Bonnivier v. Valley Asphalt

----ooOoo----

Brace G. Bonnivier,
Plaintiff and Appellant,

v.

Valley Asphalt, Inc.;
Siaperas Construction, Inc.;
and Roger K. Thayn,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980310-CA

F I L E D
April 27, 2000
  2000 UT App 117 -----

Fourth District, Provo Department
The Honorable Donald J. Eyre, Jr.

Attorneys:
Michael J. Petro and Scott P. Card, Springville, for Appellant
Scott H. Martin and John R. Lund, Salt Lake City, for Appellees

-----

Before Judges Jackson, Bench, and Davis.

DAVIS, Judge:

Plaintiff appeals the trial court's denial of his Motion for New Trial. We review a trial court's denial of a motion for a new trial for an abuse of discretion. See Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App 355,¶7, 993 P.2d 222.

Plaintiff first assails the jury's verdict by arguing that the evidence was insufficient to find that Roger K. Thayn's (defendant) negligence was not the proximate cause of plaintiff's injuries. "When a party challenges the sufficiency of evidence underlying a trial court's denial of a motion for . . . a new trial, 'we reverse only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict.'" Id. (citation omitted). Additionally, "'the appealing party "must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict."'" Id. (citations omitted).

Although plaintiff marshals the evidence, he fails to demonstrate how the evidence is insufficient to support the jury's verdict that defendant's negligence was not the proximate cause of plaintiff's injuries.

Moreover, we conclude that there was sufficient evidence supporting the jury's verdict. Two eyewitnesses other than defendant testified that they were unable to see plaintiff until his motorcycle came out from behind the van. In addition, the investigating officer testified that a "prime contributing circumstance" of the accident was that plaintiff had positioned himself too close behind the van to be visible to other drivers. Defendant's expert witness testified that the accident occurred because neither plaintiff nor defendant maintained a proper lookout.

Plaintiff testified that because the van was traveling at a slower rate of speed, he was continuously "narrowing the gap" between him and the van and was "gaining again on the [van]" because he was going to pass it as the van made its right-hand turn. Plaintiff stated that he had been moving from the center of his lane to the left side of the van to see if there was oncoming traffic so that he could pass safely through the intersection.(1) Although plaintiff did not see defendant's truck at the stop sign, he "sensed" that there was something there.

The jury could have believed from the above testimony that plaintiff traveled too close to the van for the cross traffic to see him, and thus defendant acted reasonably by beginning to execute his left-hand turn. The jury could also have inferred that plaintiff was too close to the van to see the traffic that was stopped at the stop sign and therefore failed to maintain a proper lookout. Thus, the jury believed that plaintiff's actions, not defendant's, were the proximate cause of plaintiff's injuries. Because the evidence "'"support[ing] the verdict was [not] completely lacking or . . . so slight and unconvincing as to make the verdict plainly unreasonable and unjust,"'" we hold that the trial court did not abuse its wide discretion in denying plaintiff's motion for a new trial. Child v. Gonda, 972 P.2d 425, 433 (Utah 1998) (citations omitted).

Plaintiff also assails that portion of the jury's verdict attributing ninety percent of the liability to plaintiff and only ten percent to defendant. The trial court's denial of plaintiff's motion for a new trial based on the jury's assessment of contributory negligence "will be sustained on appeal if there was 'an evidentiary basis for the jury's decision . . . .' The trial court's denial of a motion for a new trial will be reversed only if the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Sharp v. Williams, 915 P.2d 495, 497 (Utah 1996) (citations omitted; omissions in original).

Even if the jury's allocation of liability heavily favored defendant, the jury clearly believed that plaintiff was more at fault than defendant. Viewing the evidence in the light most favorable to defendant, which we must do, see id. at 499, we cannot say that the evidence "was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Id. at 497. Accordingly, we affirm the jury's verdict and the trial court's denial of defendant's motion to dismiss.

Lastly, plaintiff argues that he is entitled to a new trial because the jury, in violation of the jury instructions, answered questions three, four, and five. Plaintiff maintains that under Rule 49 of the Utah Rules of Civil Procedure, the jury's error requires reversal of the verdict and a new trial. However, because plaintiff did not rely on Rule 49 before the trial court, he has waived this argument and we do not address it on appeal. See State v. Amoroso, 1999 UT App 60,¶7, 975 P.2d 505, cert. denied, 994 P.2d 1271 (Utah 1999).

Moreover, the jury's error was harmless. "Errors require reversal only if confidence in the jury's verdict is undermined." Tingey v. Christensen, 1999 UT 68,¶16, 987 P.2d 588. "'We may reverse a trial court judgment only if there is a reasonable likelihood that, absent the error, there would have been a result more favorable to the complaining party.'" Id. (citation omitted). Despite the jury's error, our confidence in the verdict is not undermined. Accordingly, we decline to reverse and remand for a new trial because the jury erred in answering questions three, four, and five on the special verdict form.

The jury's verdict and the trial court's denial of plaintiff's motion for a new trial are affirmed in all respects.
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
Russell W. Bench, Judge

1. We note that "[t]he operator of a motorcycle . . . may not overtake and pass in the same lane occupied by the vehicle being overtaken." Utah Code Ann. § 41-6-107.2(2) (1998). The jury was so instructed.