that
time, irrelevant,
in
unduly preju-
remote
he and Evan
sponsored
party
had
dicial, and
surprise.
constituted unfair
On
bought
money
“booze” with
collected from appeal, plaintiff argues that the mischief of
ticket sales and that
young peo-
some 200
allowing
such
towas
introduce a
ple had
party.
par-
attended the
When the
shadow defense to which the
could
ty
up
a.m., Kevin, Evan,
broke
around 3:00
respond.
not
It demeaned and besmirched
Rod,
behind,
stayed
some others
reputation
by implying
of the deceased
up
cleaned
party,
got very
from the
orgy
night
that an
occurred
before
slеep
little
leaving
canyon
before
at
partici-
accident which Evan was a
6:00 a.m.
argued
Counsel for defendants
pant.
though
that “even
we don’t
any
scien-
“ ‘Relevant evidence’ means evi
tific
might suggest
evidence that
having any tendency
dence
amount
reason
system,
of alcohol in the
there is
prove
disprove
or
enough
any
the existence of
ma
experience
jurors
that
would have
1(2) (repealed).2
terial fact.” Utah R.Evid.
they
that
could draw their own сonclu-
It
inquiry,
probative,
sions.”
advances the
is
part
Counsel further asserted
and is
prima
therefore
the defense
facie admissible.
boy
would be that “this
Carlson
Piper
695,
Corp.,
Or.App.
drowned because
v.
up
he had been
for 36
57
Aircraft
hours,
exhausted,
(1982)
physically
(citing
he was
493 against acting prostitute value a at the time of the must balance to determine countervailing factors accident and thus was either absent or those be admitted. evidence should inattentive to being. whether her child’s well The “Precedent,” the court in Carl- concluded court, however, admonished reviewing such son, little value “is of prostitution admitted, “even if is is whether, determine simply We cases.... suggested purpose or admitted for case, particular the trial on facts of the witness, other, showing that this or ruling was within reasonable or court’s person. trying a case on bad We’re range.” 646 permissible Id. P.2d at 46-47 reputation facts. Not of the wit- 263 Moberly, Or. (citing Carter Nonetheless, at n. 2. ness.” Id. there (1972)). defendants cite prostitution her on references to were Transportation Penn Bach v. Central argument, and in cross-examination final (6th Cir.1974), Co., F.2d 1117 for the beyond going purpose well limited testimony tending to show proposition the trial court had admitted the evi- which drinking had been that a decedent before reviewing dence. court Consequently, generally accident is fatal relevant prejudicial held that the admission was contributory negli- consideration of jury’s ordered new trial. gence. court evi- held that similarly The instant case was drinking dence admitted the decedent’s danger fraught dogmatic judg with the should have been excluded because it was ment. When the motion limine was ar from too remote the time of death. urged that gued, counsеl for defendants disap- relevance of such evidence *5 [T]he testimony previous of occurred the what long drinking if the occurred so pears evening canyon party at ad the should be could before the accident alcohol purpose showing for the limited of mitted any on dece- longer no have effect the may physically Evan have been ex that of dent’s conduct. The value suffering at hangover from a hausted closely such evidence must be sсrutinized judge, he The the time drowned. trial prejudice possibility the to the to avoid comments, in by apparently reflected his charged negligence. party with testimony to let that into evidence tended was Id. at 1121. The excluded evidence purpose. only for that limited decedent, accidentally was the who that jury was told The trial the never that. evening, gone on a Saturday killed on had attempt to the court made no have previous Thursday eve- drinking spree the testimоny pur one consider the volatile early Friday morning. The de- ning another, as R. pose but not for in Patricia expert any that alcohol testified fendant’s only judge not failed v. Sullivan. The by spree decedent on his consumed the the he com jury, that distinction to make present not still be blood could presence of the the error. In the pounded testimony Saturday evening. Since objection to the testi jury, he overruled an spree drinking could effected boys’ mony concerning of Rod Hunt apportionment negligence jury’s high stating that illegal liquor purchase, decedent, held that its admis- the court purchase as evi error. could consider sion constituted reversible he physical condition when of Evan’s dence Sullivan, Alaska, 631 In R. v. Patricia offered No evidence was drowned. child (1981), the mother of a liquor consumed show the amount Evan against landlords for their brought suit alcohol, any, if to show the amount or sustained, allegedly caused burns the child he With body in his when drоwned. still by bedroom. heater in the child’s a court, guidance from the