Melissa Regouski, as court-appointed Guardian and Conservator for Morgan Moeller, Ward and Protected Person, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0197

Melissa Regouski, as court-appointed Guardian and
Conservator for Morgan Moeller, Ward and Protected Person,
Appellant,

vs.

Noel Zander, et al.,
Respondents,

John Charles Bruns, et al.,
Respondents,

CNH Industrial America LLC, a/k/a CASE IH,
Defendant.

Filed August 12, 2019
Affirmed; motion denied
Connolly, Judge

Wright County District Court
File No. 86-CV-15-2832

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, Minneapolis, Minnesota; and

Stephen S. Eckman, Eckman, Strandness & Egan, P.A., Wayzata, Minnesota (for
appellant)

Kevin F. Gray, Troy A. Poetz, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd.,
St. Cloud, Minnesota (for respondents Noel Zander, Karla Zander, and Elm Grove
Trucking, LLC)

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Rolf E. Sonnesyn, James C. Kovacs, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis,
Minnesota (for respondents John Bruns, Diane Bruns, Dustin Zander, and Elm Grove Land,
LLC)

Considered and decided by Slieter, Presiding Judge; Halbrooks, Judge; and
Connolly, Judge.

U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the district court’s denial of her motions for judgment as a
matter of law (JMOL) and a new trial, arguing that the district court erred when it found
sufficient evidence to support the jury’s fault allocation in an automobile -tractor collision
and when it co ncluded that there were no evidentiary errors justifying a new trial.
Appellant also argues that the district court erred as a matter of law when it determined that
respondent farmers were not engaged in a joint enterprise. Because there is sufficient
evidence to support the jury’s verdict and there are no evidentiary errors warranting a new
trial, we affirm.
FACTS
In September 2014, Morgan Moeller was driving with his brother in the dark on
Highway 106 in Wright County when Morgan hit a plow being pulled behind a tractor
driven by respondent Noel Zander, which resulted in a head on collision that caused severe
injuries to Moeller . Appellant Melissa Regouski, as court -appointed Guardian and
Conservator for Morgan Moeller, filed a complaint against Noel Za nder alleging that he

3
acted negligently in the operation of the tractor and plow, causing the motor vehicle crash.
Noel Zander denied liability for the accident and asserted that it was caused or contributed
to by the negligence of Moeller.
Appellant also alleged that respondents John Bruns, Diane Bruns, Dustin Zande r,
Karla Zander, Elm Grove Land LLC (EGL) and Elm Grove Trucking, LLC (EGT) were
vicariously liable for the accident because they were engaged in a joint enterprise or joint
venture with Noel Z ander. Appellant , additionally, alleged product s-liability claim s
against CNH Industrial America, LLC (Case IH), the manufacturer of the tractor that Noel
Zander was driving. Respondents Noel Zander, John Bruns, Diane Bruns, Dustin Zander,
Karla Zander, EGT and EGL brought cross -claims against Case IH for contribution and
indemnity.
The district court bifurcated the case relating to the issues of joint venture and joint
enterprise at appellant’s request and held a court trial in November and December 201 7.
In its March 16, 2018 order, t he court determined that John B runs, Diane Bruns, Dustin
Zander, Karla Zander, EGL, EGT and Noel Zander were not engaged in a joint venture or
joint enterprise. Appellant’s products-liability claims with Case IH were settled on a
Pierringer basis prior to the negligence trial.
At the negligence trial, Noel Zander testified that the plow trailing his tractor was
in a full, open position. He stated that he had the plow in “field mode” rather than
“transport mode,” which meant the plow extended into Moeller’s lane of traffic between
three and eight feet. Zander also stated that he had chosen to drive with his field lights on
and that he knew he could not dim his high beam. Testimony also established that Zander’s

