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Plaintiff McDermott was injured while participating in horse activities at a dude Ranch. Plaintiff sued the ranch. The ranch produced a signed release from liability which is not legal in Montana. However, the court holds that such a release is admissible for the purpose of proving that plaintiff was warned of dangers of horse activities.
McDermott and members of his family were paying guests at HPR, a
dude ranch in Beaverhead County. Prior to participating in any
activities at HPR, McDermott was required to sign a Waiver and Release
Agreement (Agreement) purporting to prospectively excuse HPR from
liability for any injuries he may suffer while participating in
activities at the Ranch. On July 23, 2001, under the supervision of
four wranglers, McDermott and ten other guests were saddling their
horses in preparation for a horseback ride. McDermott's stepmother was
among the guests preparing for the ride. Her horse was tethered by a
lead rope to a hitching post. While McDermott attempted to untie this
rope, the horse pulled back. The rope, still wrapped around McDermott's
finger, tightened, severing the distal portion of his right index
finger.
McDermott sued HPR, alleging, among other things, that HPR was
negligent in determining McDermott's ability to safely engage in the equine
activity, in selecting a horse that McDermott could safely manage, in
inspecting and maintaining the tack, and generally by failing to
prevent injury to McDermott during his participation in equine
activities. HPR advanced the affirmative defense that the statutory equine
activity liability limitations, §§ 27-1- 727(1) and 27-1-725, MCA (2003) , shielded them from liability.
Although HPR conceded that the Agreement is not enforceable, they
nonetheless filed a motion in limine seeking to have the Agreement
admitted as an exhibit for the limited purpose of showing that
McDermott was aware that equine activities are
inherently dangerous. In its motion, HPR indicated that it was mindful
that the language releasing HPR from liability may have a prejudicial
effect on the jury and it expressed its willingness to redact the
Agreement such that the potentially prejudicial language would not be
included in the exhibit. McDermott responded with a motion in limine
seeking to exclude the Agreement from being used for any evidentiary
purpose. McDermott correctly observed that the Agreement was an illegal
and unenforceable attempt to prospectively release HPR from tort
liability and postulated, therefore, that it cannot be used for any
purpose; otherwise, HPR would benefit from the illegal contract. After
a hearing, which McDermott and his attorney inexplicably failed to
attend, the court permitted HPR to introduce a redacted version of the
Agreement--excluding any language that prospectively releases HPR from
liability.
At trial, HPR introduced an exhibit (Exhibit 62) that contained a
redacted version of the Agreement. Exhibit 62 omitted all language in
the Agreement that purported to release HPR from liability and only
included those portions of the Agreement that the court deemed
pertinent to McDermott's knowledge and comprehension of the risks
involved in equine activities. As excised, Exhibit 62
read:
1. I acknowledge that inherent risks, hazards and dangers exist on and
around (e.g. U.S. Forest, BLM federal lands, State lands, leased
private lands, fishing rivers and lakes, and transportation associated
with HPR activities and adventures) the HPR that cannot be eliminated,
particularly in the working cattle ranch and wilderness environments
for the types of activities and adventures in which I may participate,
including but not limited to horseback riding.... Such risks, hazards
and dangers include, among others, the unpredictable nature of
horses....
...
I agree to comply with all HPR rules and regulations, including those
given verbally and in writing, and to participate in safety meetings
and the presentation of any safety material, such as a video on horse
safety, which are designed and offered to promote safety in HPR
activities and adventures.
...
3. Knowing the inherent risks, dangers and rigors involved in the
activities and adventures in which I choose to participate at the HPR,
I certify that I am fully capable of participating in the activities
and adventures offered....
During voir dire, a prospective juror had responded to
questions from McDermott's counsel and the judge by indicating that he
expected that McDermott had signed a waiver before participating in
activities at HPR and that it would not be right to allow him to later
invalidate that waiver. Counsel for HPR then engaged the prospective
juror in a colloquy that culminated with a suggestion that a person who
engages in horseback riding assumes the risks involved in such
activities. The record indicates that McDermott's counsel did not
contemporaneously object to any of the questions asked of the
prospective juror nor to any of the responses he provided. During
closing argument, counsel for HPR made two comments to the effect that
McDermott's signature on Exhibit 62 indicates that he acknowledged the
risks inherent in horseback riding. McDermott's counsel did not object
to these comments when they were issued. Not until a judgment had been
entered against him did McDermott allege that it was error to allow any
of these comments to be made in front of the jurors.