limitation or out testimony that defendant adduced con to draw unrestricted was left in the prostitution engaged had con testimony that Evan had from The trial clusions prior to accident. months liquor the quantity an unknown from that testimo- sumed court took the view that testimony as- expert evening before. No infer she was ny logically one could that lasting sisted effect of the The distraction caused erroneous previоus evening. alcohol imbibed the of evidence is admission evident the fol- After lowing: the trial court admitted into must now whether We determine testimony illegally that Evan had erroneously testimony admitted “had a liquor purchased and had consumed some bringing influence in about the substantial canyon plaintiffs of it party, at such that we set aside the verdict” must produced testimony. rebuttal This testimo- Bethers, jury verdict. Bambrough v. su- ny that Evan very was “didn’t drink In their pra. closing argument to the much,” reasonably that he talkеd and ra- defendants stressed that their conduct did any way during tionally evening, not in cause that he They Evan’s death. importance safety discounted the equip- young pact they and a friend made a that missing ment from anymore,” the boat and the effect “party would thereafter operation Instead, of Kevin’s lives, they change that their and that argued they that caused Evan’s conduct prepare they would to serve missions for First, death. they pointed out that he own their church. While Evan’s character was slept only during about one hour trial, it not on became an issue after the period thirty-six prior drowning. hour to his unbridled admission testimony of Evan’s Second, they argued that a water skier illegal purchase and consumption of alco- beyond not ski physical should endur- hol. partying consuming and that ance alco- Also, testimony prejudicial was be- beverage “negative holic would have a ef- cause there was no evidence that Evan Last, fect” on a skier’s they endurance. any signs showed of hangover during urged that Evan did not respond with rea- day. vigorous activity skiing His was emergency care to the situation he sonable any impairment. inconsistent with He They pointed testimony in. showed no exhaustion fighting until he was took his life off when high attempted waves lake when he given girls, another made no effort Significantly, reach disabled boat. on, adjust slipping it. After instead of although there was no Kev- Kevin, staying wearing with who was in had liquor party, consumed at the *6 good-fitting jacket, away Evan swam from drifting was also unable to reach the boat. him. boys When two decided strike out why jury do not We know found lake, for shore of the west Evan swam negligence proximate Evan’s be the sole so far ahead that Kevin tried to slow him may of his death. cause It down so could catch up, but Evan removing jacket. of his If because “yelled encouragement kept back on.” so, of drinking preju- evidence was not testimony The erroneous admission of the way we have no of dicial. know- might compared placed be to a drop of ink presume that ing this and cannot seen, of milk. long a vessel It cannot be by influenced the evidence of his was surely but it pollute remains there to its Yet, out, drinking. pointed as we have contents. We hold that in these circum- consumption highly of his was evidence stances, the trial court committed reversi- jury’s and inconclusive. The ver- indefinite in admitting testimony ble error of dict could well have bеen the result of illegal purchase consumption Evan’s of shifting away its attention from the facts beverages. alcoholic every judging of the case and one of Evan’s actions before and after dis- remaining The three be dealt issues can away abled craft drifted as a natural conse- briefly guidance with of the trial debility. quence of alcohol-induced The retrial. court on of value of so little The trial coming great properly lati- court refused to substance with such clearly outweighed preju- statutory tude was instruct the that there awas may jury. requirement dicial effect it have had that carried an anchor be argue any U.C.A., negligent and that error was 73-18-8 boat. aboard the § anchor, harmless, of an thus the instructions leave doubt requirement is silent (4) calls for such addi- understood although subsection our minds that promote equipment designed the defendant owners were liable for tional persons as the safety navigation and negligence operation Kevin in his (Division Parks and Recrea- Commission proper and for which tion) may find to be for a new trial. Costs award- Remanded regulations. rules and provided
