Scott Raden, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1525

Scott Raden,
Appellant,

vs.

The Estate of Marvin Tvedt,
Respondent.

Filed April 3, 2017
Affirmed
Cleary, Chief Judge

Stearns County District Court
File No. 73-CV-14-9656

Isaac I. Tyroler, TSR Injury Law, Bloomington, Minnesota (for appellant)

Darwin S. Williams, Eden Prairie, Minnesota (for respondent)

Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Following a jury verdict in favor of res pondent, the estate of Marvin Tvedt, on
appellant Scott Raden’s negligence claim arising out of an automobile collision, appellant
asserts that the district court erred by (1) denying judgment as a matter of law, because the
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evidence supporting respondent’s medica l-emergency defense was speculative and
(2) denying a new trial, because the district court’s responses to the jury’s questions were
prejudicial. Because a jury could have reasonably found, based on the direct and
circumstantial evidence, that the cause of th e automobile accident was respondent’s first-
time seizure, and because the district court did not abuse its discretion in its answer to the
jury’s questions, we affirm.
FACTS
On an afternoon in Nove mber 2013, Raden drove home from work and traveled
northbound on Pine Cone Road. A middle left-turn lane se parated the northbound lane
from the southbound lane. At the same time, Martin Tvedt drove southbound on Pine Cone
Road. Tvedt’s vehicle gradually veered into oncoming traffi c, eventually colliding with
Raden’s vehicle head on.
In November 2014, Raden f iled a personal-injury lawsuit against Tvedt. Before
trial, Tvedt died, and respondent, Marvin Tvedt’s estate, was substituted as the defendant.
Respondent’s defense at trial was that Tvedt suffered a first-time seizure while driving,
excusing his driving conduct. At the close of evidence, the district court directed a verdict
finding Tvedt’s driving negligent, but submi tted the question to the jury on whether the
crash was caused by a medical emergency experienced by Tvedt before the collision.
The evidence at trial regarding the timing of Tvedt’s seizure was largely
circumstantial as there were no eyewitnesse s to Tvedt having the seizure before the
accident. Raden testified that Tvedt’s vehicle first came to his attention when it crossed
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into the left-turn lane. Raden said that he did not observe Tvedt or anything inside Tvedt’s
vehicle before the collision.
A driver who was immediately behind Tved t that day testified that Tvedt’s vehicle
gradually veered leftward acr oss the center-turn lane toward oncoming traffic before
colliding with Raden. The dr iver said that she did not observe Tvedt’s brake lights
illuminate before the collision, and that sh e did not otherwise obs erve Tvedt driving
erratically.
Tvedt testified through a deposition read for the jury that he wa s 52 at the time of
the deposition, had been driving since he was 16 years old, and had never been in any other
car accident or had his license suspended or re voked. Tvedt said he never text-messaged
others on his phone while driving. Tvedt testif ied that on the date of the accident he left
work around 3:00 p.m. and that he spoke to a friend on the phone telling her that he was
going to the bank. He said that he hung up the phone, put his phone in his pocket, got into
his vehicle, and drove to the bank. Tvedt denied texting with his friend while driving. He
said that he did not remember the accident, and the last thing he remembered before waking
up in a hospital room was turning onto Pine Cone Road. A doctor later diagnosed Tvedt
as having suffered a first-time seizure around the time of the accident. Tvedt testified that
he never had a seizure prior to the day of the accident.
Responding officers Kari Bonfield and Jill Lundquist testified at trial. Bonfield was
on patrol that day and, after arriving at the accident scene, noted that Tvedt was
unresponsive and not able to communicate. Bonfield located Tvedt’s cell phone to contact
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his next of kin, and when she opened the phone she noticed a recent texting conversation.
Tvedt’s cell phone records were subpoenaed and Bonfield discovered that Tvedt sent a text
message at 3:40:05 p.m. and received a text message at 3:41:24 p.m. Bonfield calculated
that four minutes and 49 sec onds had passed between Tvedt’s last-sent text and the first
911 call about the accident at 3:44:49 p.m. As part of her investigation into Tvedt, Bonfield
drove from Tvedt’s residence to the accident scene to calculate the time of the route; it took
Bonfield four minutes and 31 seconds to drive the route at approximately the same time of
day as the accident.
Officer Lundquist testified that Tvedt wa s not conscious when she arrived at the
