Ryals v. Broadbent Development Co.
565 P.2d 982
Idaho
1977
Check Treatment

*1 RYALS, Plaintiff-Appellant, Walter B.

Cross-Respondent,

BROADBENT DEVELOPMENT COMPA-

NY, Corporation A Delaware authorized Idaho,

to do business in the State of

Defendant-Respondent, Cross-Appellant.

No. 12051.

Supreme Idaho. 1977. Denied

Rehearing July

from a a door through and thence alley rear at the stairway. platform down a The top of was stairway unstable edges stairway steps landing and the use cupped long were from worn and badly plat- and lack Additionally, of repair. Ryals no stairway form had handrail. to the boiler room used that entrance inci- 12 times without approximately mentioned dent and was aware above carried his tools down the Ryals conditions. stairway, pump disconnected the stairway. up carried tools back his landing top While on the stairway, doorway out of he leaned He then alley. placed his tools to took a straightened, turned his left and begin his second descent step backward to Burke, Elam, Jeppesen, Jeppesen Karl he fell off At that moment of the stairs. Boise, appellant. Boyd, for Evans & on the landing platform, the side of the to his injuries sustained concrete floor and Moffatt, Thomas, Bar- Papak Paul J. elbow, shoulder, hand and wrist. left Blanton, Boise, appellee. rett & for trial, special returned Following SHEPARD, Justice. defend- in which found they forms and also ant guilty is an an order Broadbent granting This was the found that Broadbent’s Following re- The Ryals’ injuries. proximate cause special relating turned verdict forms plaintiff Ryals found that proximate cause which fa- also found negligent, specifically but in addition vored Thereafter the trial interrogatory judge special concluded that the verdict of fourth relating Ryals’ negligence proximate not a proximate cause was injuries. he cause of the accident or finding erroneous and made a different relating causation ordered Broadbent filed motions trial in the absence the verdict or in the alter- notwithstanding lowering accepting remittitur the dam- native, a new trial and for a remittitur ages. Upon plaintiff, refusal of those were excessive. claimed ordered a new Plaintiff judg- The trial court denied motion for appeals therefrom and defendant also cross- found, ment trial judge how- N.O.V. asserting that the trial erred appeals ever, jury, to the contrary finding of granting the new trial addition- in not Ryals’ negligence proxi- was a the order of the grounds. al reverse injury. mate new trial and affirm granting plaintiff Ryals’ negligence concluded that relates court’s action as it was a causative factor his cross-appeal. extent damages. total Ryals B. trial unless Plaintiff-appellant Walter therefore ordered new mechanic, agreed a reduction Ryals accept and on e., $36,000. of 45% i. pump remove a by his employer directed See, 59(a)(6). Ryals appeals IRCP in the base- Plaintiff from the boiler room located trial and that order the new defendant-re- building ment of owned arguing Compa- cross-appeals Broadbent Development Broadbent spondent the new trial boiler room The sole access to that ny. e., have grounds, been based on additional i. evidence, assign credibility or non-credi- excessive damages, insufficient evidence to bility to the testimony witnesses, there- support a defendant was upon reach a verdict and that negligent and that any respect court, acting upon motions for trials, court’s instructions were erroneous. De- should not substitute their judgment for fendant also asserts error in the admission that of a jury.

of certain evidence. hand, On the other another line of cases Plaintiff’s from the indicates that in Idaho the trial judge is the new trial raises once again the continu- possessed of extremely broad discretion ing and vexing problem, wit, acting as a juror” “thirteenth who is enti- tled to

“What function override the does a trial verdict of the other judge per- jurors form if he after a conceives that jury has rendered a has not verdict See, been done. on the basis highly Harper, 84 Idaho conflicting evidence 220, which will 370 P.2d 197 support (1962); a Say Hodgin, verdict for either 64, Idaho (1911); 116 P. 410 defendants? Hall v. May Johnson, 190, judge, as the 70 Idaho states, 214 P.2d 467 (1950); in effect Eshelman, reverse the Warren v. action of the 88 Idaho jury solely be- (1965); cause of a ‘gut Rosenberg v. Toetly, reaction’ that the verdict Idaho (1969); did not render 456 P.2d 779 ‘substantial Deshazer v. justice’ Tomp- or is kins, supra. ‘contrary to the evidence as a whole?’ Or on the other hand is jury truly the In the case at bar we find no necessity to trier of the facts?” Tomp- Deshazer v. resolve the philosophy above conflict in kins, (1969) P.2d 402 which is indicated by parallel lines of dissenting opinion. cases. All such cases have arisen context of general

