Bob Makor George, as Trustee for the heirs of Gonkartee Dekpah II, deceased, Appellant, vs. Estate of Dennis Allen Baker, et al., defendants and third party plaintiffs, Respondents, vs. CRST, Incorporated, et al., third party defendants, Respondents.

Bob Makor George, as Trustee for the heirs of Gonkartee Dekpah II, deceased, Appellant, vs. Estate of Dennis Allen Baker, et al., defendants and third party plaintiffs, Respondents, vs. CRST, Incorporated, et al., third party defendants, Respondents. A05-108, Court of Appeals Unpublished, December 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-108

 

Bob Makor George, as Trustee for the heirs of

Gonkartee Dekpah II, deceased,

Appellant,

 

vs.

 

Estate of Dennis Allen Baker, et al.,

defendants and third party plaintiffs,

Respondents,

 

vs.

 

CRST, Incorporated, et al.,

third party defendants

Respondents.

 

Filed ­­­December 6, 2005

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. WD 02-4560

 

Philip K. Jacobson, Kelly & Jacobson, 220 South Sixth Street, Suite 215, Minneapolis, MN 55402 (for appellant)

 

Jeannie M. Provo-Petersen, Johnson & Provo-Petersen, LLP, W975 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondents Estate of Dennis Allen Baker, AJD Transportation, Incorporated, and Gabriel R. Limongelli)

 

Patrick D. Reilly, Erstad & Riemer, P.A., 200 Riverview Office Tower, 8009-34th Avenue South, Minneapolis, MN 55425 (for respondents CRST, Incorporated and Brian K. Losey)

 

Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court's denial of his motion for JNOV or a new trial, arguing that the district court abused its discretion by (1) erroneously instructing the jury regarding the standard of care and decedent's life expectancy; (2) admitting testimony of four witnesses regarding respondent's careful driving habits and the testimony of a state statistician regarding similar accidents; (3) excluding damage evidence consisting of letters and testimony regarding telephone calls between decedent and his family, and evidence of money transfers to decedent's family; and (4) finding that the jury's verdict that respondent-Baker was not causally negligent was supported by the evidence.  Because we conclude that the jury instructions and the admitted testimony did not constitute prejudicial error, the excluded evidence was not an abuse of discretion, and the jury's finding of no causation was supported by the evidence, we affirm.

FACTS

On March 14, 2002, a taxicab driven by Dennis Baker crossed the median and collided with a semi-truck driven by Brian Keith Losey while traveling on Interstate-494.  Both the taxicab driver Dennis Baker and the taxicab passenger, Gonkartee Dekpah II (decedent), were killed instantly.  Losey suffered no injuries.

Appellant Bob Makor George, brother of decedent, as trustee for the heirs of decedent, brought a wrongful death action against (1) the Estate of Dennis Allen Baker, Baker's former employer AJD Transportation, Inc., and the taxicab owner Russell Limongelli (collectively respondent-Baker); and (2) Losey and the semi-truck owner, CRST, Inc. (collectively respondent-Losey).

            The accident occurred during inclement weather on northbound I-494 when Baker, who was traveling southbound, crossed over the median into the northbound lane and was hit head-on by Losey.  The only two eyewitnesses to the accident were Losey and Julia Varner.  Losey testified that he noticed the taxicab "fishtailing" before crossing the median, but was uncertain as to the speed of the taxicab prior to the accident or what caused it to cross the median.  Varner, who was following Losey's semi-truck at the time of the accident, testified that she did not see the taxicab until it had crossed the median and was entering the northbound lane.  Losey and Varner disagreed as to whether the taxicab had stopped prior to impact with the semi-truck.