has its plaintiff. ed to A60-01-3(3)(b)(12) Admin.R., 4 Utah (1975) use of an anchor: prescribes the DURHAM, JJ., and VE- STEWART vessels, except capa- those “Anchors—All CHRISTOFFERSON, Judge, NOY District beached, and all motor being safely ble concur. equipped Class 2 and 3 shall be boats of weight line of sufficient with an anchor and HALL, (dissenting): Chief Justice length securely anchor such vessel.” join opinion I of the Court do not a defendants’ boat was Class Because unpersuaded I remain of the exist- because motorboat, statutorily be an anchor would prejudicial error. ence of only if the could not be safe- required jury may majority concedes that expert witness dis- ly Plaintiffs beached. neg- act of concluded that Evan’s well have beaching of the capability of safe puted discarding his life a ligence in boat; it. The issue defendants’ assertеd so, if proximate cause of death properly fact question a thus became evidence of his alcohol con- admission of jury without the instruc- submitted prejudicial sumption not constitute plaintiff. requested by the tion Nevertheless, overturns error. the Court instruc requested also an Plaintiff process using a nebulous verdict presumption that the decedent tion on the the fact rationalization which overlooks safety, for his own exercised due care amount of addi- that there is a considerable give. De the trial court refused which part of negligence on the tional evidence of Erickson, 23 Utah 2d v.Mille supports the verdict of amply Evan that issue, hold (1969), dispositive on that jury. party produces ing opposing once the that slept Evan had The record reflects that as to the nonexistence prima facie case hours be- very during thirty-six little fact, disap presumption presumed death; him- fore his that he over-exerted pears. Defendants adduced reason; skiing beyond self water lifejacket in order had discarded his requested stop skiing when he refused to negli that was to reach the boat. Whether so, windy condi- notwithstanding the to do ques gence the circumstances was under *7 tions; preserver; life that he one discarded fact, thus dis presumption tion of replacement that he failed to utilize appeared. Kevin Wistisen preserver; and that he left refusing erred in The trial court ashore. during to swim behind their effort requested instruc give jury plaintiff’s verdict jury supports This evidence also liability the owners vicarious of tion on the is- negligence and causation on both the opera minor for the action of a of a vessel re- necessity of sues, all without U.C.A., 73-18-18. imposed tor consumption evi- upon liance the alcohol the basis of Statutory liability was dence. case, to instruct and the refusal plaintiff’s the tri- deciding, that theory Assuming, possible without deprived plaintiff admitting the al court erred in v. States liability. See United Ratcliff error. harmless Association, consumption, it was La.App., 180 alcohol Automobile reversal, substantial justify In (1965). Although defendants order to So.2d shown must be prejudicial error jury found all defendants point out that the give rise to a reasonable in likelihood that error, the result absence would have Utah, STATE Plaintiff and different.1 The facts this case Respondent, showing. such a
belie contrary I also take a than view does the Raymond EATON, J. Defendant regard
Cоurt the contention that the Appellant. judge refusing trial give erred jury an liability instruction on the vicarious No. 19926. of the owners of the boat.2 Supreme Court of Utah.
The majority expresses anxiety as to jury whether the understood that the de- April 1985. fendant owners of the were liable for any negligence of Kevin Wistisen
operation of the boat. a review
of the record reveals that at the time coun- taking exceptions
sel was to the court’s
instructions to jury, the court ex-
pressed its view that the substance of the
verdict form had advising the effect of
jury, law, as a matter of of the vicarious
liability of the owners of the Al-
though exception counsel for took ruling,
to the the record further reflects presentation closing argu- of his
ment to accepted counsel in fact interpretation
the court’s of the effeсt of jury specifically verdict. Counsel ad- boat, you
vised the entrust a “[i]f motorboat, person age to a under the
eighteen years negligence, any, if operation chargeable of the boat is
to the owner of the boat.... The court
has you instructed as a matter of law that
is the case.” It is abundantly therefore presented
clear that the case was plaintiff’s theory of the case. jury having found both defendants negligent, ample
to have been basis
being support record to ver- theory liability,
dict on the it is vicarious
clear that the court did not err in its instruc- jury.
tions to the
I would affirm the verdict. *8 ZIMMERMAN, J., participate Yengich, City, does not Ronald J. Salt Lake herein. appellant. defendant and 61; Thomas, Ortega liability 1. Utah premised R.Civ.P. 14 Utah 2. Vicarious on the fact 296, 300, (1963). eigh- 2d that the boat was entrusted to one under 383 P.2d years age. teen