The instant jury case is one in verdict and the which a or lack trial to a need thereof for a trial jury judge to act sought and obtained. as a juror One of the thirteenth most and exercise his basic discre- precepts sys our tion grant tem of jurisprudence is motion for a new trial that determinations when the fact feels the clear jury weight will except in extraor dinary circumstances, admissible evidence is against general be overturned by the court, jury verdict may trial or albeit there appellate, if there is substan conflicting tial evidence evidence to sustaining those factual find addition, general find, however, ings. In verdict. We no Ida- deference has been ho specifically case abiding dealing rule in Idaho with the discre- respect also tion complaints, grant dismissals of a new trial summary judg where, ments, here, as is the situation the jury has pleadings, non- suits, by special delivered its verdict interrogato- directed verdicts and judgments not ries under See, provisions 49(a) withstanding the verdict. IRCP 12(b), IRCP (b). (c), 41(b), 56; 50(a), (b), Bank of Commerce Baldwin, (1906); Idaho 85 P. 497 In the case at bar as a result of the Falls,

Hendrix v. Twin 29 jury’s special interrogatories the focus is P.2d 352 extremely points narrow and only ques In the cases of Baldwin v. Ewing, 69 tions of negligence and proximate cause. (1949); Indeed, National this Court has repeatedly laid down Grube, Produce Distributors v. the rule that such clear factual questions (1956); Bowman, 297 P.2d 284 Checketts v. are to be resolved the jury. Lundy v. Hazen, 220 P.2d 682 and the (1966); 411 P.2d 768 dissenting opinions in v. Tower Sanchotena Schaefer v. Sales, Elswood Trailer Newton, Ebert v. Deshazer v. Tompkins, supra, indicated The ques tions jury weight posed is to determine the by the special interrogatories bar, func- judicial oversight abolish provisions comparative our under 6-801) general tion returned a (I.C. further where a statute negligence § do intend limit verdict. Nor the factual determination focus of a trial court quantum discretion requiring finding based on a for new trial motion negligence of respective found, specified as did The jury and the defendant. in IRCP 59. behalf of the judge, and the trial now turn to the issues raised part of the defend- found cross-appeal. argues He plain- quantum It is as to the ant. the trial court should have the mo being tiff's trial on grounds. tion for new additional exists be- where variance He first asserts and the tween the find- rendered was excessive as *4 judge. jury the trial found that ing of matter of law in that the award is greater was negligence not a the reported than the en any other in any degree. causative factor involving injury tire United States to act basis of the judge purporting on the wrist Be that as it the may, and/or elbow. presuma- as did the and jury same evidence on is the question sole whether law principles under the same of which bly the supported by amount of is jury had announced to the in his instruc- he that it is. The evi evidence and hold of assigned tions a causative factor $2,700 incurring the suggests the suggests medical and also out-of- expenses wages ten pocket years loss of substantial evidence which While there is per year. There is evidence also substantial by the trial supports that determination regarding plaintiff’s pain suffering, and the evidence judge, equally there substantial having a anxiety nearly useless hand supports jury’s special interroga- the pain. arthritic Thus continuing degree no of causative factor tory assigning jury we do find the was not that award be negligence. It could con- law in was excessive as a matter of that it plaintiff’s negligence the cluded evidence. supported the on platform away backward stepping was alley from the door a causative factor asserts that the evi Defendant next injuries. It, of the fall which resulted in his finding dence was insufficient to however, be just logically could conclud- negligent any was that the defendant was negligent although argument largely is based degree. Such particular stepping in so backward on at trial admitted the fact that he of which platform, defects exactly precisely not know that he did aware, injury would have nevertheless fall thus the what had caused him to of a by the installation sim- prevented have based could to install a handrail and that failure ple We speculation. part handrail disagree. pro The circumstantial evidence hence, negli- the defendant’s defendant and from which the vides a substantial base pre- factor was the entire causative gence draw its factual conclusions could subsequent inju- fall and cipitating the proximate cause. Dent negligence and ries. Mutual Hardware Cas. of Nam Splinter City action of hold therefore that pa, 74 Idaho verdict of overruling court’s factual Defendant also asserts on the clear and duty defend- regarding his own instructions substituting