The role of inclement weather in causing the accident was hotly disputed.  Appellant introduced evidence of "hazardous conditions" contending that the "extreme caution" standard of care applied to respondent-Losey.  Respondents presented the defense that the weather, rather than negligent driving, directly caused the accident.  The parties stipulated to climatological and meteorological exhibits for the day of the accident, which included documents from the National Weather Center showing heavy snowfall, and that a winter storm warning was issued for the Metro area shortly after the accident.  Appellant called Varner to testify regarding weather and road conditions at the time of the accident.  Varner testified that weather conditions were deteriorating, the roads were slippery, and many vehicles were in the ditch.  Appellant also called Minnesota highway patrol trooper Paul Davis to testify regarding his investigation of the accident.  On direct examination, the trooper testified that, when he was notified of the accident, it had started snowing and the roads were getting slippery.  When he arrived at the scene of the accident, the weather was deteriorating rapidly.  On cross examination, the trooper testified, without objection by appellant, that he received dispatch calls of numerous weather-related accidents in the area while driving to the accident scene.  Over the objections of appellant, respondent-Baker introduced the testimony of a state statistician who testified that 431 other traffic accidents occurred on the same day in the metro area and that the number of accidents typically increases on cold, icy, and snowy days.  On cross-examination, the statistician admitted that he was unable to state whether any of the accidents were weather-related or involved similar driving conditions. 

All three parties called accident reconstruction experts to testify regarding the speed of the vehicles at the time of the accident.  Appellant's expert estimated that Baker was traveling at an excessive speed of 58 miles per hour at the time of the accident, and that Losey had adequate time to stop to avoid the accident.  Respondent-Losey's expert testified that Baker's speed could not be determined from the physical evidence, and estimated that Losey's speed was 30-36 miles per hour.  Respondent-Baker's expert testified that Baker's speed was immeasurable, and estimated that Losey's speed was 28 miles per hour.  Respondent-Baker's expert also testified that it was impossible from the physical evidence to determine whether anything other than weather caused or played a role in the accident, including whether another vehicle collided with Baker or caused him to swerve suddenly.  The state trooper also testified that the cause of Baker's crossing of the median was indeterminable from the evidence at the accident scene. 

Respondent-Baker called four witnesses to testify that Baker was a careful person and driver.  Appellant objected, but the district court overruled the objection and admitted the testimony. 

In a motion in limine, appellant sought to present testimony introducing handwritten letters purporting to be from decedent to his wife in Liberia.  Respondents objected, arguing that the content of the letters was hearsay and that appellant lacked personal knowledge.  The district court excluded the letters.  Appellant also sought to introduce decedent's side of telephone conversations between decedent and his family that he overheard.  The district court sustained respondents' objections to the testimony on the basis of hearsay.  Appellant also sought to introduce written receipts of money transfers between decedent and his family in Liberia, to which respondents objected.  The district court received into evidence the receipts of money transfers to known, immediate family members, but sustained the objection to receipts for non-immediate family members. 

During trial, the parties proposed that certain jury instructions be given by the district court.  Appellant requested that the district court include CIVJIG 48.15 regarding the common carrier standard of care for a taxicab:

A common carrier has a duty to use the highest degree of care to make sure its passengers are safe.  The "highest degree of care" means the utmost caution used by very careful persons.  The amount of care given must also be consistent with the proper operation of the carrier's business.  A common carrier is negligent when it fails to use this standard of care. 

 

4 Minnesota Practice, CIVJIG 292 (1999).  Appellant also requested that the district court include the heightened "extreme caution" standard of care applicable to the semi-truck under certain conditions:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke adversely affect visibility or traction.  Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

 

49 C.F.R. § 392.14 (2002).  The district court determined that both instructions would be given to the jury along with the general negligence and "reasonable care" instructions of CIVJIG 25.10:

Reasonable care is the care a reasonable person would use in the same or similar circumstances. . . Negligence is the failure to use reasonable care.  Ask yourself what a reasonable person would have done in these circumstances.  Negligence occurs when a person: (1) Does something that a reasonable person would not do; or, (2) Fails to do something that a reasonable person would do.

