*1 (e) Unsupported by substantial evidence submitted; LEACH, of the entire record as David L. view Trustee for the Heirs of Raye Leach, decedent, Anne David (C2- Leach, individually, Appellant L. (f) Arbitrary capricious. 87-1173), (Emphasis supplied.) This review is limited v. decision, determining whether the find- erroneous;

ings, or inferences are review DAHL, ESTATE OF Sharon M. contemplated. of the actual rule itself is not Deceased, al., Respondents, et Department’s appli claims the CNC Gary Deyo, al., Appellants W. et cation of Minn.R. 9549.0060was unreason (C2-87-1173), (1) prior able because: CNC’s owner was Laurel Ann Stroman and Darwin profit, not motivated to sell CNC for a but Towne, LeRoy Respondents. impending was rather motivated foreclosure; (2) K buyer, CNC’s P & Enter DAHL, Duane as Trustee for the Heirs (3) prises, by profit; if was not motivated Dahl, Deceased, of Sharon M. Department’s Appellant (C3-87-1554), decision is allowed to stand, compete CNC will not able to v. homes; nursing (4) prevent with other continuing the foreclosure and CNC Laurel Ann STROMAN and Darwin actually any eliminated incentive to sell Towne, LeRoy Respondents, CNC. State Farm Mutual Automobile persuade None of these concerns us that Company, Insurance Department’s application of the rule Defendant. particular, In was unreasonable. we note Dawn KRALING Trustee for the there is no the record Hart, Deceased, Bradley Heirs of regarding addition, profit motivation. In (C3-87-1196), Appellant argument preventing CNC’s the fore- any closure eliminated incentive to sell v. CNC is absurd: CNC was in fact sold. STROMAN, al., Respondents. Laurel et DECISION MOORE, (C1-87-1195), Appellant Lois The order of the Commissioner is af- v. 9549.0060, 5.A.(1), subpts. firmed. Rule 5.A.(4), and 7.A. of the Minnesota Rules is DAHL, Deceased, By Sharon invalid, unreasonably ap- not and was not DAHL, Through surviving Duane plied. spouse, Laurel Ann Stroman and Dar Towne, LeRoy Respondents, win

Affirmed. al., Gary Deyo, et (C2-87-1173). EICKHOFF, al., Ann Barbara et Appellants (C2-87-1173), DAHL, Deceased, ESTATE OF Sharon M. al., et Laurel Ann Stroman and Darwin LeRoy Towne, Respondents. *2 BUENGER, al., Appellants R. et Sheila (04-87-1174, C4-87-1966),

v. DAHL, Deceased, M. OF ESTATE Sharon al., Stroman et Laurel Ann and Darwin LeRoy Towne, Respondents, (02-87-1173).

Gary Deyo, Appellant KIEFER, Appellant Annette (00-87-1284, 09-87-1963),

v. Representative Duane DAHL as Personal al., Dahl, of the Estate of Sharon et Laurel Ann Stroman Darwin Le

Roy Towne, Respondents. (McKenzie) HOVEY, Respondent,

v. Representative Duane DAHL as Personal Dahl, al., of the Estate Sharon et Laurel Ann Stroman and Darwin Le Roy Towne, Respondents.

Joyce EVERY, al., Respondents, et

v. Representative Duane DAHL as Personal al., Dahl, of the Estate Sharon et Laurel Ann and Darwin Le Towne, Respondents.

Roy al., FRANK, Cindy Respondents, et Representative Duane DAHL Personal al., of the Estate of Sharon et Laurel Ann Darwin Le

Roy Towne, Respondents. C2-87-1173, C4-87-1174, Nos. C1-87- 1195, C3-87-1196, C0-87-1284, C3-87-1554, C9-87-1963 C4-87-1966. Appeals

Court of of Minnesota. 2, 1988. Feb. 4,1988. April Review Denied Klampe, Rochester,

Michael D. for David Leach, L. et al.

Peter Sandberg, Dunlap C. Keith Finseth Sandberg, Rochester, Berndt & for Estate et al. Joseph Pingatore, J. Klampe Pingatore & Nordstrom, Rochester, Gary Deyo, for W. al., et Barbara Eickhoff. Angel,

Charles F. O’Brien Ehrick Wolf Rochester, Deaner Downing, & for Laurel Ann Stroman. LaBore, Assoc.,

Lee L. Lee L. LaBore & Hopkins, for LeRoy Darwin Towne. Stephenson, Rochester, Mark G. Duane Dahl. Lehman, Mahoney Dougherty

James M. Mahoney, Minneapolis, & for Dawn Kral- ing. Shulman,

David A. Gartner Shulman & Erwin, Rochester, for Lois Moore. Michaels, Ryan, William J. Seeger, Ro- Arnold, Rochester, senblad & R. Sheila Buenger, et al. Benson, Preston, R.

