Maryland cycling product liability case shows why a good defense may wear down the plaintiff

Posted: September 24, 2012 | Author: | Filed under: Cycling, Maryland | Tags: , , , , , , , , , , , | Leave a comment

 Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317

Pre-printed release allows most claims to proceed

Basically, a release you buy as a form or from a print shop is not valid and will not get you out of a lawsuit. Releases must be written by an attorney for your business as this bicycle retailer learns in with this decision.

The plaintiff was a 77-year-old man who purchased a bicycle from the retailer, the Sports Authority (TSA). The bicycle was made by Pacific Cycle, Inc., and Dorel Industries, Inc. The brakes on the bicycle were center pull brakes and after riding the bike a half-dozen times the plaintiff used the brakes and fell. He claimed center pull brakes were only for experts, and he was not an expert cyclist. The plaintiff claimed:

Count I that Defendants were negligent, careless, and reckless because TSA failed to provide proper training in the use of high-performance brakes at the point of sale and Pacific Cycle installed brakes designed for experienced riders on a bicycle meant for the general public’s use. In Count II, Plaintiff alleges that Defendants are strictly liable for his injuries because the bicycle was placed in the stream of commerce and sold in a defective and unreasonably dangerous condition.

At the time, the plaintiff bought the bike; he completed a “sales/repair ticket” which included release language and language that stated the plaintiff had been educated in the use of the bike and the brakes. “I have been shown the proper way to operate the shifting, braking and release mechanisms of this bicycle.” The sales/repair ticket was a form used by man bike shops.

The defendant retailer The Sports Authority filed a motion for summary judgment, which led to this appeal. The basis of the appeal was:

(1) the release agreement Plaintiff signed expressly releases TSA from liability, (2) TSA had no duty to train Plaintiff, (3) Maryland law provides a statutory defense to sellers in defective design cases such as this, and (4) Plaintiff’s disregard for the written warnings is an intervening cause of his injury and provides a defense to strict liability.

Summary of the case

Release written poorly

The first argument the court looked at was the issue of the release that was part of the Sales/Repair Ticket. The release only released the retailer and did not release the manufacturers. This allowed the plaintiff to argue the release should not allow the defendant retailer out of the case because their issues were no different from the two other defendants not protected by the release. The court agreed. Although there was nothing wrong with the release, because it did not protect all the defendants, it could not be used for just one defendant.

Arguments to void release under Maryland law

Under Maryland law, a court looks at a release or contract to determine the effect of the release based on the intentions of the parties. This requires a release to be written properly under Maryland law. Here the court did not find the release was written in a way to cover the interpretation the retailer was arguing. The major issue was the language did not protect the other defendants so those claims that were joint against the other defendants and TSA, kept TSA in the lawsuit. If the plaintiff had not named the other defendants, the release would have protected TSA.  Simply put the language of the release did not cover the claims of the plaintiff.

The court also looked at what it took to void a release under Maryland law.

(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and (3) when the transaction involves the public interest.

The issues that void a release are basically the same under Maryland law as in other states. The first one is the acts of the defendant intentionally harmed the plaintiff. No contract protects against intentional acts, and no insurance policy covers intentional acts. If you do something intentionally that injures someone you are going to write a check.  The next two issues are similar to public policy arguments. The first is the plaintiff has no choice but to contract with the defendant and no choice but to take the contract on the terms offered by the defendant. The second is a purer public policy argument where the item offered by the defendant is public interest such as utilities, food or public transportation. Under Maryland law, a public interest that cannot use a release is:

…the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that-are so important to the public good that an exculpatory clause would be “patently offensive,” such that “the common sense of the entire community would . . . pronounce it” invalid.

The court found that the sale of a bicycle did not fall within any of the categories in this case that would void the release.

Failure to name defendants specifically

The next argument is one that has been made several times in releases and bicycle shops. Many bicycle shops purchase pre-printed forms from bicycle companies that include a release. The forms cover rentals, repair checklists, inventory issues, etc. The release does not name the defendant, but just refers to the “bicycle shop.” This argument has been made several times in other cases and someday may succeed. Here it did not, because the court found it was clear enough to the parties that the term bicycle shop referred to TSA in the release. However, as stated above, the release kept the lawsuit going because it only referred to the bicycle shop, not the manufacturers.

