### No. 81-118 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

. 

### MARJORIE HARRY, Plaintiff and Respondent and Cross-Appellant,

BILL ELDERKIN and SANDY ELDERKIN, Defendants and Appellants and Cross-Respondents.

Appeal from: District Court of the Eleventh Judicial District, In and for the County of Flathead Honorable James M. Salansky,Judgepresiding. Counsel of Record: For Appellants: Warden, Christiansen, Johnson and Berg, Kalispell,

Montana Stephen C. Berg argued, Kalispell,Montana For Respondent: Hash,Jellison,O'Brien and Bartlett, Kalispell,

Montana James C. Bartlett argued, Kalispell,Montana

Submitted: October 20, 

### 1981

Filed: 

# DEC

## 1

.. 

## 198f Decided: 

## DEci lD8lMr. Chief ~ustice Frank I. Haswell delivered the Opinion of the Court.

This is an appeal from an order of the District Court for the Eleventh ~udicial District, Flathead County, granting a new trial 

### to the plaintiff in a personal injury action. The plain

### tiff cross-appeals from the contributory negligence instructions. The plaintiff, Marjorie Harry, is the mother of defendant Sandy Elderkin, who 

### was the 

### wife of defendant BillElderkin. During June, 1976, Mrs. Harry 

### was visiting the Elderkins attheir home inKalispell, Montana. Atthe 

### time of her visit, Bill Elderkin 

### was in the process of constructing 

### a cabinet shop inthe backyard of the Elderkin home. A trench had been dug approximately four feetdeep, and cement had been poured into plywood forms constructed in the trench. A garden 

### was located next to the cabinet shop foundation, and the remainder of the backyard



### was covered with black plastic and gravel. On June 12, 1976, Sandy Elderkin invited hermother into the backyard 

### to view the garden. 

### Mrs. Harry had not been in the backyard sinceher arrival, but she 

### was aware of the construction project. BillElderkin

### was inthe process of removing braces and forms from the foundation. As Sandy Elderkin and 

### Mrs. Harry walked along the pathway between the garden and the construction 

### site, Sandy bent down 

### to remove a board from the garden. Mrs. Harry took 

### a stepbackwards with her right foot towards the trench, the ground gave way, and she fell into the trench and caught her leftankle on 

### a brace. As a result of the accident, Mrs. Harry suffered a severelybroken leftankle and received extensive medical treatment. InOctober, 1977, Mrs. Harry was still experiencing difficulties due 

### to severe degenerative arthritisof the ankle caused by the fracture. Dr. Laidlaw advised Mrs. Harry that she would eventually require an ankle fusion to alleviate the pain caused by the rubbing of bone upon bone inthe ankle joint. InMay, 1978

## , Dr. Laidlaw again advised Mrs. Harry that she 

### was in need of an ankle fusion. Mrs. Harry was 

### also seenby Dr. Maruyama, an orthopedic surgeon inColorado, who advised her in November, 1978, and inNovember, 1980, that she should have an ankle fusionbut that she should first

### lose fiftypounds. Atthe 

### time of 

### trial, 

### Mrs. Harry 

### was scheduled 

### to have the ankle fusion but had not yet done 

### so. Mrs. Harry brought an action against the Elderkins for damages forpersonal injury. The District Court denied the summary judgment motions of both parties and a jury trial commenced

on December 151 1980. The jury rendered a special verdict in which it found the plaintiff to have been 85%negligent and the defendants to have been 15%negligent. The fullamount of damages sustained by the plaintiff was found 

### to be $15,000. The District Court ordered thatjudgment be entered on the verdict on behalf of defendants and against the plaintiff. The plaintiff moved for new 

### trial on the grounds of 

### irregularity in the jury proceedings, misconduct of the jury and insufficiencyof the evidence 

### to support the verdict. The motion

was supported by an affidavit of the jury foreman, which stated: 

### " 

# .

# . . (2)That at the time the Special Verdict Form was completed, Affiant and his fellow Jurors believed and they intended that Mrs. Harry 

### was awarded a Judgment in the sum of $15,000.00; 

### "(3)That Affiant and hisfellowJurors assigned a percentage of 85%toMarjorie Harry as justification for the award of $15,000.00 to her; and that in determining the 85%,Affiant and his fellowJurors believed that a significant factor, but not the only factor, was the failure of Marjorie Harry to have her ankle fused when firstsuggested by her physicians, and thatmuch of her problems could have been alleviated had the fusion taken place." By an order dated January 2, 1981, the District Court granted plaintiff's motion for a new trial and found that: 

# ".

.