scene. Lundquist thought Tv edt was showing signs of bein g “postictal,” a medical term
for exhibiting post-seizure symptoms, because Tvedt’s body was shaking. Lundquist said
that Tvedt’s shaking was similar to seizures she had observed in the past. Lundquist also
said Tvedt was confused about his surroundings and became combative when loaded into
the ambulance. She said that Tvedt was coopera tive with the tex ting-while-driving
investigation and signed consent waivers for the police to search his cell phone.
An off-duty paramedic, w ho arrived early at the accident scene, testified by
deposition that when she first arrived at th e scene Tvedt was not responding and his head
was down. Having experience treating seizures, she agreed that Tvedt was postictal. She
did not see Tvedt convulse and noticed that when Tvedt awoke he seemed lethargic. She
testified to observing Tvedt’s cell phone on the vehicle’s floor.
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Two neurologists testified by deposition about Tvedt’s medical status: Dr. Anh
Nguyen, Tvedt’s treating neurologist, and Dr. Richard Golden, a neur ologist retained by
Raden. Dr. Nguyen was the first neurologist to treat Tvedt after the accident. She testified
that Dr. Fark, the emergency room (ER) docto r treating Tvedt on the day of the accident,
noted that Tvedt had a laceration on the tip of his tongue. Dr. Nguyen said that the tongue
laceration was proof that Tvedt suffered a seizure. Dr. Nguyen determined that Tvedt had
a first-time seizure, but that it was impossible to tell whether the seiz ure occurred before
or after the accident. Dr. Nguyen’s depositi on revealed that Dr. Fa rk wrote in Tvedt’s
medical records: “It is possible that the se izure may have occurred with the accident and
concussion, but, again, I’m not really seeing external signs of head injury.”
Dr. Golden testified that seizures can re sult from head injuries sustained during an
accident, and that it is impossible to determin e whether the seizure in this case occurred
without provocation before th e accident or after the accident due to head trauma.
Dr. Golden said that he treats people for head injuries and that not every person with a head
injury exhibits external, objec tive signs of trauma. Dr. Golden explained that the term
“postictal” generally refers to post-seizure activity but it could in clude other types of
behavior that represent the recovery of th e brain from an event lik e a head injury or
concussion. He said postictal symptoms include confusion and combativeness.
After both parties rested, the district cour t directed a verdict finding Tvedt’s driving
negligent, but it submitted a speci al-verdict form to the jury asking if the accident was
caused by a medical emergency experienced by Tvedt before the collision.
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During its deliberations, the jury submitted the following questions to the district
court: “Do we base our decision solely on evidence or the reasonab ility of the situation
from the evidence? If there are gaps in the facts, can a jury lawfully say yes?” The district
court responded, “You are to base your decision on the evidence, and reasonable inferences
that you can draw from the evidence.” The district court underlined the word “and.”
The jury answered the speci al verdict form in responden t’s favor finding that the
accident was caused by a medical emergency. After the trial, Raden moved for judgment
as a matter of law (JMOL) or a new trial. The district court denied the motions.
Raden now appeals and challenges the district court’s denial of his motions.
D E C I S I O N
I. JMOL Motion – Emergency-Rule Defense
Raden argues that the district court erred in denying his JMOL motion because
respondent cannot meet its burden, as a matter of law, in establishing an emergency-rule
defense. We disagree.
A party may make or renew a request for j udgment as a matter of law after the case
has been submitted to the jury. Minn. R. Civ. P. 50.02. If a verdict is returned, the district
court may (1) allow the judgment to stand, (2) order a new trial, or (3) direct entry of
judgment as a matter of law. Minn. R. Civ. P. 50.02(a).
Appellate courts review a denial of a motion for JMOL de novo. Bahr v. Boise
Cascade Corp. , 766 N.W.2d 910, 919 (M inn. 2009). When reviewing the denial of a
motion for JMOL, appellate courts “construe th e evidence in the light most favorable to
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the prevailing party and ask whether there is [a] legally sufficient ev identiary basis for a
reasonable jury to find for the prevailing party.” Karl v. Uptown Drink, LLC, 835 N.W.2d
14, 17 (Minn. 2013) (alteration in original) (quotation omitted).
The emergency rule is “a particular application of the reasonable care test” and may