4
tractor was visible to Moeller’s car after Moeller turned on to Highway 106. Moeller’s
brother testified that he noticed the headlights and understood they were being emitted
from a “bigger truck vehicle.” He stated that the lights were “very bright” and “blinding.”
Despite the blinding lights, Moeller’s brother testified that he did not see Moeller turn the
steering wheel prior to impact. He also stated that he did not feel a sensation that Moeller
applied the brakes.
Both appellant and Zander elicited expert testimony. Appellant’s expert, Dr. Alan
Lewis, testified that the tractor lights would be so blinding that Moeller would have been
unable to see any indication of the plow extended into his lane. Dr. Lewis performed a test
as to whether the eye would be blinded from approximately 81 feet away. In order to
reach his conclusion, Dr. Lewis extrapolated his testing to determine that Moeller could
not have seen the plow at 100 and 200 feet due to the blinding glare.
Zander’s expert, Daniel Lofgren, testified that when Moeller’s car crested the last
hill before the impact , he was 354 feet from the point of eventual impact. Mr. Lofgren
opined that based on his analysis, if Moeller would have stopped or moved three feet to the
right the accident would have been avoided. Additionally, he testified that at one point
while cresting the hill, Moeller would not have been in the line of sight of the tractor’s
headlights.
At the close of trial, the jury returned a verdict finding Moeller to have been 55% at
fault, Zander to have been 45% at fault, an d assigned no fault to Case IH. Case IH had
been placed on the special -verdict form over appellant’s objection. Appellant moved for
JMOL. Appellant argued that no evidence wa s admitted from which a jury could

5
reasonably conclude that Moeller operated his car in a negligent manner or that there was
any negligence on his part that caused the crash.
Appellant also moved for a new trial on liability, arguing that the district court made
erroneous and prejudicial evidentiary determinations. Specifically, appellant argued that
the district court erred in admitting evidence of “zig zag” rolling papers and a pipe smelling
of illicit substances found in the car that Moeller was driv ing after the crash, admitting
evidence of Moeller’s prior history of drug and alcohol use, admitting evidence of drug
metabolites found in his post -accident urine sample, admitting evidence relating to the
settled products-liability suit with Case IH, by including Case IH on the special -verdict
form, and by permitting testimony from Zander’s expert, Daniel Lofgren.
The district court denied appellant’s motion for JMOL , concluding that there was
sufficient evidence presented to the jury for it to determine that Moeller could have avoided
the accident with due care. The district court also denied appellant’s motion for a new trial,
concluding that there were no evidentiary errors that prejudiced the outcome of the trial.
Appellant argues that the district court erred in denying her motions for JMOL and
a new trial. Appellant also argues that the district court erred as a matter of law when it
concluded that no joint enterprise existed with the dismissed defendants in the bifurcated
court trial.
D E C I S I O N
I. Motion for JMOL
This court reviews a motion for JMOL de novo. Daly v. McFarland, 812 N.W.2d
113, 119 (Minn. 2012). Rule 50.02 permits the district court to enter JMOL after “a party

6
has been fully heard on an issue and there is no legally suffici ent evidentiary basis for a
reasonable jury to find for the party on that issue.” When this court reviews the denial of
a JMOL it must consider all the evidence presented, both that supporting the verdict and
that supporting the motion. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983). “JMOL
is inappropriate if jurors could differ on the conclusions to be drawn from the record” and
“we review the evidence in the light most favorable to the prevailing party,” which in this
case is Zander. Daly, 812 N.W.2d at 119.
The apportionment of causal negligence is a question for the jury. Riley v. Lake ,
203 N.W.2d 331, 340 (Minn. 1972). Thus, in a negligence action, we will not overturn a
jury’s verdict where there is evidence of both parties ’ fault. Id. Therefore, the question
before this court is whether there is evidence from which a jury could place causal fault on
Moeller.
Appellant argues that JMOL should have been granted because there was no
evidence presented to the jury indicating that Moeller ne gligently operated his vehicle or
was a cause of the accident. However, drivers have a duty to operate motor vehicles with
due care, and this includes a duty to become aware of and avoid potential hazards. For
example, Minnesota statutes provide that individuals driving on highways are “responsible
for becoming and remaining aware of the actual and potential hazards then existing on the
highway and must use due care in operating a vehicle” and “in every event speed shall be
so restricted as may be necessary to avoid colliding with any . . . vehicle,” which requires
driving “at an appropriate reduced speed . . . when approaching a hill crest, . . . and when
special hazards exist with . . . other traffic.” Minn. Stat. § 169.14, subds. 1, 3(a) (2018).

