North Carolina Lawyers Weekly
By MICHELLE LORE, Dolan Media Newswires
When Minnesota personal injury attorney Peter Riley heard that a severely intoxicated driver who rear-ended another vehicle had prevailed at trial, all Riley could do was let out a long whistle.
“He hit a car,” Riley asked, “and won?”
On Jan. 26, 2007, defendant Grant Anseeuw was driving with a BAC of 0.21 when plaintiff Bruce Lyon made a right-hand turn onto the same highway. After rear-ending Lyon’s vehicle within 100 feet of the intersection, Anseeuw’s vehicle crossed traffic and smashed into a nearby building.
In addition to determining Anseeuw was legally intoxicated at the time of the crash, the arresting officer discovered marijuana and drug paraphernalia in and near the vehicle. Anseeuw, who later pleaded guilty to driving while intoxicated, was not injured in the crash, but Lyon claimed to have suffered a soft-tissue neck injury.
After a three-day trial, jurors took just three hours to find both drivers were negligent.
But the jurors also decided Anseeuw’s negligence was not a cause of the accident. Instead, they found that Lyon’s negligence was a direct cause of the crash.
Fairmont, Minn., attorney Michael O’Rourke, who represented the defendant, said that when he got the file his initial thought was that he would be restricted to arguing damages only. But during discovery it became clear he could contest not just the extent of the plaintiff’s injury, which the defense contended was not severe or permanent, but how the accident happened as well.
“It’s the kind of case that you would have expected – when it first came across the insurance adjuster’s or in-house counsel’s desk – that they would have just said, ‘Let’s pay this guy some money to get rid of it,'” O’Rourke said.
JD Hass, the Bloomington, Minn., personal injury attorney who represented the plaintiff, said he took the case because it had such egregious facts.
“I thought that the trial went very well for the plaintiff,” Hass said, “and I was very happy with the way the case went in front of the jury. I was very surprised by the outcome.”
He declined to comment further on the case.
Riley said the verdict illustrates the unpredictability of litigation.
“Mediators tell us, and I tell my clients, that you can never predict what a jury will do in an individual case,” he said. “Anytime you draw citizens … at random, you can have a result that no one would expect.”
Trial bound
The defense offered to settle the matter for $20,000, but the plaintiff wouldn’t accept anything less than the $100,000 policy limits. That refusal to budge made it easier for the defense to decide to go to trial.
“It’s all speculation, but I have to assume the insurer was just feeling confident about the damages,” O’Rourke said.
O’Rourke realized before trial that he had to address the alcohol and drug evidence. He said he spent about an hour and a half during voir dire “sort of feeling the jury out on that particular issue.”
O’Rourke said he began by asking potential jurors whether any of them was religiously or personally opposed to the sale and consumption of alcohol. He then asked whether they thought it was inappropriate to drive if they’d been drinking but were sure they were under the legal limit. Would it be appropriate if they were slightly above the legal limit? Or if they were at 0.21? He said he continued to ask questions along those lines, finally asking if someone could be very drunk and still not be the cause of an accident.
One woman was dismissed for cause after admitting that if there were drugs involved, she could not condone whatever happened regardless of who was at fault.
“It was a hot topic,” O’Rourke said. “The jury, fortunately, was very forthcoming in voir dire.”
O’Rourke said he worked hard to elicit from other jurors whether they had strong feelings about drug or alcohol use. He also elicited a promise from them that if he could show the plaintiff was in whole or in part at fault for the accident, they would put aside their bias toward the alcohol and possible drug use and instead, focus on the law.
“Of course,” he said, “I reminded them of that promise at closing.”
O’Rourke said that he thinks the jury selection process was critical to the outcome of the case.
Voir dire can be tricky, he noted. The goal is to get the issues out there, and if possible, present argument and even bias the jury ahead of time. But all those issues have to be presented as questions, he added.
Day two
At trial, the plaintiff argued that Anseeuw was speeding and that Anseeuw’s intoxication impaired his perception and reaction time.
The defense countered that Anseeuw had the right of way and that the plaintiff was late for work and turned in front of the defendant in his haste. The defense also argued that the plaintiff’s injury was not permanent.
It wasn’t until the second day of trial that O’Rourke fully realized all of the factors at play in the case. One related to the plaintiff’s speed at the time of the accident.
At his deposition, Lyon testified he was supposed to be at work at 8 a.m., and the accident occurred about 10 miles from his workplace. There was evidence that the accident had occurred around 7:30 a.m., so O’Rourke didn’t think much about it.
But at trial, the chief of police, who had investigated the accident, testified that the 911 call came in at 7:42 p.m. and the accident occurred about 7:40 a.m.
The plaintiff then testified that he had to be at work at 7:45 a.m.
“It became apparent to me after the chief of police testified that this guy was probably late for work,” O’Rourke said. “I led [my closing statement] with that … that the plaintiff was late for work, and then I explained to them why. And I think that was critical.
“I could just feel the jury warm up to me and realize that there was more going on here.”
Another key issue at trial was the severe damage to the defendant’s vehicle, which made it look as if he were driving faster than the 30 mph posted speed limit at the time of the accident.
O’Rourke said he had to play the role of physics professor to explain how hitting the building had caused the amount of damage the vehicle suffered.
His tactics worked. In addition to finding that the plaintiff’s negligence was a direct cause of the accident, the jury found that if it had to apportion fault, 70 percent went to the plaintiff and 30 percent to the defendant. The jurors also determined that the plaintiff had not suffered a permanent injury.
“I think it would have been a successful verdict if I had gotten only one of those three,” O’Rourke said. “But for the jury to find all three of those things in our favor – I don’t even know how to describe it.”