 

4 Minnesota Practice, CIVJIG 128 (1999).  Respondent proposed that the court give the life expectancy for African American males and the life expectancy for Liberian males in its jury instructions.  Appellant objected on the basis that the Liberian life expectancy was irrelevant and requested that the Liberian life expectancy not be given.  Respondent argued that the decedent spent the majority of his life in Liberia and, therefore, the Liberian life expectancy table was relevant.  The district court determined that both life expectancies would be given. 

During closing argument, appellant's counsel stated that "the reasonable care standard does not apply here to either the taxi or the semi; both have special standards."  Both respondents objected, and brought motions for a mistrial, or in the alternative, that a curative instruction be given to correct a perceived misstatement of the law.  The district court agreed, and provided the following curative instruction:  "[Appellant's counsel], during his final argument yesterday, stated that the reasonable person standard did not apply to either Defendant.  This is erroneous. The reasonable person standard applies to both Defendant[s]."  The district court then proceeded to give the general jury instructions, including the instructions regarding extreme caution, common carriers, reasonable care, and negligence.

The jury returned a special verdict finding both respondents negligent, and finding that neither respondent was a direct cause of the accident.  The jury also found that appellant had sustained $68,000 in damages.  Appellant filed a motion for JNOV or a new trial, citing erroneous evidentiary rulings and jury instructions, and that the verdict was unsupported by the evidence.  The district court denied the motion.  This appeal follows.

D E C I S I O N

I.

            Appellant raises four issues on appeal.  First, appellant contends that the district court's jury instructions were erroneous and that the errors were prejudicial.  The disputed jury instructions involve the standard of care and life expectancy tables. 

This court reviews a district court's decision on jury instructions under an abuse of discretion standard.  Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002).  District courts generally have "considerable latitude" in choosing jury instructions.  Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154, 159 (Minn. 2002).  A district court also has broad discretion to fashion appropriate curative instructions.  Poston v. Colestock, 540 N.W.2d 92, 94 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996).  But a court errs if it gives a jury instruction that materially misstates the law.  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

Standard of Care Instructions

First, appellant contends that the curative instruction given by the district court that the reasonable care standard applied to both respondents conflicted with the jury instruction for a common carrier, and that the instructions together confused the jury as to the controlling standard of care.  Respondent-Baker argues that the curative instruction was not clearly erroneous.

But the only claims before the jury were appellant's negligence claim against respondent-Baker, and appellant's negligence claim against respondent-Losey.  The standard of care owed by respondent-Baker to appellant as a common carrier was the highest degree of care and not the reasonable care standard.  In that respect, the curative instruction and the jury instruction for a common carrier, i.e., highest degree of care, are in conflict.  It is possible that the jury could have concluded that the reasonable care standard applied to respondent-Baker rather than the highest degree of care.  Therefore, we conclude that the district court abused its discretion in giving the curative instruction as to respondent-Baker.

Next, appellant argues that the curative instruction conflicted with the jury instruction that a commercial vehicle exercise extreme caution.  Respondent-Losey argues that the district court properly instructed the jury as to the standard of care applicable to respondent-Losey.  Respondent's argument has merit.  The district court gave both the reasonable person standard, and when hazardous conditions exist, the extreme caution standard.  Thus, if the jury determined that hazardous conditions existed at the time of the accident, the extreme caution standard would apply.  Because the jury could have found that either standard applied to respondent-Losey, we conclude that the curative instruction was not error as to respondent-Losey. 

Respondents further argue that, even if the curative instruction was a misstatement of the law, the error was harmless because the jury concluded that both respondents were negligent.  A conclusion that the district court erroneously gives a jury instruction that misstates the law does not end the analysis.  Rowe v. Munye, 702 N.W.2d 729, 743 (Minn. 2005).  A complainant will not receive a new trial for errors in jury instructions unless the error was prejudicial.  Id. A jury instruction is prejudicial if a more accurate instruction would have changed the outcome in the case.  State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002).  In determining whether erroneous instructions resulted in prejudice, this court must construe the instructions as a whole from the standpoint of the total impact on the jury.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 48 (Minn. 1997).  The complainant will be given the benefit of the doubt and granted a new trial if the effect of the erroneous instruction cannot be determined.  Rowe, 702 N.W.2d at 743.   