Release stated the plaintiff had been educated in how to use the bicycle

The next argument the court reviewed was the statement in the release that said the plaintiff has been shown the “the proper way to operate the shifting, braking and release mechanisms of this bicycle….” The court quickly dismissed the argument that the plaintiff should not be held to this defense because the plaintiff signed the agreement, so he had been instructed.

The court then looked at the plaintiff’s argument that the bicycle shop had failed to train the plaintiff in how to ride the bike and operate the equipment. The court held that there can be no negligence where there is no duty. Bicycle shops have no requirement to train people in how to ride a bike. Remember negligence has for things that must be proven to win a lawsuit. The first is there must be a duty between the plaintiff and the defendant. Here, the shop had no duty to train a buyer in how to ride a bicycle.

Expert Witness not qualified

One interesting issue the court looked at was the plaintiff’s attempt to establish a duty on the part of the retailer to train a buyer using an expert witness. The expert witness testified that there was a duty to train a buyer on how to use and ride a bike. However, the court found the expert witness’s credentials did not show any retail experience that would allow the expert to give that opinion retailer issues. An expert can only provide an opinion on those things he has training, knowledge, education or experience in. Because the expert witness’s resume or CV did not show any retail experience, the court questioned his ability opining about those issues. The court did give the plaintiff two weeks to come back with an additional statement showing that expert did have retail experience.

Maryland “sealed container” defense

The next issue was an argument raised by the defendant retailer, TSA, based on a Maryland statute. The statute is called the “sealed container” defense. The statute says a retailer cannot be held liable under a product’s liability claim for a product that has not been changed by the retailer. The defense is effective if the product is sold in a sealed container not changed or altered by the retailer. Here, however, the court found the bike had been sold out of the box. For the statute to provide a defense the bike would have to have been sold by the store in the original box the bike came to the store in.

The defense also failed because the defendant retailer hired a third party to build the bike.

The basis for the theory behind the statute is a retailer could not have found any defect in the product if they never opened the box the product came in. Courts in product liability claims hold that any person in the chain of sale from the manufacturer to the final seller is liable for a product liability claim because anyone of them could have discovered the defect in the product and prevented the injury to the consumer.

The court withheld its ruling on this issue until a later time because TSA hired the third party to build the bikes as stated above which further confused the defense.

Strict Liability Claim

Strict liability is a claim in product’s liability cases that argues the manufacturer and others in the chain of commerce are liable for placing a dangerous product into the hands of a consumer. Strict liability claims have very few defenses other than the item was not defective and unreasonably dangerous. Under Maryland law, a product is defectively dangerous if:

…if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product’s characteristics….

A strict liability claim can be beaten if the manufacturer can prove that the consumer was warned of the risks. Here the court looked at the owner’s manual about the brakes and found the plaintiff’s strict liability argument did not apply. The manual informed the plaintiff of the risks.

It cannot be said enough, written about enough or argued enough, owner’s manuals are critical and must notify people of the issues, warn consumers of all risks of a product.

Here because the plaintiff failed to adhere to the warnings in the owner’s manual, the strict liability claim was dismissed.

So Now What?

This case was not over after the decision, and it had no other appeals to determine what happened with the case. Probably, the case settled sometime after this appeal was written. However, the case is very informative on the issues of Maryland law and product’s liability issues in general.

Specifically

1.      If you are going to use a release, have a release written that works in your state, for your business, for your legal issues. Make sure your release protects you and everyone else that should be protected. Here the release was written badly. The release escaped the claim of the defendant retailer not being identified but failed to protect the other people in the chain of sale, which allowed the case to continue. Ultimately, the release did not protect the retailer.

You, your suppliers, distributors, manufacturers, bike builders, other riders, and everyone else reasonable connected to the release, sale or event should be protected.

2.    Sell the right product to the right person. This case never would have happened if the plaintiff had purchased a bicycle he understood and knew how to use.

This does not mean you cannot upsell someone or move them into  better products. However moving someone who has not ridden a bike in a while from a coaster brake to hand brakes, requires a little more thinking. If you don’t have the right bike, is it worth the money you are going to make on the sale to make a customer this unhappy.