7
Consideration of a driver’s duty to utilize due care to avoid potential hazards
supports the jury’s verdict. There was evidence presented that appellant could have
become aware of the potential hazard created by Zander and that he could have avoided
the hazard with due care. Specifically, accident reconstructionist Daniel Lofgren testified
that Moeller could have avoided the accident had he “slowed down to a reasonable speed.”
Lofgren testified that Moeller
. . . could have stopped, um, upon seeing the bright white
lights when he came over the crest the last time, he also could
have slowed to the point there was —there was five feet of
room of gravel shoulder and asphalt and he only needed to
move to the right three feet. So if you’re slowed down
appropriately, you can maneuver to the right and use the gravel
that’s available there.
Moreover, there was no evidence at trial that Moeller attempted to avoid the
accident. To the contrary, Moeller’s brother testified that prior to the accident he did not
observe or feel Moeller turn the wheel or apply the brakes. There were no tire marks from
Moeller’s car before impact which would indicate braking, swerving, or any other quick
maneuvers. And no evidence was presented that Moeller slowed down when he
approached the top of the hill.
Consequently, because there is evidence in the record from which a jury could
conclude that Moeller failed to exercise due care in approaching a potential hazard , and
there is evidence that with the exercise of due care he could have perceived and avoided it,
the district court did not err when it denied appellant’s motion for JMOL.

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II. Motion for a New Trial
Appellant made a post trial motion, in the alternative, for a new trial , arguing that
multiple evidentiary err ors prejudiced the outcome of the trial . The district court is
afforded broad discretion when ruling on evidentiary matters and will not be reversed
absent an abuse of that discretion. Peterson v. BASF Corp., 711 N.W.2d 470, 482 (Minn.
2006). Even if the district court makes an improper evidentiary determination, a new trial
will only be granted if the improper evidentiary ruling prejudiced the complaining party.
State v. Thao, 875 N.W.2d 834, 839 (Minn. 2016) . “An evidentiary error is prejudicial if
it might reasonably have influenced the jury and changed the result of the trial.” George
v. Estate of Baker, 724 N.W.2d 1, 9 (Minn. 2006).1
Drug-Related Evidence
Evidence that Moeller may have been intoxicated at the time of the crash and other
drug-related evidence was admitted at trial over appellant’s objection . Specifically, the
district court admitted (1) evidence of Moeller’s prior drug use, (2) evidence of “Zig Zag”
rolling papers and a pipe containing marijuana residue that were found in Moe ller’s car
after the accident , and (3) evidence of T HH metabolites and benzodiazepine found in
Moeller’s post -accident urine sample. The district court reasoned that the drug -related
evidence was relevant circumstantial evidence that Moeller was potentially impaired at the

1 Respondents filed a motion to strike portions of appellant’s reply brief that raise issues
not presented in appellant’s principal brief. The portion of appellant’s reply brief that
respondents ask us to strike relate s to whether this court should grant a new trial o n the
allocation of fault. Because we have concluded that based on the evidence this decision is
left to the jury, we deny respondents’ motion as moot.

9
time of the accident. See VanHercke v. Eastvold, 405 N.W.2d 902, 906 (Minn. App. 1987)
(evidence of a motorist’s potential intoxication at the time of an accident is relevant to both
causation and comparative fault).
Appellant asserts that the district court should have required Zander to produce
direct evidence of intoxication before he could make an argument to the jury that Moeller
was potentially impaired at the time of the accident. Specifically, appellant argues that the
presence of THC and benzodiazepine metabolites in Moeller’s post -accident urinalysis
does not correlate to intoxication at the time of the crash , and therefore, expert testimony
was required to explain how the controlled substances found in Moeller’s system equate to
intoxication at the time of the crash. However, as indicated by respondents, appellant
makes these assertions without citing to any scientific authority or expert testimo ny in the
record. Appellant also does not cite to any legal authority that would have required Zander
to produce expert testimony on the issue before arguing that Moeller was potentially
intoxicated.2
Appellant cites two cases for the proposition that the evidence of potential
intoxication should have been excluded: Mueller v. Sigmond , 486 N.W.2d 841, 84 3-44
(Minn. App. 1992) ( this court excluded evidence of an accident victim ’s potential
intoxication but stated that “[h] ad Sigmond shown that M ueller’s drinking contributed to
cause” the accident, the probatory nature of the evidence would not have been substantially
outweighed by the risk of prejudice, and would have been admissible), and Hastings v.

