Gamerdinger v. Schaefer

603 N.W.2d 950 (1999)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Ps filed suit against Ds for damages sustained as a result of a collision at Deere's plant between a motorized cart driven by P and a forklift truck driven by D. At trial P sought to introduce evidence of D's habit of being negligent in operating the forklift. Ps presented the testimony of Tim Davison, who retired from Deere in May of 1995, after more than twenty-nine years of service. For the last seven years of his employment, he worked with D for five and one-half to six of those years. Davison observed P approaching the scene of the accident on her food cart. Davison observed P back his forklift truck out of the semi-trailer he was unloading and collide with the left side of her food cart. D sounded no horn prior to exiting the trailer and did not look either way or stop prior to backing the vehicle out of the trailer. Ps made an offer of proof related to the habit and custom of D in the operation of his forklift truck. As per Davison, D's driving habits were erratic and he did not always know what was going on around him. Davison testified that it was the forklift driver's responsibility to look in the mirror, behind, to the left, and to the right in backing the forklift out of a trailer. Davison wanted to testify that D had a long-standing problem in not following this procedure. Davison had even felt compelled to talk to Ds supervisor one or two times per month, for the five and one-half to six years that the men worked together. Once reported D improved but the improvements did not last. Jerry Linsey, retired from Deere (D) after more than thirty years of service wanted to testify that D had a custom or habit of not looking to see if there were any pedestrians in the way or coming through the area when backing out of a trailer with a load of tires. This occurred daily. Linsey had also talked to D’s supervisor on fourteen or fifteen occasions. He also notified another supervisor, Bill Holmes, but the complaints never seemed to make a difference in D's driving habits. Prior to the beginning of evidence, the trial court granted Ds' motion in limine concerning the safety of P's previous operation of the forklift. The court ruled that it would not allow this evidence unless Ds made it an issue by averring that D was a safe driver. The matter surfaced again at trial via direct examination of D by Ds, cross-examination, redirect, and recross-examination. The plaintiffs' request for rebuttal testimony was denied. A verdict was returned in which fifty percent of the fault for the accident was attributed to P, twenty percent to Schaefer (D), and thirty percent to Deere (D). The jury awarded P $10,776.04 for past medical expenses and $20,000 for those expected to be incurred in the future. These amounts were reduced by her percentage of fault. No other damages were granted. Judgment was entered in favor of P for $ 15,388.02 plus interest. P moved for a new trial, arguing that the jury verdict was inconsistent in that it awarded medical expenses but failed to confer corresponding amounts for pain and suffering and loss of function. The district court agreed and suggested additur of $40,000. Both parties objected and the court sustained the motion for a new trial.