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Wajda v. Kingsbury

September 10, 2002

LARRY WAJDA, ET AL., RESPONDENTS,
v.
JONATHAN KINGSBURY, ET AL., APPELLANTS.



Hennepin County District Court File No. PI002845

Considered and decided by Stoneburner Presiding Judge, Toussaint, Chief Judge, and Schumacher Judge.

SYLLABUS BY THE COURT

When evidence critical to a party's claim is under the exclusive control of an adverse party and the evidence is destroyed, whether accidentally or otherwise, the district court has discretion to permit the jury to make an unfavorable inference from that fact.

The opinion of the court was delivered by: Toussaint, Chief Judge*fn1

Affirmed

OPINION

This action arose out of a collision between a police squad car and a tow truck. An issue at trial was whether the squad car's siren had been activated. The jury returned a verdict for the tow truck operator, and the district court denied appellants' motion for new trial. Appellants contend that the district court erroneously instructed the jury that it could make an adverse inference from appellants' failure to produce a tape that might have corroborated evidence as to the siren because (1) no evidence that has been shown to exist has been destroyed; (2) there was no finding that the tape, if it existed, was critical to respondents' case; and (3) respondents did not suffer prejudice because they were not placed at an evidentiary disadvantage. Because the district court did not abuse its discretion, we affirm.

FACTS

This action arose out of a May 1997 collision between a police squad car and a tow truck, resulting in personal injuries and property damage. Appellant Jonathon Kingsbury, a Minneapolis police officer, was driving a squad car, accompanied by Officer Gary Nelson. Terrance Wojtowicz was driving the tow truck, owned by respondents Larry Wajda and L & L Towing.*fn2 In 1999, Officer Nelson and his wife brought a personal injury lawsuit against Wojtowicz and Wrecker Services for injuries sustained in the collision. Wojtowicz and Wrecker Services brought a third-party action against appellant City of Minneapolis, seeking contribution for any damages awarded to the Nelsons, and the city counterclaimed for damages to the squad car and for workers' compensation benefits paid to Officer Nelson. L & L Towing and Wajda filed a complaint against the city and Officer Kingsbury for property damage to the tow truck, alleging negligence by Kingsbury. The district court consolidated the cases.

The city moved for summary judgment, claiming official immunity for itself and Officer Kingsbury, and the district court granted the city's motion. This court reversed the district court's grant of summary judgment and remanded for trial. Nelson v. Wrecker Serv., Inc., 622 N.W.2d 399 (Minn. App. 2001). The case proceeded to trial, where the only claim remaining for trial was Wajda's claim against the city and Officer Kingsbury for property damages and lost income.

At trial, a primary issue was whether the squad car's siren had been activated. Wojtowicz testified that he was traveling eastbound on 10th Avenue toward the intersection of 10th Avenue and Washington, with the truck windows open, and that the traffic light was green as he entered the intersection. Wojtowicz stated that he noticed a car to his right, facing north, that was stopped inside the northbound lane on Washington. He noticed overhead lights when the squad car was "almost hitting" him. Wojtowicz did not hear a siren and was never cited for any traffic violations in connection with the incident.

Officer Kingsbury testified that after receiving a radio dispatch that a knife fight was taking place nearby, the officers responded to the call, activating the squad car's red lights and siren. Kingsbury stated that he traveled northbound on Washington Avenue, and as he approached the intersection of Washington and 10th Avenues, he noticed a car stopped at the intersection in the left-hand lane. Kingsbury also testified that the light turned green, he changed lanes to go around the right side of the stopped car, entered the intersection, and "[a]ll of a sudden there was a collision." Kingsbury testified that he had activated the siren. Officer Nelson did not testify at trial, but portions of his deposition were read to the jury. Nelson testified that the squad car's emergency lights and siren were activated when the officers proceeded through the intersection. Nelson stated that he observed the traffic light change from red to green when the squad car was about a block to one-and-one-half blocks from the intersection.

The driver and passenger of the vehicle that was stopped at the light on Washington Avenue testified at trial. The driver testified that he stopped at the light because it had just turned red, he saw emergency lights approach from behind, and he did not hear a siren. The passenger testified that he had his window cracked and first saw the squad car as it passed them, and that "there was definitely no siren there at all."

The parties do not dispute that the Minneapolis Emergency Communications Center records radio transmissions between officers in squad cars and the dispatch center and that the city's policy is to reuse or tape over the tapes after 60 days. The tapes only record what is broadcast by radio to and from police officers. Kingsbury agreed that it was "very possible" that Nelson spoke to dispatch again between the time of the initial call and the time they reached the intersection where the accident occurred. Kingsbury agreed that if Nelson spoke with dispatch during the period and a tape were made of the conversation, a ...


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