2 Appellant’s medical expert testified that T HC and benzodiazepine could impair one ’s
driving ability.

10
United Pacific Ins. Co., 396 N.W.2d 682, 684 (Minn. App. 1986) (summary judgment was
proper where th ere was no evidence that the driver’ s intoxication caused accident).
However, in Mueller and Hastings the evidence of potential intoxication was excluded
because there was no evidence that the victims of the accidents were contributorily
negligent. But here, there was evidence that Moeller failed to exercise due care when
approaching a potential hazard . Additionally, this court in Mueller evaluated the district
court’s decision to admit evidence of potential intoxication under Minn. R. Evid. 403.
The district court found that the drug-related evidence’s probative value was not
substantially outweighed by the danger of unfair prejudice. “ Such exclusion is within the
trial court’s discretion.” Mueller, 486 N.W.2d at 844. The evidence here permitted the
inference that Moeller had time to observe the potential hazard and avoid it, but did not.
See id. at 844-45. The district court did not abuse its discretion by admitting the evidence.
Finally, even if the district court abused its discretion by admitting the drug-related
evidence, appellant cannot demonstrate the requisite prejudice required for the grant of a
new trial. The record contains sufficient evidence of Moeller’s fault independent of any
evidence that may have shown Moeller was intoxicated at the time of the accident.
Moreover, the district court crafted an instruction that specifically addressed the concern
that the jury would use the drug -related evidence for improper purposes. The instructi on
stated:
If a person was intoxicated, that does not necessarily
prove he or she was negligent. However, an intoxicated person
is required to use the same care required of a sober person. The
mere fact that Plaintiff had THC metabolite in his blood does

11
not necessarily mean that he was under the influence and does
not in and of itself constitute contributory negligence.3

(Emphasis added.)
This instruction told the jury that the THC found in Moeller’s system did not mean
that he was under the influence of the drug and that it did not by itself constitute
contributory negligence. We assume that the jury followed the court’s instructions. State
v. Vang, 774 N.W.2d 566, 578 (Minn. 200 9). Consequently, because the jury could have
reached its verdict based on the other evidence, and because the jury instruction lessened
any prejudicial effect of the drug evidence, appellant cannot establish the requisite
prejudice, even if the district court erred.
Expert Testimony
Appellant challenges the admission of the testimony from Zander’s expert witness,
Daniel Lofgren. Appellant asserts that Lofgren’s testimony “relied heavily” upon a
photograph taken by Case IH’s expert “known to be lacking in foundational reli ability.”
However, respondents argue that Lofgren did not rely upon the challenged photograph
taken by Case IH’s expert. Respondents state that Lofgren laid foundation for his opinion
and he described the materials and investigations he relied upon, and in doing so, he did
not list the photograph.
As respondents articulate, appellant fails to cite to the record where she claims
Lofgren relied upon the alleged photograph and a review of his testimony does not support
her claim. Moreover, appellant’s reply brief does not address respondents’ claim that there

3 The district court meant to say urine instead of blood.

12
is nothing in the record to suggest that Lofgren relied on the photograph. Without evidence
in the record showing that Lofgren relied on the photograp h at trial, it cannot be said that
the district court abused its discretion by permitting Lofgren to testify.
Errors concerning the settled claim against Case IH
Shortly before trial, Case IH was dismissed from the lawsuit pursuant to a
Pierringer settlement agreement it entered into with appellant. However, the district court,
over appellant’s objection, permitted Zander to introduce evidence of Case IH’s fault and
to place Case IH on the special-verdict form. Specifically, the district court admitted Case
IH’s interrogatories and appellant ’s answers, as well as a redacted expert report prepared
by appellant’s product s-liability expert, who was absent at trial. The district court
determined that the evidence related to Case IH’s fault warranted placing Case IH on the
special-verdict form.
Even if the district court erred by admitting this evidence and by submitting Case
IH’s fault to the jury, appellant cannot demonstrate the requisite prejudice for a new trial.
This is because despite the admission of evidence relating to Case IH, the jury returned a
verdict that found Case IH zero percent at fault. Thus, the result of the case would have
been the same, with or without the evidence —that is Case IH would still have had zero
percent of the liability placed on it.
Appellant argues that the evidence, particularly the redacted expert report, did
prejudice the trial because Zander used the evidence in closing argument where he asked
the jury to find that Zander was not negligent. However, the jury rejected any suggestion
that Zander was not negligent with regard to his operation of the tractor and place d

13
significant fault on him . Consequentl y, because the evidence relating to the settled
products-liability claim with Case IH and Case IH’s presence on the special-verdict form
did not prejudice appellant, the district court did not err by denying appellant’s motion for
a new trial.
Because we have concluded that the district court did not err by denying appellant’s
motions for JMOL and a new trial, appellant’s remaining argument relating to the liability
of the other respondents for their alleged participation in a joint enterprise is moot and we
decline to address it.
Affirmed; motion denied.