# . the jurors, 

### or some of them, did not understand the doctrine of comparative negligence, did not apply the 

### law correctlyrelative to contributory negligence, were inconsistent in their answers on the Special Verdict, and reached a result that they did not intend when the Court applied the proportion of contributory negligence they ascribed to the plaintiff." The Elderkins contend that the District Court manifestly abused its discretion in granting 

### Mrs. Harry a new trial. They argue that there 

### was no irregularity in the proceedings, that the jurymay not impeach its own verdict based upon a misapprehension of the 

### law, and that there 

### was sufficient evidence to support the giving of the contributory negligence instruction. Mrs. Harry contends she is entitled 

### to a new trial asa matter of 

### lawdue 

### to

an 

### error in instructing the jury. She further

### asserts that this is a proper case for determining whether the rules of statusof persons injured on real property should be abolished. We decline to address the latter issue 

### as 

### we find it is not properly before us. The trial of this

### case occurred prior toour decision in Corrigan v. Janney (1981), Mont

# . I626 P.2d 838, 38 St.Rep. 545, inwhich 

### we held that a landlord is under a duty 

### to exercise ordinary care in the management of the premises to avoid exposing persons thereon to unreasonable risk of harm. 

### Mrs. Harry 

### asserts that thisrule of law issued while her 

### case was pending on appeal should be expanded and applied 

### to her case by virtue of the plain errorrule. This is not an appropriate case for application of the plain errorrule enunciated inHalldorson v. Halldorson (1977)

## , 175Mont. 170, 573 P.2d 169. It is onlywhen the trial court has committed an error which results ina denial of substantial justice that

### we can review an 

### error not objected to at trial. Plaintiff's counsel indicated satisfaction with the instructions on the standard of liability, and he may not now argue the academic issue thatthe 

### lawshould be changed. Mrs. Harry's motion for a new trial 

### was premised upon section 25-11-102(1), (2)

## ,and (6)

## , MCA. Although the District Court order granting a new 

### trial does not specify the subsec-tion upon which it 

### is based, it is clear that the court relied upon the jury foreman's affidavit and determined that either an irregularity in the jury proceedings 

### or misconduct of the jury had occurred. Juror affidavits 

### are not permissible in support of a motion for new trial based upon an irregularity in the jury proceedings, section 25-11-102(1), MCA. Rasmussen v. Sibert (1969)r 153Mont. 286, 456 P.2d 835. Therefore, if a motion for

new trial 

### was properlygranted under subsection (1) an irregularity in the jury proceedings must have existed independent of any considerationof the jury foreman1 s affidavit. The 

### ~istr ict Court order makes reference to an inconsistency in the answers on the special verdict. On its face, however, the special verdict does not contain any inconsistent answers. Both parties 

### were found to have been negligent, a 

### total amount of damages 

### was assessed and percentages of negligence 

### were ascribed 

### to each party. Absent consideration of the juror affidavit, 

### we find no irregularity in the jury proceedings requiring 

### a new 

### trial under section 25-11-102(1), MCA. plaintiff further argues thateven though juror affidavits cannot be used under section 25-11-102(1), the 

### trial court could have found from an independent review of the evidence, without considering the juror affidavit, that the result reached by the jurors 

### was not the result intended by them. The court may on 

### its

own initiative order 

### a new trial for any reason forwhich it might have granted a new 

### trial on motion of a party. Rule 59(e), M.R.Civ.P. This does not 

### alter the fact that, absent considerationof the juror a£fidavit, there 

### was no basis for a new trial under section 25-11-102(1), MCA. Jurymisconduct as a ground for new trial may be shown by juror affidavit according to section 25-11-102( 2), MCA. Asjury misconduct, the respondent refers to (1)the 

### error of the jurors inconsidering her failure 

### to have an ankle fusion 

### as negligenceand (2) setting her total damages as $15r000and assigning 85% negligence 

### to the respondent. Montana 

### lawon the use of juror testimony and affidavits upon an inquiry into the validity of the verdict is concisely summarized by Rule 606(b), Montana Rules of Evidence 

### as follows: "Inquiry into validity of verdict 

### or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as 

### to any matter or statementoccurring during the course of the jury's deliberations 

### or to the effect of anything upon his orany otherjuror's mind 

### or emotions as influencing him to assent ordissent from the verdict 

### or indictment 

### or concerning his mental processes inconnection therewith. Nor may his affidavit

### or evidence of any statement by him concerning a 

### matter about which he would be precluded from testifying be received for these purposes. "However, as an exception to this subdivision, a juror may testifyand an affidavitorevidence of any kind be received 