            Reviewing the jury instructions as a whole, we conclude that the erroneous curative instruction was not prejudicial.  Because the jury determined that both respondents were negligent, it is reasonable to conclude that the total impact of the curative instruction was not significant.  On this record, we cannot conclude that the curative instruction changed the outcome of the case.  Consequently, we conclude that the erroneous curative instruction was not prejudicial.    

            Life Expectancy Instruction

Second, appellant contends that the district court erred when it instructed the jury as to the life expectancy of a Liberian male.  Appellant argues that this instruction was misleading because the decedent immigrated to the U.S. in 1996 and had already exceeded the Liberian male life expectancy when he died at the age of 52.

Mortality tables are based on the average life of a large group of persons and are received into evidence to show the probable life expectancy of the deceased for the purpose of awarding damages.  Hallada v. Great N. Ry., 244 Minn. 81, 95, 69 N.W.2d 673, 685 (1955), overruled on other grounds by Busch v. Busch Const., Inc., 262 N.W.2d 377 (Minn. 1977).  Although mortality tables have evidentiary value, it is settled law that the tables do not conclusively establish the life expectancy of a particular person.  Id.; Thoirs v. Pounsford, 210 Minn. 462, 466-67, 299 N.W. 16, 18 (1941).  "The trier of fact is not bound by them and may find that the life expectancy of a particular decedent is greater or less than that shown in the tables."  Thoirs, 210 Minn. at 466-67, 299 N.W. at 18.  The use of mortality tables is only one of several evidentiary factors to be weighed in ascertaining life expectancy and the jury should also examine other factors such as decedent's health, physical condition, habits, and occupation.  Hallada, 244 Minn. at 95-96, 69 N.W.2d at Thoirs, 210 Minn. at 467, 299 N.W. at 18.

Here, the district court gave the following jury instructions regarding the decedent's life expectancy:

            According to life expectancy tables the future life expectancy of a 52-year-old African American male is 73.4 years.  And according to Liberian life expectancy information, the life expectancy of a Liberian male is 47.03 years.  Use this figure to help you determine the probable life expectancy of [decedent].  It is not conclusive proof of his life expectancy and you are not bound by it, it is only an estimate based on average experience.  You may find that [decedent] would have lived a longer or shorter period . . . than that given in these tables.  Consider this figure along with the evidence of the health, physical condition, habits, occupation, and surroundings of [decedent] and other circumstances that might affect his life expectancy.

           

This jury instruction follows the language in Thoirs and Hallada regarding mortality tables and accurately states the law regarding the weight to be given to such tables. The mortality tables utilized by the district court were from reliable government sources.  Therefore, the jury instruction regarding life expectancy was not erroneous.

II.

Second, appellant contends that the district court abused its discretion in its admission of certain testimony regarding the liability issues of the case.  The disputed evidence involves character evidence and statistical evidence. 

Character Evidence

Appellant argues that the district court erred in admitting the testimony of four witnesses that Baker was a careful person and driver.  Appellant argues that this testimony was inadmissible character evidence, constituting prejudicial error.  Absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court's discretion.  Kroning, 567 N.W.2d at 45-46.  "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."  Id. at 46 (quotation omitted).

The district court concluded that the testimony regarding Baker's careful driving was habit or routine practice admissible under Minn. R. Evid. 406.  The district court noted that "evidence of Baker's habitual driving conduct was allowed into evidence for the express purpose of rebutting insinuations made by Plaintiff throughout the trial that Baker was driving too fast for the conditions or passing vehicles from the right-hand lane in the moments preceding the accident."

