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Cartier v. Northwestern Electric

January 25, 2010

DONALD CARTIER AND KIMBERLY CARTIER, PLAINTIFFS AND APPELLANTS
v.
NORTHWESTERN ELECTRIC, INC., DEFENDANT AND APPELLEE



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Richard L. Hagar, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

AFFIRMED.

[¶1] Donald and Kimberly Cartier appeal from a district court judgment dismissing their claims against Northwestern Electric and from an order denying their motion for a new trial. We conclude the district court did not abuse its discretion in giving two failure-to-mitigate instructions to the jury or in denying the motion for a new trial. We affirm.

I.

[¶2] Donald Cartier was injured when he fell off a stepladder while examining duct work in the ceiling of his basement. He brought a personal injury claim against Northwestern Electric, and his wife, Kimberly Cartier, brought a loss of consortium claim. The Cartiers claimed that Donald Cartier fell after sustaining an electrical shock as the result of leaning against an incorrectly wired transformer. During the litigation, Northwestern Electric conceded it had incorrectly wired a transformer in the Cartiers' basement, which would have the result of giving a shock to someone who touched the transformer and some other metal object at the same time. Northwestern denied, however, that the error caused Donald Cartier's accident, or that any electrical shock was more than minimal. Northwestern contended that Donald Cartier was also negligent, that he assumed the risk of injury, and that he failed to exercise reasonable care to avoid injury, because he improperly used an unsafe ladder in the dark. Northwestern also contended Donald Cartier failed to exercise reasonable care to mitigate damages, arguing he overprotected his hip during the rehabilitation process.

[¶3] After a five-day trial, a jury found Donald Cartier and Northwestern each fifty percent at fault. The district court therefore dismissed the Cartiers' case with prejudice and granted costs and disbursements of $32,565.31 to Northwestern. The Cartiers moved for a new trial, and the district court denied their motion. The Cartiers appeal, arguing the district court erred in giving two instructions to the jury: 1) an instruction defining "fault" as including a failure to exercise reasonable care to avoid an injury or to mitigate damages; and 2) an instruction titled "Duty to Avoid or Minimize Damages," which stated a person may not recover damages for any injury that could have been prevented by the exercise of ordinary care to avoid loss or minimize damages. The Cartiers contend the district court abused its discretion when it determined sufficient evidence existed to justify the two jury instructions.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II.

[¶5] On appeal, the Cartiers argue the district court abused its discretion by giving two jury instructions on the duty to avoid or minimize damages and, therefore, abused its discretion by denying the motion for a new trial.

A.

[¶6] The Cartiers agree that the instructions correctly state the law.

[¶7] During the trial, the Cartiers objected to the two instructions because there was "no evidence" to support giving them.

[¶8] In support of their motion for a new trial, the Cartiers argued there was not "sufficient evidence" to support giving the two instructions. As the district court stated in its order denying the motion for new trial:

Because Cartier's objection to the jury instructions on "Fault" and "Duty to Avoid or Minimize Damages" at the time of trial was based on sufficiency of the evidence grounds, the Court will consider Cartier's ...


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