The jury found in favor of HPR. The jury indicated that HPR was not
negligent. Judgment was entered requiring McDermott to pay the costs
incurred by HPR in its defense, with interest. McDermott then moved for
a new trial or judgment notwithstanding the verdict based on the
admission of Exhibit 62 and the references that HPR made to the exhibit
during closing argument, which purportedly violated the court's order
admitting the exhibit in redacted form for a limited purpose. The
District Court denied this motion.
HPR served McDermott with a Bill of Costs--a memorandum that listed the
costs it had incurred in defending the action, accompanied by an
affidavit verifying the accuracy of the enumerated costs. The affidavit
states, in pertinent part, "Jared S. Dahle, being duly sworn, deposes
and says:.... That to the best of his knowledge and belief, the items
in the above Bill of Costs are correct, and that said costs have been
necessarily incurred in said action." The affidavit, however, is signed
by Mr. Dahle's partner, Randall Nelson, "for Jared S. Dahle." McDermott
objected that the Bill of Costs fails to comply with the statutory
requirements governing bills of costs and affidavits. The trial court,
finding the Bill of Costs procedurally adequate, overruled McDermott's
objection. McDermott now appeals.
We review a district court's evidentiary rulings for an abuse of
discretion. Busta v. Columbus Hosp. Corp. (1996), 276 Mont.
342, 353, 916 P.2d 122, 128. Absent a showing of such abuse we
will not overturn a district court's ruling on the admissibility of
evidence. Christofferson v. City of Great Falls, 2003 MT
189, ¶ 8, 316 Mont. 469, ¶ 8, 74 P.3d 1021, ¶ 8 (citation
omitted). A court abuses its discretion if it acts "arbitrarily without
employment of conscientious judgment or exceed[s] the bounds of reason
resulting in substantial injustice." VonLutzow v. Leppek, 2003 MT 214, ¶ 14, 317
Mont. 109, ¶ 14, 75 P.3d 782, ¶ 14 (citation omitted).
[4]
[5]
¶ 11 We review a district court's denial of a motion for a new
trial for a manifest abuse of discretion. Satterfield v. Medlin, 2002 MT 260, ¶ 14, 312
Mont. 234, ¶ 14, 59 P.3d 33, ¶ 14. A manifest abuse of discretion
is one that is obvious, evident or unmistakable. Shammel v. Canyon Resources Corp., 2003 MT 372,
¶ 12, 319 Mont. 132, ¶ 12, 82 P.3d 912, ¶ 12 (citation omitted).
[6]
¶ 12 We review a district court's award of costs to determine
whether the district court abused its discretion. Mularoni v. Bing, 2001 MT 215, ¶ 22, 306 Mont.
405, ¶ 22, 34 P.3d 497, ¶ 22 .
Issue 1: Whether the District Court abused its
discretion when it admitted a redacted version of a prospective release
from liability as evidence that plaintiff was aware of the inherent
risks involved in his participation in equine activities.
McDermott essentially reiterates the arguments that he has previously
and repeatedly made respecting the admissibility of Exhibit 62.
[FN1] He contends that the Agreement is an illegal contract and
is void. Accordingly, he contends that it cannot be admitted for any
purpose. McDermott protests that during closing argument, HPR
impermissibly suggested that McDermott's signature on Exhibit 62
indicated that he had assumed the risk of participating in equine
activities. Finally, McDermott argues that during voir dire,
HPR violated the court's order limiting the contents and use of Exhibit
62 by insinuating that McDermott had signed a waiver and release of
liability.
McDermott, however, failed to contemporaneously object to the
purportedly impermissible comments made during voir dire and
closing argument. A party that does not object to an alleged error
forfeits the right to appeal that error. Barnes v. United Industry, Inc. (1996), 275
Mont. 25, 30, 909 P.2d 700, 703. To preserve an issue for appeal,
a complaining party must object as soon as the grounds for objection
are apparent. Schuff v. Jackson, 2002 MT 215, ¶ 30, 311 Mont.