3.    If you are a manufacturer make sure if you are selling in the US (or North America, for that matter) that your release is written in English and contains are the necessary warnings. Written in English does not mean translated from a foreign language into English, but translated and written in English.

Warning labels have to cover everything. You may not consider them warnings; they may just be educational issues. However, the court will look at that education as a warning label.

Any warning label on the bike or product should also be repeated in the manual.

I strongly suggest that all owners’ manuals be available on your website also. Also in the owner’s manual make sure that the manual instructs the purchaser to refer to the website for changes, updates or new warnings.

4.    Always make sure that every manual, hangtag, sticker, or warning that comes in the box from the manufacturer goes out the door with the product when the bike is sold. The strict liability defense would have failed if the warning label had been left on the shop floor, and the sole issue of the case would have been how much, not if.

5.     If you are a manufacturer, tell your retailers to protect you or better, develop a program where retailers, and you work together from the beginning to beat lawsuits. Make sure the retailer has a good release that protects all parties. Make sure the retailer knows to tell purchases to read the owner’s manual and to go to your website to learn more about the product.

6.    If you are a manufacturer make your website more than just a sales site. It is a place where people can learn how to use your product. (And having a “community” site where other consumers using the product improperly tell your new customers how to use it improperly is not an answer.) Education and information are an effective way to keep customers happy and stop lawsuits.

This lawsuit would have ended if the release had been written properly. Buying a release from a form’s seller or a printing shop is buying trouble, not a defense. Nor is a release a stroke of luck. A well-written  release in 43 states stops lawsuits. (See States that do not Support the Use of a Releasefor the states that do not support a release.)

For more product liability articles see:

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

How not to respond to a product liability claim or How to turn a mess into a legal disaster.

How to fight a Bicycle Product Liability case in New York. One step at a time.

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.

PR Disaster should not be turned into bigger disasters

Sometimes your editorials come true: Even more so when they occurred in the past, and you found it later.

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For additional articles on cycling legal issues see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

PA court upholds release in bicycle race.

Release for training ride at Triathlon training camp stops lawsuit

What do you think? Leave a comment.

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Upky v. Marshall Mountain, Llc, 2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94

Posted: January 17, 2011 | Author: | Filed under: Legal Case, Montana, Ski Area | Tags: , , , , , , , , | Leave a comment

Upky v. Marshall Mountain, Llc, 2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94

