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Fatima Kamara, Individually and As Parent and Natural Guardian of v. Shante Evon Sutton

April 22, 2013

FATIMA KAMARA, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF ABDUL KAMARA, APPELLANT,
v.
SHANTE EVON SUTTON, ET AL., RESPONDENTS.



Ramsey County District Court File No. 62-CV-10-10727

The opinion of the court was delivered by: Hooten, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

Considered and decided by Hooten, Presiding Judge; Cleary, Judge; and Smith, Judge.

UNPUBLISHED OPINION

HOOTEN, Judge

Appellant challenges the district court's decision to deny her motion for a new trial, arguing that the jury's verdict is irreconcilable with the evidence, that a critical component of respondent's case was based on inadmissible hearsay, and that the district court failed to instruct the jury on the effect of the presence of children on the duty of reasonable care. Because we do not agree that the verdict is irreconcilable with the evidence, and because appellant's other assertions are procedurally barred and without merit, we affirm.

FACTS

At about 5:30 p.m. on April 30, 2009, an accident occurred at the intersection of Upper Afton Road and Cutler Road in Saint Paul. Cutler Road extends north from a "T" intersection with Upper Afton Road, which runs east-west. Respondent Shante Sutton, who was 16 years old and had a learner's permit at the time, was driving westbound on Upper Afton Road when her vehicle hit Abdul Kamara at or near the intersection of Cutler Road and Upper Afton Road. Just prior to the accident, Abdul, who was eight years old at the time, entered the westbound lane of Upper Afton Road on foot, heading south toward his school, which is located on the south side of Upper Afton Road. As a result of Abdul's personal injuries from the accident, Abdul's mother, appellant Fatima Kamara, commenced a negligence action against respondent for damages. The parties, with the approval of the district court, agreed to bifurcate the trial and try the issue of liability first.

Abdul, who was 11 years old and in fifth grade at the time of the trial, testified that, to get to the school, he "crossed, like, the streets, so I can go through the crosswalk. Then, I looked left and right, like, I saw one car, it was, like, far, far away, so I started walking. Then, it started coming closer. Then, I started, like, running." Abdul testified that he typically used the crosswalk to get to the school from a family friend's house. On this occasion, Abdul testified that, prior to the accident, he only saw one car parked on Upper Afton Road, which was near the northwest corner of the intersection. Abdul stated that, when the accident occurred, he was in the crosswalk connecting the northwest corner with the south side of Upper Afton Road.

In contrast, respondent testified that there were several cars parked along Upper Afton Road, and that there was no crossing guard or children in the crosswalk at the intersection. Respondent testified that she was going under the posted 30-mile-per-hour speed limit because she was a beginning driver and was focused on staying in her lane and away from the cars parked on the right side of the road. Respondent testified that she was looking straight ahead, and that, "[a]ll of a sudden, a boy ran through two parked cars." She explained that, "before that happened[,] my Grandpa yelled 'Stop', which, like, scared me, so I hit the brakes. And then by that time, I didn't stop quick enough, so he hit my side, by the headlight, and then, he went to the east lane, diagonally from me." Respondent indicated that Abdul was not in the crosswalk at the intersection, but that he was slightly west of the northwest corner of the intersection. On cross-examination, respondent testified that she did not see Abdul come from between the cars, but that she was confident that that was where he came from because her grandfather saw him come from between the cars and because "there's nowhere else he could have came through."

In addition to the parties, the jury heard testimony from the first police officer to respond to the scene. The officer indicated that when he and his partner arrived, a crowd of people, including respondent, had gathered around Abdul as he lay on the street. The officer testified that there was either a baseball or soccer game taking place on the recreational fields next to the school and that there were vehicles parked on both sides of the road. The officer stated that he spoke to respondent and her grandfather, who, he believed, identified the two cars Abdul came from and who told him that they did not have time to stop before the impact. On cross-examination, the officer indicated that he did not speak to Abdul because none of the information he had received from the witnesses at the scene was conflicting. Later in the officer's testimony, appellant's attorney and the officer had the following exchange:

Q [Appellant's Attorney]: I'm asking you the question that if-if [respondent] told you that she saw the child in front of her car and could not stop in time and hit the child, in your police investigative experience, would she have seen the child coming from in between ...


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