312, ¶ 30, 55 P.3d 387, ¶ 30 (citations omitted) (relating to
objections to evidence); see also Reno v. Erickstein (1984), 209 Mont. 36, 40,
679 P.2d 1204, 1206-07 (finding failure to object to allegedly
impermissible statements made during closing argument was fatal to the
success of the issue on appeal). If comments made during closing
argument did impermissibly refer to the excised portions of the
Agreement, the grounds for McDermott to object were apparent as soon as
those comments were issued. Because McDermott failed to
contemporaneously object to the comments made during closing argument,
he has waived his right to appeal this issue.
By not timely objecting, one likewise waives the right to appeal
purportedly impermissible comments made by a prospective juror and
counsel during voir dire. See Burlington Northern R. Co. v. Whitt (Ala.1990),
575 So.2d 1011, 1018 ("[f]ailure to lodge a timely objection to
an improper question asked on voir dire waives the point as error on
appeal") (citation omitted); Nesseth v. Omlid (N.D.1998), 574 N.W.2d 848, ¶
9 (holding that plaintiff forfeited any claim of error by failing
to object to 35 improper comments made by opposing counsel during voir
dire ); State v. Walton (1989), 159 Ariz. 571, 769 P.2d
1017, 1026-27, aff'd by Walton v. Arizona (1990), 497 U.S. 639, 110
S.Ct. 3047, 111 L.E.2d 511 (failure to object to prejudicial
comments made by the trial judge during voir dire was waived
when an objection is not made during voir dire ); Cf. U.S. v. Alviso (9th Cir.Cal.1998), 152 F.3d
1195, 1198 (defendant, by objecting before trial, timely objected
to the jurors hearing about his prior convictions when the court read
his indictment, because an indictment presented at a pre-trial hearing
is not evidence). McDermott argues that the line of questioning by
HPR's attorney during voir dire amounted to improper argument
in violation of the court's order excluding evidence of the pre-tort
release portion of the Agreement. The Rules of Civil Procedure require
that a party who has an opportunity to object to a ruling at the time
it is made must "make[ ] known to the court the action which the party
desires the court to take," "at the time the ruling or order of the
court is ... sought[.]" Rule 46, M.R.Civ.P . Courts have long recognized
the folly in giving litigants an incentive to withhold all potential
objections (including during voir dire ) in the hopes that
they could later avoid an adverse judgment by then appealing the
alleged error to which they had previously acquiesced. See Rasmussen v. Sibert (1969), 153 Mont. 286, 295,
456 P.2d 835, 840 (lamenting that to allow a litigant to withhold
an objection and then appeal on that basis "would permit a litigant to
submit his case to the jury for a possible verdict in his favor, and in
the event he was unsuccessful, would permit him another determination
by another jury"); see also State v. Powers (Or.1882), 10 Or. 145, 151.
Therefore, we hold that McDermott's failure to timely object to the
propriety of opposing counsel's comments made during voir dire
extinguished his present claim of error. Accordingly, we will consider
only McDermott's argument with respect to the admissibility of Exhibit
62.
HPR argues that Exhibit 62 was relevant to establish whether McDermott
was aware of the inherent risks involved in equine
activities. HPR notes that the statutory provisions relating to
liability for equine activities shield it from
liability if McDermott expected or was aware of the risks posed by the
unpredictable nature of horses.
The statutory provisions limiting the liability of equine
professionals provide protection from liability when the participant's
injury is caused by risks inherent in equine
activities that the participant expected or should have expected. Section 27-1-725, MCA , announces dual policies of
the State of Montana:
[A] person is not liable for damages sustained by another solely as a
result of risks inherent in equine activities if
those risks are or should be reasonably obvious, expected, or necessary
to persons engaged in equine activities....
[A]n equine activity sponsor or equine
professional who is negligent and causes foreseeable injury to a
participant bears responsibility for that injury in accordance with
other applicable law.