Robert for Annette Kiefer, (McKenzie)Hovey, Joyce Ev- al., ery, Cindy et Frank.

Heard, considered and decided RANDALL, P.J., and HUSPENI *, STONE JJ.

OPINION

RANDALL, Judge. 10, 1985,

On December a multi-vehicle Highway on accident occurred between Township and Marion in south- Rochester ern Minnesota. The accident resulted personal injury numerous lawsuits wrongful injured The three death claims. personal representa- individuals and the Stroman, Towne, tives of the deceased sued bifurcated, Deyo.1 The trial Dahl and was * Acting judge creating Appeals ap- were filed four of the Court of 1. Several actions classes Const, pointment pursuant plaintiffs: to Minn. art. § damages separately road. As she liability and to be toward side

with lane, coming tried. back into her own Stro- and, time, up man looked for the first no- liability portion of the At the end of the approaching op- ticed Towne’s semi returned a verdict of no liabil- trial the posite lane. A witness testified the semi or, moved for ity. All JNOV “hogging point, the road.” At one alternative, trial. The trial court a new thought she would be able injured parties motions. The denied the semi, colliding but could not. avoid appeal. and remand for a new We reverse bumper of the semi collided with respondent Stroman. trial as to quarter panel left rear of Stroman’s car. FACTS car, colliding After with Stroman’s 10, 1985, jackknifed semi and continued to slide in a morning of December On the Highway jackknifed position. major storm left 52 between Township completely Marion Rochester and *4 a Towne’s semi collided head on with with ice and snow. Various wit- covered by commuter van owned “Root River Rid- impossible it to see the nesses testified was driver, The van’s and a ers.” Sharon distinguish shoulder center line or from Leach, passenger, Raye van Anne were traveling A line cars the road. of was remaining passengers, killed. The van speed approxi- lane at a of the southbound Buenger, Buenger, Alice Annette Sheila mately per 35 miles hour. Kiefer, Eickhoff, Hovey, Barbara by A car driven witness James Schott Frank, Moore, Joyce Every, Cindy Lois and just respondent ahead of Laurel Stro- injured. by Gary Deyo were A car driven traveling man. Stroman testified she was semi, Hart, killing Bradley then struck the right 35 to 37 miles an hour when the tires vehicle, passenger injuring a in the of her car slid off the road and onto the Deyo passenger (passenger and another immediately try shoulder. did not She suit). party not a to this get up highway. After travel- back on the Severson, Rebecca car Witness whose block,” “a about Stroman determined Stroman and the commuter between pull up that she on the would have back van, managed by pull- to avoid the collision approaching a road because she was mail- ing onto the shoulder. Witness Schott tes- box. She believed she would hit the mail- by tified that the semi driven Towne was pull right if she box did not her tires back approached the center line it over onto road.2 colliding scene. accident Schott avoided pull up As Stroman tried to her car over by pulling right; with the semi over to the lip get right of the road to her tires however, stopped through he and watched began roadway, back onto the she anticipating his rear view mirror trouble. swerve. She skidded across the center testified that she had driven line, Stroman oncoming into the lane. knew the She every portion Highway day drop ditch on the left side of the road was a off, prior three or four months to December 10. and she made a conscious effort “lip” by steer her car line She knew there was a formed back over the center (1) against Passengers (4)Deyo. Deyo commenced action the commuter van: The van (the driver), passengers brought by the sued Dahl van Towne Stroman and Towne. Claims (the driver), (a Deyo against Deyo voluntarily passengers semi driver involved in the van were accident), (the prior injured passenger and Stroman driver who skidded to trial. The dismissed semi). Deyo out of control and collided with Towne’s in the vehicle has not commenced an (2) parties Estate Dahl. The estate of Dahl com- action. The in the various actions against menced action agreed Towne and Stroman. to consolidate for trial as to the issue of Hart, (3) pas- Damage litigated Estate Hart. The estate of a liability. issues were to be vehicle, senger Deyo’s action commenced separate proceeding. a against Stroman and State Farm Insurance that the Company. brought Deyo 2. Other evidence showed mailbox was State Farm party feet from the shoulder she would Towne into this action as third defend- several hit it. ants. not have photo, point away and the shoulder at that on the road cut model of new and worn tires, highway. Towne testified that he was tractor and several freehand draw- ings lane of when he struck during his own traffic made witnesses their testi- collision mony. that the with Stro- pull caused his semi to into the north- man deliberating, While asked that jackknife. lane and He bound testified photograph brought aerial into the with knocked him jury room. The court jury’s denied the steering side and his on his disabled mecha- request, any and refused to allow Testimony nism. at the trial indicated that illustrative exhibits into the room. of the tires side his some on found that of the respon- none had Vw approximately semi inch tread. The negligent. dents were moved vehicle, traveling Severson behind Stro- judgment notwithstanding the verdict man, was able to a collision. avoid (JNOY), or, alternative, in the a new trial. Buenger, passenger Sheila the com- request An earlier for a hearing Schwartz van, muter testified that van was trav- was withdrawn. eling a short behind the distance Severson vehicle, although her view was somewhat ISSUES obstructed Severson vehicle and by denying Did the trial court err position in her the van. Severson testified appellants’ motion for or a new JNOV trial just that she saw the semi before it collided liability? on the issue of Stroman’s sitting the van and noticed driver *5 by 2. trial denying the Did the court err

