Neither counsel alluded to the issue of superseding cause in the final argument which followed. The subject was not raised by the court or either counsel the next morning, however, and no ruling was made on the record.
#WURST CLIENT SAYS FATAL EXCEPTION ERROR TRIAL#
In an off-the-record discussion at that time, the trial court indicated its intention to grant that request, but stated that it would make a final decision on the matter the next morning and would advise counsel if it was not to be given. We are not asked to determine whether, as a matter of substance, the instruction was appropriate, the sole issue being whether a new trial was warranted because of procedural error in giving the instruction.Īt the close of testimony, defendant had submitted a request for the superseding cause instruction, to which plaintiff objected. The finding that defendant's negligence was not a direct cause was made in the context of a superseding cause instruction, 2 presumably based on the intervention of a stranger responding to decedent's cry for help.
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The jury found that Bonnie was negligent and that her negligence was the cause of her death. The jury found defendant city negligent on evidence that the defendant's lifeguard was not at his post of duty but it found that the defendant's negligence was not a direct cause of the accident. Plaintiff, as trustee for the heirs and next of kin of Bonnie Forsythe, decedent, brought a wrongful death action against the city of Thief River Falls for the drowning of Bonnie while swimming at defendant's municipal beach.
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A new trial was ordered, on motion of plaintiff, because the trial court had not, in compliance with Rule 51, Rules of Civil Procedure, 1 unequivocally informed counsel of its intention to instruct the jury on superseding cause, an omission which the trial court concluded was prejudicial error.