Among the statutorily enumerated risks inherent in equine
activities is "the unpredictability of an equine's
reaction to such things as ... sudden movement ... and unfamiliar ...
persons[.]" Section 27-1-726(7)(b), MCA . Finally, § 27-1-727(1), MCA , provides that "an equine
activity sponsor ... is not liable for an injury to ... a participant
engaged in an equine activity resulting from risks
inherent in equine activities[,]"except as provided
in subsection (2). Subsection (2) reads "[a]n equine
participant shall act in a safe and responsible manner at all times to
avoid injury to the participant and others and to be aware of risks
inherent in equine activities." Section 27- 1-727(2), MCA . Exactly how the
Legislature envisioned subsection (2) as an exception to the general
limitation on the liability of equine activity
sponsors is unclear. In light of the Legislature's express policy
statement, we surmise that the intended effect of this provision is to
retain liability for equine activity sponsors when a
participant acts in a safe and responsible manner but remains totally
ignorant of the risks inherent in equine activities.
The practical effect of these statutory provisions is to pronounce that
equine activity sponsors do not have a duty to protect
participants from either unavoidable risks, or the inherent risks of equine
activities of which the participant is or should be aware. If injury is
due to an inherent risk of equine activities and the
participant expected that risk, then the equine
activity sponsor cannot have been negligent--the injury was due to an
unavoidable risk of which the participant was aware, so the sponsor
could not have breached any duties to warn of or eliminate that risk.
Thus, so long as the participant expects a risk inherent in equine
activities, pursuant to the statute, the equine
activity sponsor may not be held liable for injury suffered as a result
of that risk.
We reiterate that the pre-tort release that McDermott signed was
illegal. See Miller v. Fallon County (1986), 222 Mont. 214, 221, 721
P.2d 342, 346-47 (indicating that a prospective release from
liability for negligence--a violation of law--is against the policy of
the law and illegal, despite being a private contract between two
persons without significant public implications). The Agreement that
McDermott signed stated that he acknowledged the unpredictable nature
of horses as an inherent risk of the activities of which he would
partake and indicated that he knew the inherent risks involved in the
activities in which he chose to participate. HPR has neither attempted
to enforce the Agreement, nor to use Exhibit 62 as evidence that
McDermott had waived his right to sue for injuries caused by the
Ranch's tortious conduct. Rather, HPR removed any exculpatory language
from Exhibit 62 and offered it to demonstrate that McDermott had notice
of the inherent risks posed by the unpredictable nature of horses;
thus, as affirmatively pleaded, HPR endeavored to establish that the
statutory provisions shielded it from liability. For the following
reasons, we conclude that the District Court did not err when it
permitted HPR to make use of Exhibit 62, a redacted version of the
illegal exculpatory agreement, to show that HPR was protected by the
statute.
Evidence must be relevant in order to be admissible. Rule 402,
M.R.Evid. Relevant evidence has "any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Rule 401, M.R.Evid. Courts may admit
evidence that is admissible for one purpose but not admissible as to
another purpose. Rule 105, M.R.Evid. The portion of the Agreement that
survived as Exhibit 62 provided McDermott with notice that horseback
riding involves inherent risks, including, specifically, the
unpredictable nature of horses. By signing the Agreement, McDermott
ostensibly indicated that he was aware of such risks. In other words,
McDermott should have expected that the horses he worked with might
react unpredictably to his presence. The statutory defenses proffered
by HPR pertain to this exact scenario. Thus, McDermott's awareness of
such risks is clearly of consequence to the application of the
statutory defenses. Exhibit 62 is relevant to demonstrate that
McDermott was aware of the risks inherent in horseback riding and any
potential for prejudice was minimized by excising all waiver-related
language.
Other situations exist where courts admit evidence for a specific
purpose while prohibiting its use for another purpose. For instance,
evidence of subsequent remedial measures is not permitted to establish
negligence or culpable conduct but it may be admitted for other
purposes. Rule 407, M.R.Evid.; see also Rieger v. Coldwell (1992), 254 Mont. 507, 512, 839 P.2d
1257, 1259-60 (holding that the plaintiff should have been
permitted to introduce evidence of subsequent repairs to light fixtures
other than the one involved in the accident in order to refute
testimony that defective sheetrock at the scene of the accident was its
sole cause); Lawlor v. County of Flathead (1978), 177 Mont.