behind wheel. She also testified that appellants’ pumped but, motion for or a Dahl the brakes three times at JNOY new trial liability? on the of opinion, least Severson’s Dahl “froze” issue right before the semi. by 3. denying Did the trial court err

Deyo appellants’ testified he was motion for or a that about new trial JNOV hour, per liability? 35 miles a short distance behind on the of issue Dahl’s only opportu- the He his van. testified that 4. trial instructing Did the court err nity avoid the was the to accident to turn to respondents the to determine whether left, point at which the he collided with negligent of were “at the time the acci- semi’s rear tires. dent?” trial, plaintiffs the At tried to admit a by refusing 5. Did the trial court err to tape video taken at scene a min- the few videotape of admit a the accident scene or utes the a after accident local television permit by refusing jurors to to take tape, among things, The station. other photographs of into aerial the location snow, lying showed victims in the de- a jury room? blanket, victim with a an ceased covered emergency helicopter landing taking ANALYSIS off, emergency using “jaws and the crew Standard Review tool of life” to remove victims from the of tape an van. contained interview with The standard of review JNOV viewing, After Towne. an initial the court competent any is there is evi “whether to tape, refused allow admission of the reasonably tending support dence finding highly prejudicial it and irrelevant. Co., Peppin Brady 372 verdict.” v. W.H. tape; offered edit the how- 369, (cita (Minn.Ct.App.1985) 374 N.W.2d ever, viewing after a second the court omitted). jury’s up A will tion verdict be again prejudicial excluded it as and irrele- con practically held the evidence is unless liability, only vant to was the which issue against the reasonable clusive verdict and litigated. being only minds reach one conclusion. Id. can (citation omitted). During trial, course of several granted A should not unless items evidence were admitted for illus- new trial prepon- purposes including contrary is so only, trative an aerial the verdict 98 fact, imply as to the road. In testimony