Rule 406 states that "[e]vidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit or routine practice."  Minn. R. Evid. 406.  Habit evidence describes "one's regular response to a repeated specific situation."  Minn. R. Evid. 406 1989 comm. cmt. (quoting McCormick on Evidence § 195 (2d ed. 1972)).  But testimony of generalized driving characteristics does not constitute habit evidence.  Evidence that a person generally exercises care while driving lacks the specificity required of habit evidence.  

Here, we conclude that the testimony that Baker was a "careful person" and "careful driver" is character evidence, i.e., a "generalized description of one's disposition, or of one's disposition in respect to a generalized trait."  Minn. R. Evid. 406 1989 comm. cmt. (quoting McCormick on Evidence § 195 (2d ed. 1972)).  Minn. R. Evid. 404(a) provides that "[e]vidence of a person's character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. . . ."  Consequently, the district court abused its discretion in allowing the testimony to be received as habit evidence.  See 11 Peter J. Thompson, Minnesota Practice, § 406.02 (2001) (noting that "the limitations on the use of . . . character testimony are not applicable to habit testimony."). 

Next, we review whether the admission of the character evidence was prejudicial.  To be prejudicial, it must appear that such evidence might reasonably have changed the result before the error constitutes grounds for a new trial.  Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 274 (1989).  Here, despite the testimony, the jury found Baker negligent in the operation of the vehicle at the time of the accident.  Because the character evidence did not affect the jury's ultimate finding of negligence, we conclude that the district court did not abuse its discretion. 

Statistician Testimony of Similar Accidents

Appellant also contends that the district court erred in permitting respondent-Baker to call a state statistician to testify regarding the number of other traffic accidents occurring on the same day.

"The law is well settled in this state that evidence of similar accidents from the same inanimate cause is admissible to prove that the common cause was dangerous and likely to cause accidents."  Mockler v. City of Stillwater, 246 Minn. 39, 42, 74 N.W.2d 118, 121 (1955).  As a foundation for such evidence, it must appear that the circumstances surrounding the other accidents were substantially the same as those involved in the accident in litigation.  Haukom v. Chicago Great W. Ry. Co., 269 Minn. 542, 555, 132 N.W.2d 271, 279 (1964).

            The statistician testified that 431 other accidents occurred in the seven-county metro area on the same day that this accident occurred.  The statistician testified that "on a cold, icy, snowy day traffic crashes jump more than usual than on a normal weather day."  But he admitted on cross-examination that he was unable to state whether any of the 431 crashes were weather-related or involved similar driving conditions. 

Because respondent-Baker was not able to establish that any of the 431 other accidents were substantially similar to the accident in this litigation, the district court abused its discretion by admitting the evidence.  But appellant must also establish that the evidence was prejudicial in order to require a new trial.  To be prejudicial, it must appear that such evidence might reasonably have changed the result before it constitutes grounds for a new trial.  Rusciano, 445 N.W.2d at 274.  An error in the admission of evidence is grounds for a new trial "if it is obvious, from a consideration of the whole case, that substantial prejudice resulted to the adverse party."  Fewell v. Tappan, 223 Minn. 483, 498, 27 N.W.2d 648, 656 (Minn. 1947). 

Because negligence and causation are different issues, we review them separately.  On the issue of negligence, the jury found both respondents negligent and, therefore, the statistical evidence of other accidents had no impact on the jury's special verdict on that issue.

On the issue of causation, our review focuses on whether the other evidence in the record is sufficient to justify the verdict.  See Boehne v. Guardian Life Ins. Co. of America, 224 Minn. 57, 75, 28 N.W.2d 54, 64 (Minn. 1947).  Here, the parties stipulated to climatological and meteorological exhibits showing snowy and icy weather conditions.  Both Varner and Trooper Davis testified that weather conditions were deteriorating rapidly and the roads were slippery.  Trooper Davis testified, without objection, that he received calls of numerous other accidents while en route to the accident in question.  Appellant argued to the jury that the road conditions were hazardous to support his theory that respondent-Losey was obligated to use extreme caution. 