### as to any

### matter or statement concerning only the following questions, whether occurring during the course of the jury's deliberations 

### or not: (1)whether extraneous prejudicial information 

### was improperly brought to the jury's attention; 

### or (2)whether any outside influence 

### was brought 

### to bear upon anyjuror; 

### or (3) whether anyjuror has been induced to assent 

### to any general 

### or special verdict, orfinding on any question submitted to them by the court, by a resort 

### to the determination of chance

# . " The cases on the use of juror affidavits fall into two major categories: 1)those involving external in£luence on the jury, and 2) those involving internal influence on the jury. Where external influence is exerted on the jury 

### or where extraneous prejudicial information is brought 

### to the jury's attention, juror affidavitscan be the basis foroverturning the judgment if eitherparty 

### was therebydeprived of a fair

### trial. Schmoyer v. Bourdeau (1966)

## , 148Mont. 340, 420 P.2d 316 (jurortelephoned a relative with regard to previous litigationby plaintiff); Goff



### v. Kinzle (1966), 148Mont. 61, 417 P.2d 105 (jurorvisited scene of accident, conducted experiments and told jury of his findings); Clarkv. Wenger (1966), 147Mont. 521,. 415 P.2d 723 (jurorhad received evidence outside of court which made him awitness against the plaintiff); Putro v. Baker (1966), 147Mont. 139

## ,410 P.2d 717 (jurorbrought newspaper 

### article into jury 

### roam and showed it to jury)

# . On the otherhand, juror affidavitsmay not be used 

### to impeach the verdict based upon internal influences

on thejury, such as 

### a mistake of evidence 

### or misapprehension of the 

### law. Groundwater v. Wright (1979), 180Mont. 27, 588 P.2d 1003, (jurymisunderstood the 

### law);Charlie v. Foos (1972), 160 Mont. 403, 503 P.2d 538 (jurydesired to be discharged, did not understand 

### lawof contributory negligence);Rasmussen v. Sibert, supra (plaintiff s witness referred to defendant's insurance, which 

### was considered by the jury);Johnson v. Green (1969), 153 Mont. 251, 456 P.2d 290 (presidingjudge not available 

### to answer jury question on instructions but anotherjudge 

### was available). Here, thejuror affidavitreflects the foreman's belief that the jury did not understand the instructions on contributory negligence, comparative negligence and mitigation of damages. This case falls into the categoryof 

### cases involving internal influences on the jury. We hold that the 

### ~istrict Court abused its discretion in granting a new 

### trial on the basis of a juror affidavitwhich purports 

### to impeach the verdict by delving into the thought processes of the jurors. Nonetheless, Mrs. Harry contends that she 

### is entitled 

### to a

new 

### trial because 1)the instructions on contributory negligence and mitigation of damages 

### were erroneous, and 2) there 

### was insufficientevidence to support the giving of the contributory negligence instruction and to support the verdict that Mrs. Harry 

### was 85%negligent. We find that the plaintiff failed to object at trial 

### or in hermotion 

### for new trial to the substance of the instructions on contributorynegligence and mitigation of damages and that the issue of erroneous instructions 

### is not before us. We further find that the evidence 

### was sufficient

### to support the giving of the instruction on contributory negligence and 

### to support thefinding that Mrs. Harry was 85%negligent. Mrs. Harry was married to a construction worker with whom she traveled around the world to various construction sites. She testified that she

was aware of some of the dangers inherent in a construction site and acknowledged the danger of the ground giving way. The jury could have inferred that she knew or should have known that if she stepped too close to the trench the ground might cave in. Mrs. Harry had poor vision in her right eye. She testified that she pivoted towards the right and stepped as close as 12inches from the edge of the trench without looking where she was stepping. The jury was instructed that allpersons are required to be observant and to take such measures as 

### are necessary 

### to protect themselves. The evidence supported the giving of the instruction and the verdict. The order of the District Court granting a new trial to the plaintiff is vacated. The judgment on the verdict stands.