derance the evidence indi- to consider all the evi- failed cates that she “out of control” or or acted under some mistake wrong dence in the lane as the result of skid- motive, bias, improper feeling from some ding short, on ice. verdict as dis- caprice, honestly instead of clearly relates to is not it Stroman mani- exercising judgment. its passionately festly contrary to palpably the evi- court, having heard the testimo- The trial dence. parties and witness- ny and observed jury could The court concluded the reason- es, position in a than this court is better ably any have found that rebutted damages determine whether the were prima statutory negligence facie case of passion given under influence (1986). 169.96 claimed under Minn.Stat. § in the absence of a clear prejudice, and II, G-S, The court relied on 300 JIG which of that its action will not abuse discretion states: be reversed. that a The fact motor vehicle has skid- Inc., Aqualand Pool 257 Co. LaValle ded, alone, standing is not evidence 324, (citation (Minn.1977) 328 omit- N.W.2d skidding If the could have ted). An order motion denying a for JNOV prevented been the use of reasonable nonappealable. v. Farmers is Gertken care, it is of negligence. then 550, 411 Kensington, N.W.2d Elevator of II, G-S, agree that 300 We JIG (Minn.Ct.App.1987); Hagen, 553 State v. properly jury, submitted and that (Minn.Ct.App.1986). 382 N.W.2d 558 appellate normally courts are reluctant to arguments in the If the raised new trial interfere with fact finder’s assessment of area, essentially the this motion cover same negligence. Recently this court affirmed a Gertken, may court review the issues. finding part of no on the 553; at Hagen, N.W.2d at N.W.2d involving dangerous a driver in a case road crossing conditions and a car the center I. Gertken, line. 411 N.W.2d at 554. See Against Claims However, argue here de- *6 Appellants argue that spite great given jury to the deference a a law negligent as matter of on several negligeince (or, case, finding of this no grounds. Appellants’ arguments different complete negligence), a and detailed list of negligently operated include that Stroman driving her Stroman’s conduct and move- 169.- a vehicle violation Minn.Stat. §§ road, the led to ment across which the first 14, 1 (driving subd. a vehicle faster than is and, collision, others, undeniably, to the is existing and under prudent reasonable the should such that the trial court have (drivers conditions); 169.14, subd. 3 shall negligent stepped and found Stroman as special speed reduce their when hazards agree. of law. matter We exist); 169.18, 1(1) (vehicles subd. shall be roadway upon right argue the half of the no Appellants driven that reasonable 169.18, overtaking passing); did, when and and have as the mind could found and (when 1(2) (1986) right jury’s the half of a the supports subd. that no evidence conclu- roadway is to traffic while under properly closed sion exercised her that repair). operation construction care con- duty of due the and They the jury trol of her vehicle. claim did post-trial accompany- In a memorandum applied not the it the understand law as to motions, ing appellants’ the denial that, facts, the verdict con- and because is trial court stated: evidence, trial court trary to the erred testimony also heard about [t]he denying the motions for JNOV a new terrible road conditions—the snow and trial. cover, inability distinguish ice argue in each case cited shoulder from the road or the center the trial court did testimony respondent line—as well own which as Stroman’s JNOV, who lip grant on not the drivers lost con- responded about how she

99 were confronted with an emergency interrogatory trol affirmative as to Stroman’s situation, sudden negligence. unforeseeable event. reviewing the

After record and tran- II. agree script, we that the reasonably found, could not have Against Claims Towne evidence, totality on the based Appellants argue that prima Towne was slightly negli- Stroman was not at least negligent facie violating for regu laws and gent. lations requiring at least 4/32”tread on five ice, The roads were covered with and Trooper his tires. Farrington of the driving mph Stroman was 35 to 37 because Minnesota. Highway Patrol measured the she knew the roads slippery. were Stro- tread, semi’s tire and testified that several Highway man had driven spot 52 at this tires on the truck had less than Vk inch practically every months, day other tread. This issue fully developed layout potential knew the hazards of the jury, and we do not the finding disturb the road. Stroman hug- testified she was Jordan, no See Lamb v. ging side of the road when her 852, (Minn.1983)(evidence 333 N.W.2d 855 tires went onto the shoulder. Stroman must support verdict, be viewed to lip knew there was a from the shoulder reviewing may weigh court not evi slipped onto the road. She off the road on witnesses). dence or evaluate shoulder, to the but then continued to drive Appellants claim Towne also violat mph attempted about 35 bring she 169.14, ed (driving Minn.Stat. subd. §§ up her car back onto roadway. conditions) 169.18, too fast for subd. Stroman admitted that she went out of 1(1) (crossing line). the center Johnson v. control as she steered her car from the Inc., 212, Reinhard Bros. Co. 205 Minn. and, shoulder back onto the highway, while 214, (1939). 285 N.W. We find the control, out of crossed the center line into properly trial court affirmed find the semi’s lane of traffic. A witness testi- ing of no as to Towne. Unlike fied that Stroman over-compen- admitted Stroman, conduct and sating attempting bring when her car crossing the center line subject was the back onto the road. Stroman fishtailed disputed testimony. oral Some witnesses line, then, across the center wanting not thought they traveling testified Towne was go off the road on the left side because of a too fast for road conditions and that he was ditch, steep steered her car back across the across the center line. Towne denied those center line toward her own lane. Her com- allegations and testified he was in his own preceded back toward her own lane *7 driving speed lane and at a safe for the semi; collision with Towne’s and Stroman road testimony conditions. The of some testified that she did not see the truck until witnesses was inconclusive as to whether returning lane, she was into her own at Towne was across the center line. The thought which time she a collision was trial court did not abuse its discretion in inevitable. affirming jury findings the as to Towne. Stroman, As to we find that the combina- tion of her totality actions and the of her III. driving conduct, whole, taken as a consti- against Claims Dahl negligence.