508, 515, 582 P.2d 751, 755 (holding that plaintiff's testimony
concerning repairs made to a road by a county two days after an
automobile accident should have been admitted to rebut testimony that
repairs were infeasible); Cech v. State (1979), 184 Mont. 522, 531, 604
P.2d 97, 101-02 (holding that evidence of the installation of a
guardrail following an accident was admissible to refute defendant's
contentions that recovery areas were preferable to guardrails with
respect to safety and economics). Similarly, although evidence of
liability insurance is generally prohibited for purposes of
establishing negligence or liability, we have held that it is error to
exclude evidence of liability insurance when it is used only to
establish that a party has complied with the terms of their
underinsured motorist policy by settling with the tort-feasor's
liability insurer before seeking relief from their own carrier. Dill v. Thirteenth Judicial District, 1999 MT
85, ¶ 22, 294 Mont. 134, ¶ 22, 979 P.2d 188, ¶ 22; see also
Rule 411, M.R.Evid. Likewise, evidence acquired by an employer
subsequent to discharge of an employee may not be introduced to provide
collateral reasons for firing the employee, but may be used to
substantiate the reasons that were previously enumerated in a discharge
letter. Jarvenpaa v. Glacier Elec. Co-op., Inc., 1998
MT 306, ¶ 41, 292 Mont. 118, ¶ 41, 970 P.2d 84, ¶ 41. McDermott
offers no argument, let alone a persuasive one, as to why we should not
afford similar treatment to a carefully redacted pre-tort release such
as Exhibit 62.
It is axiomatic that "[a]n appellant carries the burden of establishing
error by the trial court," and must cite to authority that supports the
theory being advanced on appeal. Rieman v. Anderson (1997), 282 Mont. 139, 147,
935 P.2d 1122, 1127 (citing Rule 23, M.R.App.P.). McDermott asserts
that because the Agreement is illegal and unenforceable, it may not be
used to his disadvantage for any purpose.
[FN3]
FN3.
In addition to lacking support, this argument reaches too far. Surely,
if McDermott were to contend that he was not actually present at the
Ranch on the day when he signed the Agreement and so could not have
viewed a video on horse safety on that day, the Agreement could be
admitted as evidence that McDermott was at least present at the Ranch
on that date.
He fails, however, to support this conclusory statement with any
authority that stands for this proposition. Moreover, McDermott fails
to cite any authority to support his position that Exhibit 62, a
redacted version of the Agreement was improperly admitted. McDermott
has not met his burden of establishing error by the trial court and has
failed to show that the District Court abused its discretion when it
admitted Exhibit 62.
We note that other courts have similarly permitted entry into evidence
of redacted versions of written exculpatory agreements, though such
agreements would not be enforceable or admissible as evidence that the
signer had prospectively released another party from liability. See
Zinz v. Concordia Properties, Inc.
(Fla.Dist.Ct.App.1997), 694 So.2d 120, 122 (indicating that it
is appropriate to redact documentary evidence in order to remove all
language pertaining to release and indemnification but to preserve
those portions that are admissible because indicative that the
plaintiff had notice that the property was under construction); see
also Poston v. Skewes (4th Cir.Va.2002), 49 Fed.Appx. 404,
405-06, 2002 WL 31309233 (Unpublished) [FN4]
(affirming a district court's holding that plaintiff had assumed the
risk of a hunting outing when that holding depended on a redacted
agreement that contained language acknowledging the risks involved, but
excluded language releasing claims based on future negligence).
Accordingly, we hold that admission of Exhibit 62 was not error.
Issue 2: Whether the District Court manifestly abused its
discretion when it denied McDermott's motion for a new trial or
judgment notwithstanding the verdict.
McDermott argues that his Due Process rights were violated when Exhibit
62 was admitted over his objection and this violation was compounded by
the purportedly impermissible comments made by opposing counsel during
closing argument. McDermott claims that these errors materially
affected his substantial rights, entitling him to a new trial. The
District Court did not err in admitting Exhibit 62 and McDermott waived
his right to appeal the propriety of the comments made during closing
argument. Accordingly, the District Court did not abuse its discretion
when it denied McDermott's motion for a new trial or judgment
notwithstanding the verdict.