Chief ~ustice



## .................................... Justices

### Mr. Justice John C. Sheehy dissenting:

Themajority opinion takes too narrow a view of our duty on appeal from an order granting a new trial. There are special rules which apply to an appeal from

an order granting a new trial. In section 3-2-204, PICA, defining the power of the Supreme Court, it is stated: "(3) In giving its decision, if a new trial be granted, the courtmust pass upon and determine all the questions of law involved in the casepresented upon such appeal and necessary to the final determination of the case. " 

### As far as I can find, the Montana Supreme Court has not passed upon the extent of its power to review a grant of a

new trial. InCalifornia,however, under a similar rule, the order granting a new trialmust be affirmed if it should have been granted upon any ground stated in themotion, whether or not specified in the order or specificationof

reasons. Treber v. Superior Court (Cal. 1968), 436 P.2d 330, 334. The court there quoted with approval from a statement contained in a case as old as Kauffman v. Maier (1892), 94 Cal. 269, 276, 277, 29 P. 481, 482, to the following effect: "A party has the right to move for a new trial upon any or all of the grounds permitted by the statute, and if the record on which his motion isbased disclosesmore than one ground forwhich a new trial should be granted, the court cannot, by stating in its order that the motion is granted upon one ground only, and denied upon the others, deprive the otherparty of the right to a reviewby this Court of the entire record

# ... If there be any grounds upon which its action can be upheld, the order will be sustained irrespective of theparticular ground given by that court, -- -- 

### whether -- 

### in an opinion or by a statement in the --- -- 

### order itself." (Emphasisadded.) Groundsupon which a party may move for a new trial are contained in section 25-11-102,MCA. They include "irregularity in theproceedings of the 

# . .

# . jury", "misconductof 

### the

### jury", "insufficiency of the evidence to justify the verdict", and that the verdict "isagainst law." Inmoving for a new trial in this case, the plaintiff utilized all four of those grounds. If shewas entitled to a new trial on any one of those grounds, under the statute, section 3-2-204(3)

### ,MCA, and the rule enunciated in Treber, supra, the order of the District Court in this case granting a new trial ought to be sustained. Themajority opinion ignores this elemental rule of the extent of review on orders granting a new trial, to the prejudice of the plaintiff. The verdict in this case is against law because of an inherent error in the instructionsas submitted to the jury. The trial court submitted a special verdict for a determination of the comparative negligence issues, and at the same time submitted an instruction which properly should be used only with respect to a general verdict. The basic underlying error here is notwhat the jury did, according to the affidavit of one juror, in arriving at the verdict. I

### give no account to that at all. Rather, the basic underlying error here is that the jury, instructed with respect to the finding of a general verdict, applied that rule in finding its special verdict. That is the basic error which gives rise to the propriety to the grant in this case of a new trial. In fact I 

### find no error in the instruction given by the court for theminimizing of her personal injuries. The court in that connection instructed the jury as follows: "It is the duty of a person who has been injured to use reasonable diligence in caring for her injuries and reasonable means to prevent their aggravation and accomplishhealing. "Whenone does not use reasonable diligence to care for her injuries,and they are aggravated as a result of such failure, the liability, if any, of anotherwhose act or omission was a

### proximate cause of the original injury,must be limited to the amount of damage thatwould have been suffered if the injured person himself had exercised the diligence required of her. "From themere fact that a competentphysician advised an injured person to submit to a course of treatmentor operationwe are not justified in inferring that the injured person was negligent or unreasonable in declining such treatmentor operation. Other factors as they confronted the injured person must be considered in determining whether, although she refused to follow the physician's advice, she nevertheless exercised reasonable diligence in caring for herself and her injuries." (Court's instruction no. 18.) The foregoing instruction onminimization is an exact copy of instructionno. 14.67 contained in BAJI (5thed.

The error arose in this case because the District Court submitted a special verdict, without an instruction telling the jury how to use the special verdict. As filled out by the jury the specialverdict is as follows: "We, the Jury, answer the questions submitted to us in this SpecialVerdict as follows: "QUESTIONNo. 1. Were the Defendants guilty of neqliqence which was the proximate cause of the ciaimed damages? ANSWER: 

### Yes X 

# . No "Ifyou have answered the above question "NO", you will not answer the remaining questions but will simply sign the verdict and call the bailiff

# .

"Ifyou have answered Question No. 1 "YES",then youmust answer QuestionNo. 2. 

### "QUESTIONNo. 2. 

### What is the full amount of damages thatyou find sustainedby the Plaintiff? $15,000.00. "QUESTIONNo. 3. Was the plaintiff guilty of negligencewhich was the proximate cause of the alleged damages? ANSWER: Yes X. 