absolve a driver of liability if the driver is “suddenly confronted with an emergency through
no fault of his own” and “uses reasonable car e commensurate with the sudden peril with
which [the driver] is confronted.” Brady v. Kroll , 244 Minn. 525, 530, 70 N.W.2d 354,
357-58 (1955). “The party w ho seeks [the rule’s] benefit has the burden of proving the
existence of an emergency not caused by his negligence.” Sabasko v. Fletcher , 359
N.W.2d 339, 343 (Minn. App. 1984), review denied (Minn. Mar. 21, 1985).
Raden argues that respondent cannot, as a matter of law, meet its burden to show
the emergency-rule defense because no eyew itnesses directly observed Tvedt having a
seizure in his vehicle before the accident and two neurologists both agreed it was
impossible to determine from the medical reco rds if Tvedt had the seizure prior to the
accident. Raden asserts that the jury could only speculate or guess about what caused the
accident.
As the district court determined, Raden is correct that there is no direct evidence in
the form of eyewitness testimony or medical testimony definitively showing that Tvedt
suffered a seizure immediately before the collis ion. But, in civil cases, a fact may be
proved through direct or circumstantial evidence and the law makes no distinction between
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the weight given to eith er type of evidence. Friend v. Gopher Co. , 771 N.W.2d 33, 40
(Minn. App. 2009).
Construed in the light most favorable to respondent, the direct and circumstantial
evidence presented at trial support the jury ’s conclusion that Tvedt suffered a medical
emergency before the collision. The entire evidence at trial sh owed the following.
Immediately before the collision, the driver behind Tvedt did not observe Tvedt activate
his brake lights, observed no erratic drivi ng, and noticed that Tvedt’s vehicle moved
gradually to the left into onco ming traffic. There was little evidence showing that Tvedt
swerved to avoid the collision. A responding officer and an off-duty paramedic observed
that Tvedt was postictal when they arrived after the collision. Tvedt first was unresponsive,
and then he was confused about his surroundings and combative.
Doctors determined that Tvedt suffered a seizure near the time of the accident, either
immediately before or after. The treating ER doctor noted that he saw no signs of head
trauma. The ER doctor also noted that Tvedt had a laceration on his tongue, an indication
of a seizure. Tvedt could not remember the acci dent and said that he does not text while
driving. He said his cell phone was in his pocket while driving. Over three decades of
driving, Tvedt had never been in a car accide nt, and he never had hi s license revoked or
suspended. Finally, Tvedt cooperated with the texting-while-driving investigation, and
voluntarily took an anticonvulsant medication after the first seizure.
The district court correctly concluded that this evidence provided a legally sufficient
basis for a reasonable jury to find for respondent. Because of Tvedt’s driving behavior
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immediately before the accident, his clea n driving record, his cooperation with law
enforcement, the lack of evid ence of a head injury, his postictal symptoms immediately
after the accident, and the time of day, a reasonable jury could infer that it was more likely
than not that Tvedt became incapacitated before the accident and that this emergency was
the cause of the accident.
Raden relies on Schweich v. Ziegler, Inc. , 463 N.W.2d 722, 729 (Minn. 1990), in
which the Minnesota Supreme Court stated in a negligence case that when the evidence
only allows the trier of fact to do no more than guess as to which of several acts was, in
fact, the cause of the injury, the plaintiff has failed to prove negligence. Raden asserts this
rule applies equally to resp ondent’s evidence, which Raden says left room only for
speculation. However, the jury here was not guessing as to which of several acts was in
fact the cause of an injury . Rather, the direct and ci rcumstantial evidence supported
inferences that the seizure caused the accident and those in ferences reasonably
preponderated over other theories of causation.
Raden also relies on E. H. Renner & Sons, Inc. v. Primus, 295 Minn. 240, 243, 203
N.W.2d 832, 834-35 (1973) (citations omitted), where the supreme court stated:
[V]erdicts cannot be based upon mere speculation or
conjecture. Proof of a causal connection must be something
more than merely consistent w ith the complainant’s theory of
the case.
Where the entire evidence sustains, with equal
justification, two or more incons istent inferences so that one
inference does not reasonably preponderate over the others, the
complainant has not sustained the burden of proof on the
proposition which alone would entitle him to recover.

