Appeal from the District Court of Teton County The Honorable Nancy J. Guthrie, Judge.
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
[¶1] On August 3, 2001, while employed as a carpenter by Bancroft Construction, Inc., in Teton County, Wyoming, Jack Dollarhide (Dollarhide) was injured when the raised wooden platform upon which he was standing crashed to the ground. Dollarhide obtained benefits from the Wyoming Worker's Compensation fund, but also filed a co-employee liability action against Scott Bancroft (Bancroft), the owner of the company, and Murray Shattuck (Shattuck), the company's general construction superintendent. That action subsequently was consolidated with a similar action filed by Dollarhide against Michael Johnson (Johnson), the company's project superintendent.*fn1
[¶2] After considerable delay, the first trial resulted in a mistrial due to certain comments made by Dollarhide's counsel during opening statements. The second trial resulted in a jury verdict in favor of Bancroft, Shattuck, and Johnson. In this appeal, Dollarhide challenges the granting of the mistrial and assessment of costs resulting therefrom, and the denial of his motion for entry of default based upon a pretrial change in Johnson's testimony. Finding no error, we affirm.
[¶3] 1. Did the district court abuse its discretion in granting Bancroft's motion for mistrial and assessing costs against Dollarhide?
2. Did the district court abuse its discretion in denying Dollarhide's motion for entry of default?
[¶4] ―The court's ruling on a motion for mistrial . . . is reviewed for an abuse of discretion.‖ Espinoza v. State, 969 P.2d 542, 546 (Wyo. 1998), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 52 (1999); see also Ross v. State, 930 P.2d 965, 968 (Wyo. 1996). ―‗Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.'‖ Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo. 1986)); see also Stroup v. Oedekoven, 995 P.2d 125, 128 (Wyo. 1999).
In determining whether there has been an abuse of discretion, we focus on the ―reasonableness of the choice made by the trial court.‖ Vaughn, 962 P.2d 149, 151 (Wyo. 1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious.
Jordan v. Brackin, 992 P.2d 1096, 1098 (Wyo. 1999).
Hannifan v. Am. Nat'l Bank of Cheyenne, 2008 WY 65, ¶ 36, 185 P.3d 679, 693 (Wyo. 2008) (quoting Terry v. Sweeney, 10 P.3d 554, 557 (Wyo. 2000)). We also review the granting of costs as a sanction under the same standard. Goglio v. Star Valley Ranch Ass'n, 2002 WY 94, ¶ 38, 48 P.3d 1072, 1085 (Wyo. 2002); Welch v. Hat Six Homes, 2002 WY 81, ¶ 10, 47 P.3d 199, 202 (Wyo. 2002); Snyder v. Lovercheck, 2001 WY 64, ¶ 6, 27 P.3d 695, 697 (Wyo. 2001). Where egregious discovery abuse, or similar misconduct, has occurred, the discretion to impose sanctions may include the power to strike pleadings and to enter a default. Stanley Shenker & Assocs. Inc. v. World Wrestling Fed'n Entm't, Inc., 844 A.2d 964, 973 (Conn. Super. Ct. 2003); Pope v. Fed. Express Corp., 974 F.2d 982, 984 (8th Cir. 1992); Combs v. Rockwell Int'l Corp., 927 F.2d 486, 488 (9th Cir. 1991).
[¶5] On August 3, 2001, Dollarhide was working for the company building a residence in Teton County. At some point on that date, he and another employee got onto a wooden platform fitted with guardrails, which platform-sometimes called a ―man-basket‖-was then raised approximately twelve to fifteen feet in the air on the tines of a forklift so the men could attach two beams to the ceiling. The man-basket came apart, and both men fell to the ground, with Dollarhide receiving serious injuries. These basic facts are not in dispute.
[¶6] Dollarhide sued Bancroft, the company's owner, and Shattuck, the company's general construction superintendent. Later, that lawsuit was consolidated with his separate suit against Johnson, the project superintendent. The gist of the cause of action against all three men was that they acted intentionally or in willful and wanton disregard of the known and obvious risks presented by elevating workers off the ground on a flimsy wooden platform. This being the central issue of the case, the two focal questions became whether such was the company practice, and if so, what each man knew about the practice prior to the accident.
[¶7] In their Answers to Dollarhide's Complaints, Bancroft, Shattuck, and Johnson generally denied the allegations, and specifically denied that Dollarhide was directed to use the man-basket. More significantly, in support of a Motion for Summary Judgment, Bancroft and Shattuck relied upon their own affidavits, and Johnson's affidavit, to set forth, inter alia, the following ―facts‖:
1. Before work began on the day of the accident, Johnson instructed the workers to use scaffolding to install the beams, and the workers verbally acknowledged such instruction.
2. Scaffolding was present at the job site for such purpose.
3. During Johnson's temporary absence from the job site, the workers decided on their own to use the wooden man-basket.
4. Neither Bancroft nor Shattuck was physically present at the job site on the date Dollarhide was injured, and neither man had any knowledge prior to the accident that company employees would use the wooden platform in the manner it was used.
5. Neither Bancroft nor Shattuck were ever advised by any employee that a dangerous condition existed because employees were using the ...