issue of causation prem- on its ant hazards regarding im obvious of causation quantum argument ises assumes jury. was erroneous. The province invaded properly First, argues that two in the case forms. defendant holding, we do at least In so fore- inspect, mount sacri- duty had no whatsoever not to be importance obvious hazard any warn of or correct ficed to brevity.” business which should be apparent We have defendant-cross-ap- examined as fol- provides invitee. Instruction No. pellant’s remaining error assignments of lows: and find them be without merit. premises may “The operator owner or order of the district court injuries to an invi- be liable for physical trial is with reversed instructions that the the unsafe tee proximately caused ac- reinstated. The premises even dangerous condition tion of in refusing the trial court and known though the is obvious danger and cross-appellant’s additional operator owner or to such invitee if the a new trial is affirmed. appellant. Costs to to expect reason premises the invitee would encounter proceed BISTLINE, J., concurs. to a the obvious because reasona- danger J., DONALDSON, concurs in result. the advantages ble man in his position (or disadvantage BAKES, Justice, doing so not do- concurring specially ing so) outweigh apparent part would dissenting part: risk.” While I agree majority’s rever- instruction taken almost verbatim That case, sal of I action in this Torts, 343A, 2d from Restatement of ed. § I disagree analysis disposition. with its *5 accepted and has been since widely its im- that the trial would hold instead adoption, Annot. 35 A.L.R.3d 230 the properly used remittitur and also that Although we find no therein. and error trial plaintiff of a new because the v. argues Brough, defendant that Otts im- the accept refused to remittitur 124, (1965) and Mann v. Idaho the proper, and I remand this case to would Stores, Safeway Inc., Idaho P.2d trial of the defend- court for consideration result, contrary mandate a a new trial and for remit- ant’s motions for not are agree. distinguisha- do Both cases by raised grounds titur on the alternative in that ble there is no indication therein the the defendant. dangers were the or invitees aware of sought post The trial motions event of the premises the owner verdict, a judgment notwithstanding the invitee expected should have an to encoun- trial new trial The new and remittitur. the danger.