Issue 3: Whether the District Court abused its discretion
when it awarded costs to HPR.
McDermott argues that the District Court misinterpreted the statutory
requirements of § 25-10-501, MCA, governing the contents of a bill
of costs and improperly concluded that HPR's Bill of Costs complies
therewith. McDermott contends that Randall Nelson, who signed the
verification attesting that the costs enumerated in the memorandum were
correct and necessarily incurred, was not actually sworn and did not
attest to his personal knowledge; rather, Mr. Nelson signed a document
which purported to present Mr. Dahle's knowledge and belief and which
indicated that Mr. Dahle had been duly sworn. Moreover, he contends,
the notary does not attest that Mr. Dahle is the person on behalf of
whom Mr. Nelson executed this sworn statement. Although conceding that
the verification of the Bill of Costs was signed in the absence of Mr.
Dahle by his partner Mr. Nelson, HPR retorts that the verification in
the Bill of Costs complies with § 25-10-501, MCA, in every material respect and the
Bill of Costs should be granted in its entirety.
In order to recover costs, the party who receives a favorable judgment
must serve the adverse party within five days with:
a memorandum of the items of his costs and necessary disbursements in
the action or proceeding, which memorandum must be verified by the
oath of the party, his attorney or agent, or the clerk
of his attorney, stating that to the best of his knowledge and
belief the items are correct and that the disbursements have been
necessarily incurred in the action or proceeding.
Section 25-10-501, MCA (emphasis added). By statute,
a notary who takes a verification upon oath must "determine, either
from personal knowledge or from satisfactory evidence, that the person appearing
before the officer and making the verification is the person whose
true signature is on the statement verified." Section 1-5-603(2), MCA (2003) (emphasis added).
Thus, the statute requires the personal physical presence of the person
making the verified statement. Consistent with this, we have defined an
affidavit as "a written statement, under oath, sworn to or affirmed by
the person making it before some person who has authority to administer
an oath or affirmation.... The maker must have personal knowledge
of the information contained in the statement and must swear to its
validity." Mountain States Resources, Inc. v. Ehlert
(1981), 195 Mont. 496, 503, 636 P.2d 868, 872 (emphasis added)
(citations and quotations omitted); see also § 26-1-1001, MCA. Mr. Nelson was present to
subscribe to and swear to the statement before the notary who
administered the oath, as indicated by his signature on the
verification. Accordingly, Mr. Nelson was the maker of the statement
contained in the verification. Yet, the statement contained in the
verification gives no indication that Mr. Nelson has personal knowledge
of the information contained in the statement and does not state that
Mr. Nelson swore to its validity. Rather, the verification indicates
that it was subscribed and sworn to by Mr. Dahle. Mr. Dahle, however,
was not actually present to be sworn by the notary, subscribe to his
statement or sign the verification. The affidavit verifying the Bill of
Costs is improper as a matter of formality.
This formally flawed affidavit is functionally defective as well. The
Legislature imposed the requirement that bills of costs be verified
upon oath to ensure that these documents reliably reflect actual costs
incurred. The person who swears to the accuracy of the enumerated costs
may be held accountable if it is later shown that they have knowingly
overstated their costs. See § 45-7-202, MCA (indicating that such conduct
constitutes false swearing punishable by fine and/or imprisonment). To
swear an absent person who does not actually sign the statement is
functionally equivalent to having an unsworn statement. The person who
has purportedly subscribed to and sworn to the truth of the statement
did not in fact "make" or sign the statement. Likewise, no
documentation exists that the person who actually "made" the statement
was under oath when he attested to its truth by signing it. Nobody
could be prosecuted for false swearing, the consequences of which
render sworn statements reliable. This is the functional defect with
the verification in this case. There is no indication that Mr. Nelson
made a sworn statement and there is no indication that Mr. Dahle
attested to the validity of the statement which he purportedly made, as
he did not sign it, and being absent, could not have been properly
sworn. This fatal deficiency renders the Bill of Costs invalid.
Accordingly, the District Court abused its discretion when it awarded
costs to HPR. The court's order awarding costs must be vacated.