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Unlike E. H. Renner & Sons, 295 Minn. at 243-44, 203 N.W.2d at 834-35, the entire
evidence at trial sustained one set of inferences and led to the conclusion that Tvedt had an
emergency that caused the accident. Again, these inferences reasonably preponderated
over other sets of inferences supporting an alternative th eory, such as Tvedt’s unsafe
driving causing the accident.
Raden also cites Hagsten v. Simberg , 232 Minn. 160, 164, 44 N.W.2d 611, 613
(1950), where the supreme court held that mere proof that an accident occurred is not
sufficient to prove neg ligence without actual pr oof of negligence or its causal relation to
the injury. Likewise, Raden argues here that mere proof of the collision is not sufficient to
prove that the collision was cau sed by a medical emergency wi thout actual proof of that
emergency. Hagsten is distinguishable because in th at case there was no eyewitness
testimony and no physical evidence whatsoever to prove the defendant’s negligence. 232
Minn. at 163-64, 44 N.W.2d at 612-13. Unlike in Hagsten, the evidence admitted at trial
in this case demonstrated the likely cause of the accident, not merely the fact that an
accident occurred.
Citing an unpublished Minnesota case a nd cases from other states, Raden argues
that, to succeed on a sudden-medical-emergenc y defense, a defendant must have an
eyewitness, such as a co-passenger, or a medical expert, testify that a sudden medical
emergency was the cause of the accident. Such a rule is contrary to Minnesota law, which
allows a fact to be proved through direct or circumstantial evidence and makes no
distinction between the weight given to either type of evidence. Friend, 771 N.W.2d at 40.
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Further, this argument is unava iling because it ignores the fact that eyewitnesses in this
case directly observed Tvedt’s driving behavior before the accident.
In sum, because there was a legally sufficient evidentiary basis for a reasonable jury
to find for respondent, the district court did not err in denying Raden’s JMOL motion.
II. Motion for a New Trial – Additional Jury Instructions
Raden next argues that he is entitled to a new trial because the district court’s
additional instruction to the jury during its deliberations unfairly emphasized that the jury
should make inferences.
A new trial may be granted to any of the parties because of an “[i]rregularity in the
proceedings of the court . . . or any order or abuse of discretion, whereby the moving party
was deprived of a fair trial,” or because of “[e]rrors of law occurring at the trial.” Minn.
R. Civ. P. 59.01. Denying a motion for a new trial on the ground of an erroneous jury
instruction rests within the district court’s discretion, and this court will not reverse absent
a clear abuse of that discretion. Youngquist v. W. Nat. Mut. Ins. Co., 716 N.W.2d 383, 385
(Minn. App. 2006). An error in the jury instructions does not necessitate a new trial unless
the error was prejudicial. George v. Estate of Baker, 724 N.W.2d 1, 10 (Minn. 2006).
District courts have discretion to provide additional jury instructions after the jury
poses a question to the court. Minn. R. Civ. P. 51.02(c). But, a district court may not give
a jury instruction that tends to unduly emphasize one side of an issue. Weiby v. Wente, 264
N.W.2d 624, 628 (Minn. 1978). Further, a district court must not, “in charging the jury,
single out and give undue prom inence and emphasis to partic ular items of evidence, or
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circumstances, favorable to one of the parties only.” Kincaid v. Jungkunz, 109 Minn. 400,
402, 123 N.W. 1082, 1083 (1910).
Here, the jury asked the district court: (1) “Do we base our decision solely on
evidence or the reasonability of the situation from the evidence” and (2) “[i]f there are gaps
in the facts, can a jury lawfu lly say yes?” The district cour t responded, “You are to base
your decision on the evidence, and reasonabl e inferences that you can draw from the
evidence.”
Raden argues that by underlining the word “and,” the district court effectively
instructed the jury to make further inferences and to speculate, especially because the jury
indicated it thought there were gaps in the facts. We disagree.
While the better practice is to not underline or emphasize words in a jury instruction,
the district court did not abuse its discretion, and its response correctly stated the law. A
jury may base its decision both on the eviden ce and all reasonable inferences that can be
drawn from the evidence. N. Petrochemical Co. v. U.S. Fire Ins. Co. , 277 N.W.2d 408,
410-11 (Minn. 1979); Zaske v. Lee , 651 N.W.2d 527, 533 (Minn. App. 2002), review
denied (Minn. Dec. 17, 2002); 4 Minnesota Practice, CIVJIG 12.10 (2016). The district
court’s answer to the jury’s questions did not unduly emphasize one side of an issue
because the use of the underlined word “and” merely stressed that the jury was to consider
both the evidence and also any reasonable in ferences from that ev idence. Respondent
presented direct and circumstan tial evidence at trial regardin g the timing of the seizure,
evidence that required the jury to make further inferences, justifying the instruction.
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Unlike the detailed and sugges tive jury instructions in Kincaid, 109 Minn. at 401-
02, 123 N.W. at 1082-83, the district court’ s underlining of the word “and” did not give
undue prominence to items of ev idence or circumstances in respondent’s favor. In its
denial of Raden’s motion for a new trial, the district court stated that its purpose in giving
the instruction was not to emphasize either clause of its answer but to ensure that the jury
was aware it could consider both the evidence and reasonable inferences from the evidence.
The district court did not abuse its discre tion because the jury indicated, through its
questions, that it thought it could only rely on either the evidence or inferences drawn from
the evidence.
Finally, even if error, the district cour t’s additional instruction did not prejudice
Raden because, based on the entire evidence admitted at trial, the jury could have
reasonably made inferences in favor of Raden, for exam ple by finding that Tvedt was
texting while driving.
The district court did not abuse its di scretion in issuing its additional jury
instructions because the instructions correctly stated the law and did not unduly emphasize
evidence or an issue favorable to one party over another.
Affirmed.