Fretts v. GT Advanced Technologies Corporation

Filing 61

ORDER granting in part and denying in part 50 Motions in Limine. Signed by Judge Donald W. Molloy on 3/5/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

JENNIE M. FRETTS,

CV 11-160-M-DWM

Plaintiff,
vs.

ORDER

GT ADVANCED TECHNOLOGIES
CORPORATION, formerly known as
GT SOLAR INTERNATIONAL,
INC., and MICHAEL CHALLEEN,
Defendants.

Before the Court are Plaintiff’s motions in limine. (Doc. 50.) Plaintiff moves
the Court to exclude evidence or reference to collateral source payments and
contributory negligence.
Neither Defendant objects to Plaintiff’s motion to exclude evidence at trial
of prior payments received, although both Defendants reserve the right to offer
such evidence to offset any jury award. Evidence of collateral source payment is
prohibited at trial; the “jury shall determine its award without consideration of any
collateral sources,” and only after the jury makes its determination, the trial judge
may reduce the award “at a hearing and upon a separate submission of evidence
related to the existence and amount of collateral sources.” Mont. Code Ann.

§ 27–1–308(3). Accordingly, all parties are ordered to refrain from introducing
evidence regarding collateral source payments or benefits paid or payable to
Plaintiff.
Defendant Challeen requests an order that the amount of any judgment
rendered will be reduced by money previously paid to Plaintiff. The Court cannot
enter such an order at this time. Offsets depend on the jury determining the
Plaintiff is entitled to an award in the first place, and as to collateral source
payments, the Plaintiff must be fully compensated. Then, Defendants must move
the Court for an adjustment to the award. The Court will then make the following
determinations at a separate hearing: which payments are from tortfeasors and
which are from collateral sources; whether the collateral source payments have a
subrogation right; and whether the jury award is adequately specific to make
offsets for the collateral source payments.
There is no Montana law denying Defendants the affirmative defense of
comparative negligence. Plaintiff contends evidence of comparative negligence is
of no consequence in determining the action because she had no legal duty.
Plaintiff asks the Court to conclude that she could not have been comparatively
negligent because she had no duty to act in a particular manner as a pedestrian.
The existence of a legal duty presents a question of law to be determined by
the Court. Gatlin-Johnsone ex rel Gatlin v. City of Miles City, 291 P.3d 1129,

1132 (Mont. 2012). Plaintiff relies on the pedestrian traffic statutes to establish
that she had no legal duty. Yet, both statute and Montana case law impose a legal
duty on pedestrians. Mont. Code Ann. § 61–8–501 (“A pedestrian shall obey the
instructions of any traffic control device . . . .”); Mont. Code Ann. § 61–8–502 (“a
pedestrian may not suddenly leave a curb or other place of safety and walk or run
into the path of a vehicle”); Oberson v. U.S., 311 F. Supp. 2d 917, 960 (D. Mont.
2004) (“Every person has a duty to exercise reasonable care to prevent injury to
himself.” (citing Mont. Code Ann. § 27–1–701)); Hightower v. Alley, 318 P.2d
243, 247 (Mont. 1957) (“A pedestrian and a motorist have equal rights in the use
of a public highway, but a pedestrian must use ordinary care for his own safety.”);
Sorrells v. Ryan, 281 P.2d 1028, 1030 (Mont. 1955) (“Ordinary caution must be
observed by drivers and pedestrians both at and between crossings.”); Webster v.
Mt. Sts. Tel. & Telegraph Co., 89 P.2d 602, 603 (Mont. 1939) (“At a street
crossing a pedestrian need only exercise such reasonable care as the case requires,
for he has the right to assume that a driver will also exercise due care and
approach the crossing with his vehicle under proper control. Both are required to
exercise the degree of care that conditions demand.”). The Court can only
conclude that Plaintiff had a legal duty to act according to the statutory
requirements and with ordinary care. Whether or not Plaintiff breached her duties
under the particular circumstances of the collision is a question of fact for the jury.

Plaintiff’s motion as to contributory negligence is denied subject to renewal at
trial.
In accordance with the foregoing, IT IS ORDERED Plaintiff’s motions in
limine are GRANTED in part and DENIED in part.
DATED this 5th day of March, 2013.