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Hamilton v. Oppen12/4/2002
stantially outweighed by the danger of unfair prejudice. See State v. Klein, 1999 ND 76, 5, 593 N.W.2d 325. In his appellate brief, Hamilton candidly describes his injured leg as resembling "hamburger." In granting the motion in limine, the trial court reasoned:
The argument that the photographs illustrate pain and suffering has some merit, however, Mr. Hamilton and possible others can testify to the pain and suffering that he has experienced since the accident and at the time of the accident. It is my opinion that the photographs do not depict pain and suffering. They depict blood and gore which is highly prejudicial to the defendant in this case.
We conclude the trial court did not abuse its discretion in ruling the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and in excluding the photographs from evidence.
D.
Hamilton argues the evidence does not support the jury verdict. In reviewing a jury's findings, we view the evidence in the light most favorable to the verdict and determine only if substantial evidence supports it. Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, 37, 643 N.W.2d 29. There is substantial evidence in the record to support the jury's finding that Hamilton was more at fault than Oppen for his injury .
III.
The judgment and order are affirmed.
Carol Ronning Kapsner
Dale V. Sandstrom
William A. Neumann
Maring, Justice, concurring in the result.
I respectfully concur in the result.
I believe the trial court abused its discretion in refusing to allow even one of the five photographs offered of Hamilton's injuries. The majority correctly states that the photographs of Hamilton's injured leg were relevant to the issue of pain and suffering. Compensation for pain and suffering is an element of non-economic damages which may be awarded by a trier of fact under N.D.C.C. § 32-03.2-04. In Albrecht v. Metro Area Ambulance, our Court stated:
"The plaintiff is entitled to recover for all forms of suffering proximately caused by tortious injury , including future suffering. The pain for which recovery is allowed includes virtually any form of conscious suffering, both emotional and physical. . . . Expert testimony can address pain, but frequently the physical injury itself and the kind of medical attention needed, permit or require an inference that the plaintiff suffered physically or emotionally." 2001 ND 61, 14, 623 N.W.2d 367 (quoting 2 Dan B. Dobbs, The Law of Torts, 1050-51 (2001)).
We have recognized that the power to exclude evidence under N.D.R.Ev. 403 should be exercised sparingly. State v. Randall, 2002 ND 16, 15, 639 N.W.2d 439. Our Court has stated:
In determining whether to exclude evidence under Rule 403, courts should "`give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.'" See id. [State v. Zimmerman, 524 N.W.2d 111, 115 (N.D. 1994)] (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence § 403 , pp. 403-49, 403-51 (1994)). "Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge." Id. Therefore, the burden is on the objecting party to show that relevant evidence should be excluded under Rule 403. Randall, at 15 (citation omitted).
"Prejudice alone is not sufficient to war
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