tute at jury least “some” The passengers verdict of no as to is van claim the deter against weight negligent the of the evidence. We mination that Dahl was not is liability, only against weight They remand for trial on the of the issue the evidence. us, before claim of the road condition instructions to the trial Dahl was aware jury question experienced court to submit to the the of some loss of control of and had retrial, They prior causation as to Stroman. to the accident. also On vehicle court, own, special testimony passengers on its of point should mark the van

100 Stroman, not or turn to the we ask the trial court to reformu- that Dahl did brake accident, jury and that she “froze.” late that instruction so it is clear that to avoid the driving conduct can all of Stroman’s Towne, we do not disturb the As with considered. findings Again, to Dahl. unlike jury Stroman, admis- there are no on-the-record V. who died the collision. sions general subjective Tape al- only and Exclusion Video There were of negligence against Dahl. The legations of Appellants also claim the trial court supported finding of could have excluding erred from evidence the video jury had the come to that con- negligence, scene, tape made at the accident clusion, province but it was also within the failing jury to allow the to take into the jury negligence by to find no Dahl. photographs jury room aerial offered for Here, minds could have reached reasonable purposes. Appellants argue illustrative negligent. Dahl was not conclusion tape jury that the video would aid its Peppin, 372 N.W.2d at 374. See deliberations, presented an accurate depiction of the accident scene. It also

IV. an interview contained with Towne allegedly damaging Jury Instructions which Towne made ad Respondents argue tape missions. that the Appellants argue that the mis filming is not relevant because the time of interrogato special understood the verdict unknown, the film is was shot over an respondents’ negligence. ries as to Each time, most, period if extended not language: question was worded the same all, go of the film would to the issue of negli Was defendant [Laurel Stroman] damages, liability. not The decision to ex gent operation in the of the vehicle [she] tape clude the was within the court’s dis driving at the time the accident"1. cretion, ap and we will not disturb it on added). point (emphasis Appellants out Co., peal. v. Touche Ross Jenson & jury, receiving general that the after (Minn.1983). N.W.2d retiring, instructions and before asked Appellants contend the court erred court to define “at the time of the acci keeping the illustrative out of the exhibits so, dent.” The trial court declined to do ruling. room. We find no error in this and informed the to take the matter Attorney Misconduct up among judgment their recollective Appellants determine what that would be. attorney raise issues mis- argue length that with the of time and record, have conduct. We reviewed surrounding series of events Stroman’s that none and find remarks com- prior conduct actual plained byof rise to the level of bumper, of her fender and Towne’s prejudice that new trial on this such issue misleading instruction was inferred to is warranted. only that it could consider Stro- man’s conduct at the time of the actual DECISION truck, impact with the and not the series of by refusing grant The trial court erred brought events that her into contact with appellants a new trial or JNOV with re- agree. the truck. We With an accident spect issue of to the Stroman’s complex, magnitude, this and of this involv by refusing did err The trial court not *8 reaction, ing multiple in a vehicles chain grant respect JNOV a new trial with in should have been instructed negligence. The trial court did some all of fashion that it could consider refusing grant not err JNOV or a Stroman’s it considered rel conduct respect new trial with to Dahl’s evant. to the to determine The instructions court, respondents negligently “at stand- whether acted instruction of the trial not, alone, standing might re- the time of the accident” did not have constituted alone, error as to all remanding versible error. for constitute reversible Since we are did not err respondents. The trial court new trial on the issue of causation as consisting evidence refusing to admit scene, the accident tape of

video jurors refusing permit to take into the only room that had been used purposes. illustrative part, in part reversed Affirmed remanded.

HUSPENI, part, concurring in dissenting part.

HUSPENI, Judge (concurring part, dissenting part) II, III,

I concur in sections IV and V of However, analysis. I majority’s believe that under the facts of this matter the

question of Stroman’s was for v. determine. Gertken Farm- Minn., Inc., Kensington, ers Elevator of 550, (Minn.Ct.App.1987), 411 N.W.2d (Minn. 28, 1987). pet. rev. denied Oct. court committed Whether the trial reversi- ble error when it failed to answer the regarding jury’s inquiry phrase “at the question. time of the is a close accident” However, I I join majori- conclude must in its of this ty analysis issue standing alone.

I would affirm the trial in all court re- spects. PERBIX, Repre

John O. as Personal sentative Barbara Estate of Perbix, Respondent,

J. HANSEN, Mary Gerald J. John Doe Doe, Occupants of the Premises De Below; Roe

scribed and Richard Defendants, Roe, as Unknown Having Prop a Claim Interest

erty Below, Appellants. Described

No. C0-87-1432. Appeals Court of of Minnesota. Feb.