CHAD UPKY, Plaintiff, v. MARSHALL MOUNTAIN, LLC, Defendant, and MARSHALL MOUNTAIN, LLC, Third-Party Plaintiff and Appellant, v. BOARD OF MISSOULA, INC. and BOARD OF MISSOULA, LLC, Third-Party Defendants and Appellees.
DA 06-0109
SUPREME COURT OF MONTANA
2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94
May 16, 2007, Submitted on Briefs
March 18, 2008, Decided
April 3, 2008, Released for Publication
PRIOR HISTORY:
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 02-112. Honorable John W. Larson, Presiding Judge.
Upky v. Marshall Mt., 2004 Mont. Dist. LEXIS 3716 (2004)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff accident victim brought a negligence suit against defendant ski area owner, which in turn filed a complaint against third-party defendant ski jump builder for contribution or indemnification. After a jury trial on the third-party complaint, the District Court of the Fourth Judicial District, County of Missoula (Montana), entered judgment in favor of the builder. The owner appealed.
OVERVIEW: After the ski area owner and the accident victim came to a settlement, the ski jump builder was allowed to amend its answer to the owner’s complaint, pursuant to M.R. Civ.P. 15(a), to include a claim that the victim’s negligence, in combination with that of the owner, caused his injuries. The supreme court held that the trial court did not err when it permitted the builder to amend its answer, and that even if there was error, it was harmless because: (1) the jury, in determining that the builder was not negligent, did not reach the question whether the victim was negligent; and (2) thus there was no prejudice to the owner. The supreme court also held that the record demonstrated that substantial credible evidence supported the jury’s verdict that the builder was not negligent; because the evidence was conflicting; the supreme court deferred to the jury’s determination as to which evidence was more credible.
OUTCOME: The trial court’s judgment was affirmed.
CORE TERMS: jump, amend, bamboo, poles, jury verdict, comparative negligence, skiers, ski, credible evidence, constructed, prejudiced, snowboard, morning, jury’s decision, conflicting evidence, unfinished, harmless, ski area, snowboarders, patrol, verdict form, responsive pleading, reasonable mind, inspected, non-party, apportion, predicate, credible, manager, marked
COUNSEL: For Appellant: Gig A. Tollefsen, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana.
For Appellees: Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, Great Falls, Montana.
JUDGES: JOHN WARNER. We Concur: JIM RICE, JAMES C. NELSON, PATRICIA COTTER, BRIAN MORRIS.
OPINION BY: John Warner
OPINION
[***652] [**274] Justice John Warner delivered the Opinion of the Court. [*P1] Third-party plaintiff Marshall Mountain, LLC (Marshall Mountain) appeals from a judgment entered in the Fourth Judicial District Court, Missoula County, in favor of third-party defendants Board of Missoula, Inc. and Board of Missoula, LLC (Board of Missoula), dismissing its third party complaint after a jury verdict in Board of Missoula’s favor.
[*P2] We restate and address the issues on appeal as follows:
[*P3] 1. Did the District Court err when it granted Board of Missoula’s motion to amend its answer to allege comparative negligence by Chad Upky?
[*P4] 2. Was the jury’s verdict that Board of Missoula was not negligent supported by substantial credible evidence?
BACKGROUND
[*P5] On February 12, 1999, eighteen year old Chad Upky was rendered a paraplegic in a skiing accident at Marshall Mountain ski area. The injuries occurred when Upky skied over a ski jump ramp constructed at Marshall Mountain for use in an upcoming snowboard competition. Upky became inverted when he skied over the jump and was injured when he landed.
[**275] [*P6] Board of Missoula was a local snowboard shop that in the years before Upky’s accident had worked with Marshall Mountain to construct jumps for use in snowboard competitions at the ski area. In prior years, the jumps had been constructed up to two weeks before the competition and had remained open for use by skiers at Marshall Mountain. In 1999, Marshall Mountain’s [***653] owner, Bruce Doering, and Board of Missoula’s co-owner, Wright Hollingsworth, agreed to construct a jump for use in that year’s competition. The ski jump on which Upky was injured was constructed two days before the accident. Doering later claimed, on behalf of Marshall Mountain, that he understood the jump would be open for use before the February 1999 competition. To the contrary, Hollingsworth asserted that he and Doering had agreed the jump would be closed prior to the 1999 competition.
[*P7] On Wednesday, February 10, 1999, before the snowboard competition scheduled for the next Saturday, Hollingsworth went to Marshall Mountain after the ski area closed for the evening and built the jump with the help of Marshall Mountain’s snowcat operator, Tyson Miller. Miller and Hollingsworth worked on the jump from about 10:00 p.m. Wednesday night until 2:00 a.m. the next morning. Hollingsworth later said that he wanted to hand finish the jump in the daylight using shovels. It was his opinion that the jump should not be opened for use until it was finished. He said that before he left early Thursday morning he laid bamboo poles across the jump to indicate that it was closed. Hollingsworth said that he believed the ski patrol would see the bamboo poles when they inspected the area in the morning and would keep the jump closed. Later, members of the ski patrol and other employees of Marshall Mountain disagreed about whether there were bamboo poles across the jump on Thursday morning.