Essentially, appellant seeks to argue that the weather resulted in hazardous road conditions to support his negligence theory; but that the weather and the hazardous road conditions were not a direct cause of the accident.  Here, the statistician's testimony played a very small role in comparison to the other substantial evidence regarding the weather, and the hazardous road conditions.  Based on our review of the whole record, we cannot say that it is obvious that appellant was substantially prejudiced by the statistician's testimony.  Consequently, we believe that the other admitted evidence was sufficient to justify the jury verdict. 

III.

Third, appellant contends that the district court erred in excluding certain evidence regarding damages that deprived him of a fair trial.  Appellant challenges three rulings of the district court considered in a motion in limine.  This court reviews the district court's evidentiary rulings for a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

Handwritten Letters

Appellant sought to introduce letters that decedent's wife informed him she had received from decedent.  The district court excluded the letters based on hearsay and lack of authenticity.  Appellant argues that familiarity with decedent's handwriting and personal knowledge gained from collecting the letters from decedent's wife satisfies the authenticity requirements.  Appellant also argues that hearsay does not apply because the letters were offered to show evidence of the decedent's continued relationship with his wife rather than the truth of statements contained in the letters.  

Authentication of evidence is governed by Rule 901 of the Minnesota Rules of Evidence.  In re Welfare of S.A.M., 570 N.W.2d 162, 165 (Minn. App. 1997).  The evidentiary requirement for authentication as a condition precedent to admissibility is met only if the evidence is "sufficient to support a finding that the matter in question is what its proponent claims."  Minn. R. Evid. 901(a).

            Here, neither the sender of the letters (decedent) nor the recipient (decedent's wife) were available to testify to the authenticity of the letters.  The envelope of one of the letters lacked any postal markings or stamps that would indicate it was actually sent from decedent to his wife.  Respondents also noted that the letters were in English, had varying handwriting throughout, and were sent to third parties rather than directly to the family. 

Additionally, the district court excluded the evidence on the basis of hearsay.  Hearsay is a statement, either oral or written, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.  Minn. R. Evid. 801(a), (c).  Appellant sought to introduce the letters relying on out-of-court statements by decedent's wife that she received the letters from decedent.  The letters were offered to prove that decedent maintained a close relationship with his wife.  Because the letters were written statements of decedent to his wife, those statements constitute hearsay.  See In re Simon, 662 N.W.2d 155, 160 (Minn. App. 2003) (therapist's letters inadmissible as hearsay unless exception applies).  Appellant argues that the letters were not offered to prove their content but rather to show the jury tangible evidence of the continuing relationship between decedent and his wife.  We disagree.  It is the content of the letters, not the mere fact that letters were sent, that prove decedent's relationship with his wife.  If the jurors do not consider the content of the letters, the letters reveal nothing about the relationship and offer no support to appellant's claim for damages.  And the content of the letters is hearsay.  Thus, the district court did not abuse its discretion by excluding the letters. 

Telephone Conversations

Appellant also sought to introduce testimony regarding portions of phone conversations purportedly between decedent and his family that appellant overheard.  The district court excluded this testimony on hearsay grounds.  Appellant argues that his testimony regarding the substance of overheard phone conversations was not hearsay and, instead, was offered to show decedent's involvement with his family.  

Testimony regarding statements made in a conversation overheard by a witness is generally considered hearsay absent a hearsay exception.  See State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985).  Appellant does not argue that a hearsay exception applies.  Appellant's proffered testimony falls squarely within the hearsay definition.  See Minn. R. Evid. 801(c).  Because appellant sought to introduce the substance of the phone conversation, we conclude that the district court did not abuse its discretion in excluding the testimony.

            Money Transfers

Appellant also sought to introduce written receipts of monetary transfers made by decedent to his family in Liberia.  The district court admitted evidence of money transfers made to twenty family members listed on an "Affidavit of Relationship," signed by decedent in his attempts to bring his family to the United States.  The district court, however, excluded the evidence of other money transfers to persons not listed due to lack of authentication.  Appellant argues that the exclusion was an abuse of discretion because the recipients of these transfers were extended family members. 