ter grounds motion alleged numerous argues Defendant further evi- insufficiency of the request, including the defendant’s regarding duty instructions dence, verdict, errors excessiveness plaintiff overly repetitious toward were occurring the and errors during unduly the emphasized plaintiff’s theory of jury. several of the instructions case. While is true that there is some it was on request grounds remittitur the between overlap repetition among excessive, damages the award was instructions, performed of them the each by it the evi- supported damages was not legitimate different function and while the evi- dence. The trial court ruled that the not perhaps instructions are models of con negli- supported not wording, provide grounds cise do they gence proximate was a plaintiff they overemphasize for reversal nor do cause injury and directed that the of the case. As stated plaintiff’s theory rewritten with verdict be 12, 20, Stuchbery Harper, negligence of plaintiff proxi- inserted as P.2d mately accident. It causing grant- then “In trial based on its comparative his instructions the remittitur make new repetition granted avoid unnecessary assessment trial accept “in and concise does not instructions as brief event However, para- Judgment possible. clarity is as entered Thus, frequently recognized is This Court with this order.” accordance new trial clear that motion for of a trial unique position refused only because the his Because of motion for portion damages award remit that issues, parties and proximity to the trial court had determined which the itself, the presided over the having negli- own plaintiff’s attributable to the a wide latitude mak- given is that the trial court did not gence, and also ing his decision: asserted rule the other this, has, cases “This court in such in its motion. the rule that where itself to committed to enable The function of remittitur is opinion the trial court entertains the trial court to relieve defendant law or is in accord with the verdict not damages when the an excessive Hollar, justice, Poston v. [64 is that the amount awarded issue v. Twin (1942)]; Egbert light was excessive in of the evi- Co., 11 P.2d Falls Canal dence, par- sparing thus the court and the is satisfied that the verdict not through expense going ties and time all,of contrary the issues. Checketts or is to the evi- supported Bowman, 220 P.2d dence, Smith, Riggs v. an election given 358; Matthies, 49 Stone portion the trial court either to remit that 951; Johnson, 287 P. Hall award which the court has or is convincedthat the excessive or submit determined accord with the clear verdict is in this new trial. The trial court case was weight of the evidence and that ends using remittitur to substitute its improperly by vacating would be subserved negli- assessment that the own it, Ry. Tidd v. Northern Pacific gence was 45% causative his 270 P. Turner v. First plaintiff’s negli- view that Bancroft, Nat. Bank gence was not the his 14, may grant P. a new trial. Such tool exist injuries. remittitur does not *6 legal matter is addressed to the sound to enable the court to decide ultimate fact of the trial court and will not discretion questions liability party, but by ap- it be disturbed this court unless questions of excessive pears unwisely to have been exercised 6Á generally, awards. See Moore’sFederal 59.05; Miller, Practice, Wright 11 Fed- manifestly & abused.” Sanchotena § Procedure, eral Practice and 547-548, § Co., 74 Idaho 264 Tower with the is that difficulty majority opinion (1953). P.2d 1025 recognize it fails to that the trial court used also, Carothers, See Klundt v. improperly the remittitur and consequently Olson, 95 (1975); 537 P.2d Dawson v. needlessly grapple compar- tries to with 507 P.2d factfinding ison the trial court’s and the (1962). 84 Idaho Harper, finding. Compare Smith & Linder- Olson, 94 appeal In the first of Dawson v. v.man Basin Great Grain (1972), the defendant (1977). post had motions for a filed I conclude that the trial court erred in notwithstanding verdict and in the al- the motion for a new trial on the granting The trial court ternative for new trial. refused to remit ground On this Court granted the JNOV. assessment of liabil- according court’s JNOV, of the but granting reversed the However, proper course for this ity. court for remanded the case to the trial to remand this case to the Court for new trial consideration of the motion for further consideration of the trial court On passed upon. which had never been motion, passing rather than the motion remand the grounds the alternative as the ground done. for new trial on the The dis- thority concerning instructed. this the stan- erroneously Court new trial trict dard by which a trial to consider a Olson, trial, Dawson appeal. motion for new to me affirmed seems 507 P.2d drawing the general distinction between verdicts, and special concluding and then us in We have the same situation before that motions for new trials where there is a Court in Dawson I. this case that faced the special are controlled decision is in agreement Here the entire Court of this Court in National Produce Distribu- ordering the trial erred in remitti- court tors, Grube, Inc. v. P.2d or, tur of (1956), dissenting opinion and the in Desh- alternative, trial, albeit azer Tompkins, However, for the trial different reasons. in fact this Court has now com- passed upon court has never the various authority. mitted itself to that line of raised the defendant in fact that the returned a for new As rather support of its motion I, general than a verdict does not—and should in Dawson those issues should held not—affect the to the trial court for its deter- standard be remanded court for its review motion new trial. superior mination based contact case, particularly ability this peculiar of the trial opportunity witnesses, observe rather personally court to better evaluate what occurred issues, initio, than rule those ab at the many has been expressed times this appellate level. Court, following repre- of which the is only clear, As the make above cited authorities sentative: appellate does not use an a trial opinion “When court is of the standard of review when on motion evidence, conflicting based on function is closer for His conflict, or even where there is no is not of a a certain equity, justice, may accord with law or juror” he is a extent “thirteenth —not grant Harper, new trial. Grimm v. purpose the ultimate fact 370 P.2d 197. The reasons case, as was in this attempted issues recognized such rule are being case, but so that he can evaluate the fact- court, seeing hearing findings grant witness, may have formed such a where, opinion, in his the verdict “is not in as to credibility doubt testimo- justice.” accord with law Dawson [the] an ny, impression or entertained such Olson, the surrounding circumstances and atmosphere of the as to conclude *7 that Again emphasized it must be impartial that fair trial not rule on the had; trial court in this case did that the exercise of such grounds for a new defendant’s alternative power is not an invasion of the however, proceed- has majority, trial. The facts, upon function to decide reject to review and these alternative granting a new of fact questions sitting not as trial court grounds, again will for a be submitted to latitude in such matters based broad Eshelman, decision.” v. Warren witnesses, personal observation of the (1965), quoted very as an with a nar- appellate but court Olson, in Dawson v. of a cold record. row standard review (1973), Rosenberg Toetly, P.2d This case should be remanded to (1969), and Desh- pass court to allow to first those Tompkins, supra. azer v. grounds for “The trial sees the witnesses on witness-stand, Finally, while the claims ab- observes the manner appar- any testifying, apparent stain from effort to resolve their notes their can- it; fairness, of au- or the hears between two lines dor or want ent conflict counsel, and, short, in argument Idaho, Plaintiff-Respondent, sources informa- possession many STATE inquiry in an to whether tion valuable miscarried or and which LAWRENCE, Eugene Dale appear made to the record cannot be Defendant-Appellant. appellate which comes case No. 12249. court; fact, appreciating appel- held, so frequently late courts have of Idaho. Supreme Court law, may be announced settled possess trial courts discretion to be ex- wisely ercised in the or refusal trials,

of new and that such discretion appellate

will not be court dis- manifestly clearly unless it

turbed been

appears unwisely to have exercised abused. manifestly

and to have holding

Such has been the this court Say Hodgin, cases.”

many quoted 116 P. Harper, supra.

This reaffirmed recently this role of & Smith Linderman Co., supra,

Great Basin Grain when we stat-

ed: applied

“The more liberal rule to orders recognizes the ad

vantage enjoyed by the trial court

reviewing the case because of in the participation

active trial.” 98 Ida 275-276, 561 P.2d at

ho at 1308-1309.

As a result of the decision we have today,

now the function of a changed a motion for new ruling upon foregoing in the cases to expressed appellate of an intermediate reviews the merely record to deter-

mine whether there is evi- the verdict. I dissent conclusion.

McFADDEN, J., concurs. C.