[*P8] No matter whether Hollingsworth had marked the jump as closed with bamboo poles, the jump was open for use by skiers and snowboarders that Thursday and again on Friday. Doering and the ski patrol examined the jump, and it was left open for skiers and snowboarders. Doering stated that he had ultimate authority on whether or not to allow Marshall Mountain patrons to use the jump. Several employees of Marshall Mountain used the jump with no problem.
[*P9] On Friday, the day of Upky’s accident, the jump was open throughout the day. Late in the day, a Marshall Mountain employee suggested to Doering that they close the jump due to changing snow [**276] and lighting conditions. However, Doering decided to keep the jump open. Chris Laws, Board of Missoula’s retail manager, was at Marshall Mountain on Friday. He noticed the jump was open, even though he understood it was supposed to be closed.
[*P10] On Friday evening, Upky and some friends approached the jump. Upky claimed that he tried to slow himself going into the jump by snowplowing with his skis and went over the jump at a controlled speed. Other witnesses to the accident, including Doering and Laws, stated the Upky “bombed” the jump by going into it extremely fast. Upky suffered severe injuries as a result of his fall, including a broken neck that resulted in his paraplegia.
[*P11] In 2002, Upky brought suit against Marshall Mountain, alleging that its negligence was the cause of his injuries. Upky made no claim against Board of Missoula. In its answer, Marshall Mountain denied any negligence and asserted affirmative defenses, including Upky’s comparative negligence. Marshall Mountain filed a third-party complaint against Board of Missoula seeking contribution or indemnification, asserting that Board of Missoula was responsible for any negligence in the construction of the jump. In its answer, Board of Missoula denied it had been negligent and went on to claim that the jump was unfinished when Upky used it and that it had cordoned off the jump to prevent its use prior to the competition, but Marshall Mountain negligently allowed the use of the jump on the day of Upky’s accident. Subsequently, Board of Missoula, in response to a request for admission, admitted that it had left the jump in an unfinished condition and that it was dangerous. However, it qualified the admission to state that the actions of Marshall Mountain in removing the bamboo poles marking the jump closed and allowing its patrons to use the jump were careless and caused Upky’s injuries.
[*P12] Following discovery, Board of Missoula moved for summary judgment, arguing that it was not negligent as a matter of law. The District Court denied the motion for summary judgment in November 2003.
[***654] [*P13] In December 2003, Marshall Mountain and Upky settled Upky’s claim. In March 2004, the District Court noted that because of the settlement only Marshall Mountain’s claims against Board of Missoula remained to be litigated; Upky’s claims against Marshall Mountain were later dismissed.
[*P14] In July 2004, Board of Missoula moved to amend its answer, pursuant to M. R. Civ. P. 15(a), to include a claim that Upky’s negligence, in combination with that of Marshall Mountain, caused his [**277] injuries, and to have the jury determine the extent of his negligence as a non-party under § 27-1-703, MCA. Board of Missoula’s amended answer reasserted the claim in the original answer that Board of Missoula was not negligent and Marshall Mountain was negligent for allowing skiers to use the unfinished jump. The amended answer only added the assertion that both Upky and Marshall Mountain caused or contributed to the damages alleged by Upky. Board of Missoula did not attempt to withdraw its admission that the jump was dangerous. Marshall Mountain opposed the motion, arguing that it came too late and the amendment adding a claim of comparative negligence by Upky would be unfairly prejudicial. The District Court granted the motion to amend.
[*P15] A jury trial on the third-party complaint began December 5, 2005. At trial, numerous witnesses provided conflicting evidence on the events surrounding Upky’s injuries. The witnesses’ testimony varied widely on whether Doering and Hollingsworth had agreed to close the jump prior to the competition, whether Hollingsworth placed bamboo poles on the jump, and how dangerous, if at all, the jump was for skiers and snowboarders. There was also conflicting evidence regarding the exact circumstances of Upky’s fall, specifically how far away he was when he began approaching the jump and how fast he went over the jump.
[*P16] The special verdict form submitted to the jury first instructed it to determine if Board of Missoula was negligent. Only if the jury found that Board of Missoula was negligent was it to decide if Upky and Marshall Mountain were also negligent and fix the percentages of negligence. The jury returned its verdict finding that Board of Missoula was not negligent. Thus, it did not apportion fault. The District Court entered a final judgment in favor of Board of Missoula. Marshall Mountain appeals.
DISCUSSION
[*P17] Issue 1: Did the District Court err when it granted Board of Missoula’s motion to amend its answer to allege comparative negligence by Chad Upky?
[*P18] The Montana Rules of Civil Procedure provide for amendments to pleadings:
[HN1] A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party [**278] may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
M. R. Civ. P. 15(a). [HN2] While amendments are not permitted in every circumstance, we have emphasized that, as Rule 15(a) states, leave to amend should be “freely given” by district courts. Loomis v. Luraski, 2001 MT 223, P 41, 306 Mont. 478, P 41, 36 P.3d 862, P 41. District courts should permit a party to amend the pleadings when, inter alia, allowing an amendment would not cause undue prejudice to the opposing party. Prentice Lumber Co. v. Hukill, 161 Mont. 8, 17, 504 P.2d 277, 282 (1972) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)).
[*P19] Marshall Mountain claims it was prejudiced by the amendment to the pleadings which allowed the jury to consider Upky’s negligence. However, the jury heard all of the evidence concerning the actions of Board of Missoula presented by Marshall Mountain, which included the admission that the jump was dangerous, and nevertheless determined that Board of Missoula was not negligent. Thus, it did not reach the question [***655] of whether Upky was negligent. As the jury did not consider any negligence on the part of Upky in reaching its verdict, there was no prejudice to Marshall Mountain. [HN3] When a special verdict requires a jury to answer a question only if it first determines that a predicate question is answered in the affirmative, and the jury answers the predicate question in the negative, we have consistently held that the party objecting to the submission of the second, unanswered question is not prejudiced. Under such circumstances we consider any error harmless, and decline to interfere with the jury’s decision. See e.g. Payne v. Knutson, 2004 MT 271, PP 17-18, 323 Mont. 165, PP 17-18, 99 P.3d 200, PP 17-18 (concluding there was no prejudice to the plaintiff where the jury was not instructed to apportion negligence among the defendants because the jury found the plaintiff was more than 50% negligent and thus could not recover); Peschke v. Carroll College, 280 Mont. 331, 343, 929 P.2d 874, 881 (1996) (concluding that although a district court erred in admitting a videotape, it went to the issue of causation, which the jury did not reach, and the error was thus harmless); Drilcon, Inc. v. Roil Energy Corp., 230 Mont. 166, 173, 749 P.2d 1058, 1062 (1988) (declining to address appellant’s argument that the special verdict form erroneously included non-parties because the jury apportioned negligence only among the parties to the action and appellant was not prejudiced).
[**279] [*P20] We affirm the District Court’s order allowing Board of Missoula to amend the pleadings to allege Upky’s comparative negligence because Marshall Mountain was not prejudiced by it and any error was harmless.
[*P21] Issue 2: Was the jury’s verdict that Board of Missoula was not negligent supported by substantial credible evidence?
[*P22] [HN4] This Court does not review a jury verdict to determine if it was correct. We review a jury’s decision only to determine if substantial credible evidence in the record supports the verdict. Campbell v. Canty, 1998 MT 278, P 17, 291 Mont. 398, P 17, 969 P.2d 268, P 17; Wise v. Ford Motor Co., 284 Mont. 336, 343, 943 P.2d 1310, 1314 (1997). Substantial evidence is “evidence that a reasonable mind might accept as adequate to support a conclusion” and may be less than a preponderance of the evidence but must be more than a “mere scintilla.” Campbell, P 18.
[*P23] [HN5] It is the role of the jury to determine the weight and credibility of the evidence, and this Court will defer to the jury’s role. Seeley v. Kreitzberg Rentals, LLC, 2007 MT 97, P 21, 337 Mont. 91, P 21, 157 P.3d 676, P 21, overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, P 27, 338 Mont. 19, P 27, 162 P.3d 134, P 27. [HN6] We view the evidence in the light most favorable to the prevailing party. Where conflicting evidence exists, we will not overturn a jury’s decision to believe one party over another. Samson v. State, 2003 MT 133, P 11, 316 Mont. 90, P 11, 69 P.3d 1154, P 11.
[*P24] The record before us demonstrates that substantial credible evidence supports the jury’s verdict that Board of Missoula was not negligent. Hollingsworth testified that he and Doering agreed the jump would be closed prior to the competition. Hollingsworth also testified that he had marked the jump closed with bamboo poles the night it was constructed, and other testimony supported this assertion. There was also evidence that only Marshall Mountain had the ultimate decision-making authority to open or close the jump. Marshall Mountain’s manager, Doering, testified he inspected the jump and thought it was safe. This evidence, which does not include the testimony describing Upky’s actions, provided the jury with an adequate basis to support its decision that Board of Missoula was not negligent. Campbell, P 18.
[*P25] There is also evidence which would tend to show Board of Missoula was negligent. However, because the evidence is conflicting we defer to the jury’s determination as to which evidence is more credible. Seeley, P 21. We conclude that the record contains sufficient [**280] evidence for reasonable minds to conclude that Board of Missoula was not negligent.
[***656] CONCLUSION
[*P26] The District Court did not err when it permitted Board of Missoula to amend its answer, and the jury verdict is supported by substantial credible evidence.
[*P27] Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

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