But even if the recipients of the excluded transfers were related to decedent, there was no evidence that the money was transferred to decedent's immediate family, or that decedent's family had actually received the money.  On this record, we conclude that the district court did not abuse its discretion. 

IV.

Appellant contends that the jury's special verdict that respondent-Baker's negligence was not the direct cause of the accident was perverse and unsupported by the evidence.  Respondent-Baker contends that the finding of causation is a separate inquiry from a finding of negligence and that the evidence presented was sufficient for the jury to find negligence without direct causation. 

            "It is well settled that we will set aside an answer to a special verdict question only when it is perverse and palpably contrary to the evidence."  Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984).  "A jury verdict will be overturned only if no reasonable mind could find as did the jury."  Id. If the answers to special verdict questions can be reconciled on any theory, the verdict will not be disturbed.  Id. (emphasis in original).  The issue of causation is for the jury to decide, and its decision will stand unless manifestly contrary to the evidence viewed as a whole and in the light most favorable to the verdict.  Id.

            Initially, appellant argues that respondent-Baker failed to meet his burden of proof establishing excuse or justification.  Essentially, appellant argues that, because Baker crossed over the median, he was negligent.  Clearly, proof of a violation of the traffic code establishes a prima facie case of negligence.  Lynghaug v. Payte, 247 Minn. 186, 76 N.W.2d 660, 666-67 (1956).  A defendant bears the burden of establishing excuse or justification for a violation and, "[i]n the absence of excuse or justification, liability follows as a matter of law if, upon proof of violation, the negligence is the proximate cause of the injury."  Id. at 195-96, 76 N.W.2d at 667.  But the issue of excuse or justification was resolved by the jury in appellant's favor when it concluded that respondent-Baker was negligent.

            Appellant further argues that a mistake in the curative jury instruction on the standard of care skewed the jury's deliberations and consideration of the causation question.  Appellant contends that if the jury applied the highest degree of care rather than the reasonable person standard expressed in the curative instruction, then negligence and causation would be more easily established.  But negligence and proximate cause are separate issues for the jury to decide in assigning liability.  Vanderweyst v. Langford, 303 Minn. 575, 228 N.W.2d 271, 272 (1975).  And the district court properly instructed the jury on causation, i.e., that a direct cause "is a cause that has a substantial part in bringing about the accident."  Appellant has not challenged the instruction to the jury on causation.  On this record, we cannot conclude that the curative instruction changed the outcome of the case. 

The crux of appellant's argument is that the jury cannot find respondent-Baker negligent and then find that the negligence was not the direct cause of the accident.  But, "[i]t is a well-settled principle that causation, like negligence itself, is a fact issue for the jury except when the facts are undisputed and are reasonably susceptible of but one inference."  Jorgensen v.  Hawton, 281 Minn. 370, 375, 161 N.W.2d 676, 680 (1968) (citation and alterations omitted).  A finding of negligence without a finding of direct cause is not perverse where there is any evidence tending to support the jury's verdict.  See, e.g., Lott v. Davidson, 261 Minn. 130, 136-37, 109 N.W.2d 336, 341 (1961); Simon v. Carroll, 241 Minn. 211, 217, 62 N.W.2d 822, 827 (1954).             

Here, the jury's verdict regarding causation is not contrary to the evidence "viewed as a whole and in the light most favorable to the verdict."  Hauenstein, 347 N.W.2d at 275.  The jury could have determined that appellant did not meet his burden of establishing causation because the evidence regarding Baker's speed was inconclusive.  Also, the jury could reasonably have found that, even if Baker failed to act with the utmost degree of care under the common carrier standard, the direct cause of the accident was unavoidable, and due to the sudden onset of inclement weather.  See, e.g., Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (holding that jury could reasonably infer that evidence of deteriorating weather and road conditions excused negligence).  The inference that weather was the direct or proximate cause of the accident was sufficiently supported by the evidence.  

            Affirmed.