### No "If you have answered "NO"to QuestionNo. 

### 3, then you will not answer QuestionNo. 4,but will simply sign the Verdict and call the bailiff,

### "Ifyou answered "YES"to Question No. 3, 

### then youmust answerNo. 4. 

### "QUESTIONNo. 4. 

### Considering the negligence of the plaintiff and the defendants that caused the accident at a total of one hundred percent (loo%), what percentage is attributable to:

"(a) 

### the Plaintiff 85 % 

### "(b) the Defendants 15 % 

### "TOTAL 100 911 0 

### The problem in this case comes about because court's instructionno. 10 instructed the jury as though itwere to return a general verdict after having determined all the issues in the cause: "Youare instructed that the laws of the State of Montana provide that contributory negligence shallnotbar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligencewas not greater than the negligence of the person against whom the recovery is sought, but any damage allowed shallbe diminished in proportion to the amount of the negligence attributable to the person recovering." The court gave its instructionno. 27,which is usual in form,but in this case helped to cause the error: "Uponretiring to your jury room youwill choose one of your number foreman,who will signyour verdict when you shallhave agreed upon one. Eight

(8)

### ormore of your numbermust agree in arriving at a verdict. When you have arrived at a verdict and the same has been signed by your foreman,you will notify the bailiff who will return you into court. " 

### Because the jurywas given a special verdict to determine the issues, instructionno. 10 above should not have been given at all. It directly conflictswith the directions in 

### the specialverdict. The editors of BAJI also agree that

an instruction in the form of instructionno. 27 

### should

never be given with a specialverdict. Form 15.15, BAJI

(5thed. 1960), comment (1975cum. pocket part).

### Because the court in this case was submitting a special verdict to the jurywhich would have the effect of determining the kind of general verdict that eventuallywould be entered in the cause, it should have followed the example in BAJI, and used form no. 15.15 as a concluding instruction to the jury. That instruction should have been as follows: "You shallnow retire and select one of your number to act as foremanwho will preside over your deliberations. "In this case you will not return a general verdict in favor of either party. Instead, itwill be your duty to return only a special verdict in the form of written answers to such of the issuesupon which you have been directed to make findings as are required according to the directions in the form of special verdict which will be submitted to you. "As soon as eight ormore identical jurors have agreed upon every answer required by such directions, so that each of those eight or more may be able to state truthfully that every answer is his or hers, you shall have yourverdict signed and dated by your foreman and then shall returnwith it to this room." Form 15.15, BAJI (5thed. 1960)(1975cum. pocket part). By use of the foregoing concluding instruction, the trial courtwould have avoided what is inherently possible in this case, that the jury fixed the general damages as though itwere finding a general verdict, and itwould be certain that the verdict was the answer of an identical eight jurors in the case. Becausewe are commanded by statute to review all of the record on an appeal from an order granting a new trial, and because at least it fits in the "plain error" rule enunciated in Halldorson v. Halldorson (1977),175Mont. 170, 573 P.2d 169, this case should be affirmed, insofar as it grants a new trial of all the issues in the cause. If themajority had agreed to affirm the grant of a new trial, I should also have discussed the "status"question of an invitee under Montana law for the guidance 

### of the District Court in the new trial.Justice

We concur 

### in the foregoing dissent.



## ............................. JusticesMr. JusticeFrank B. Morrison, Jr., dissenting:

I concur with the remarks made by Justice Sheehy respecting our power toreview. In this case the plaintiff, in the motion for new trial, sufficiently specified statutory grounds which permit us to treat the real error inthis

case.The error committed by the trial courtwas ingiving court's instructionNo. 18 on mitigation of damage without giving an accompanying instructionwhich would prohibit the jury from considering failuretomitigate aspart of the liabilitynegligence assessed inthe special interrogatory. Any conduct of theplaintiff infailing tomitigate damages can only reduce the amount of damages tobe recovered. Such failure on thepart of the plaintiff can never be considered inthe liabilitypart of the case. Here the trialcourterred because the trial courtpermitted the jury touse plaintiff's apparent failure tomitigate as part of plaintiff's negligence under the comparative negligence statute. In the special verdict answer to "questionNo. 4" the jury found theplaintiff to be guilty of 85%of the total negligence. Under the court's instructions

### , the jury

was permitted toinclude, within the 85%assignment, conduct of the plaintiff infailing tomitigate damages. This, of
course, was error. I agree with themajority that a jury verdict cannot be impeached by way of affidavit, aswas done here. The trial court granted a new trial for the wrong reason. However, there isclear error inrecord which justifies the granting of a new trial. Therefore, I would affirm the trialcourt'saction and remand forproceedings inconformity with this dissent.