Alber v. Rodin, et al.

Summary

The North Dakota Supreme Court affirmed a judgment dismissing Larry Alber’s negligence action after a jury found Lyle Rodin and Darin Rodin, doing business as D&L Farms, were not negligent. The court held Alber could not challenge the weight of the evidence for the first time on appeal without a post-trial motion, found no reversible error in the district court’s jury instructions, and upheld the award of expert witness fees.

Holdings

1. A losing party may not raise for the first time on appeal, after a civil jury trial, that the verdict was contrary to the greater weight of the evidence. The party must first move in the district court for judgment as a matter of law under N.D.R.Civ.P. 50 or for a new trial under N.D.R.Civ.P. 59.
2. Jury instructions are reviewed as a whole. A trial court need not give a requested instruction in the specific language proposed when the substance is fully and fairly covered by another instruction, and an instructional error is reversible only if it is prejudicial.
3. The district court did not abuse its discretion by awarding $50,000 in expert witness fees for the defendants' toxicology expert after reducing the requested amount.
4. The American Rule did not bar the award of expert witness fees because N.D.C.C. § 28-26-06(5) specifically authorizes the district court to award reasonable expert fees and actual expenses.

Questions Presented

1. Whether Alber could challenge on appeal the jury's verdict as contrary to the greater weight of the evidence without first moving in the district court for judgment as a matter of law or a new trial.
2. Whether the district court committed reversible error by refusing Alber's proposed duty-of-care, premises-liability, and federal-regulation jury instructions.
3. Whether the district court abused its discretion by awarding the defendants expert witness fees for their toxicology expert.
4. Whether the award of expert witness fees violated the American Rule.

Disposition

affirmed